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2011 DIGILAW 91 (JHR)

Prashant Bothra v. State of Jharkhand

2011-02-14

D.K.SINHA

body2011
JUDGMENT DK Sinha. J. -The petitioners in both the petitions have invoked the inherent jurisdiction of this Court under Section 482 Code of Criminal Procedure for their entire criminal proceeding and cognizance orders in C/2 Case No. 73 of 2007 (in Cr.M.P. No. 954 of 2009) as also in C/2 Case No.78 of 2007 (in Cr.M.P. No. 957 of 2009) for almost common cause wherein the Chief Judicial Magistrate, Seraikella took the cognizance of the offence under Section 95 of the Factories Act in both the complaints filed by the O.P. No. 2 Factary Inspector. 2. Common prosecution story in both the complaints was that on 24.7.2007 one workman Nitai Karmakar while was cleaning the kiln no. 2 by entering inside the kiln and was using electric lamp, he came in contact with necked electric wire and sustained electric shock at about 3.55 p.m. He was immediately removed and brought to the Hospital where he was declared dead. On receipt of the information about such mis-happening, the complainant-Factory Inspector visited the site of accident. He by his letter No. 346 dated 27.7.2007 sought for the following registers/information’s:- (i) Attendance Register, (ii) Adult Workman Register. (iii) Accident Register and (iv) Salary Payment Register. 3. It was alleged in the complaint C/2 Case No.73 of 2007 that the information as sought for were to be furnished by the Occupier and Manager by 31.7.2007 but despite such communication in writing aforesaid, the petitioners being the Occupier and the Manager of M/s Kohinoor Steel (Pvt.) Limited did not. produce such documents. registers and thereby each of them violated the provisions of Rule 102 of the Bihar Factory Rules, 1950 adopted by State of Jharkhand and thereby committed offence punishable under Section 95 of the Factories Act, 1948. The complaint was registered on 11.12.2007 against the petitioners (in Cr.M.P. No. 954 of 2009). 4. Mr. produce such documents. registers and thereby each of them violated the provisions of Rule 102 of the Bihar Factory Rules, 1950 adopted by State of Jharkhand and thereby committed offence punishable under Section 95 of the Factories Act, 1948. The complaint was registered on 11.12.2007 against the petitioners (in Cr.M.P. No. 954 of 2009). 4. Mr. Indrajit Sinha, learned Counsel for the petitioners (in Cr.M.P. No.957 of 2009) submitted that even if taking the entire facts to be true there was no occasion for the Opposite Party No. 2- Factory Inspector to file a separate prosecution alleging violation of Rule 102 of the Bihar Factory Rules (adopted by State of Jharkhand) as the petitioners should have been prosecuted in the single proceeding i.e. C/2 Case No. 73 of 2007 and not by initiating a separate, prosecution having given rise to Complaint Case No. C/2 Case No. 78 of 2007 against the petitioners for the same accident. 5. It would be evident from the contents of C/2 Case No. 78 of 2007 that the information as referred to hereinbefore, which was called for by the Factory Inspector-O.P, No.2 by the letter No. 403 dated 27.8.2007 and the registered letter vide memo No. 424 dated 24.9.2007 were sent to the petitioners being the Occupier and the Manager of the said Factory were to be complied by 30.8.2007 which could not be and that non-compliance' of the instruction was violation of Rule 102 of the Rules which attracted an offence under Section 95 of the Factories Act, 1948. Admittedly, there was no different cause of action except that memos and registered letters were issued on different dates. In Complaint Case C/2 Case No. 73 of 2007 the memo and registered letters were issued by the Factory Inspector-Opposite Party No. 2 to the petitioners respectively on 23.7.2007 and 20.8.2007 with the limitation to present all those registers information’s by 31.7.2007 whereas in C/2 Case No. 78 of 2007 the Factory Inspector issued memo No. 403 on 27.8.2007 and registered letter on 24.9.2007 to the petitioners to produce those documents by 30.8.2007 to which petitioners did not comply the directions. 6. Mr. 6. Mr. Sinha, the learned Counsel submitted that it was settled law that in a case where more than one offence were alleged to have been committed out of single incident then subsequent prosecution on the subsequent information would result in abuse of the process of the Court. In the instant case the offence alleged was committed on 31.7.2007 the date by which the petitioners could not produce the documents/information called for by the complainant-Factory Inspector. Even if the petitioners could not be able to comply the instructions made in the letter, they should not have been criminally prosecuted as they were protected under Article 20 (3) of the Constitution of India by which they were not compelled to give any evidence which would tend to incriminate them and similar safeguard Was provided to them also in the proviso appended to Section 9 of the Factories Act. 7. The Factory Inspector-O.P. No.2 was enquiring into an accident into death of a workman and during course of enquiry he demanded certain documents by sending letters through various modes. Section 9 of the Act empowers the Inspector to enquire into any accident which also empowers him to seize or take copies of registers, records or other documents or any portion thereof as he might consider necessary in respect of an offence punishable under Section 95 of the Act, however, subject to proviso which speaks; "Provided that no person shall be compelled under this Section to answer any question or give any evidence tending to incriminate himself. II 8. Mr. Sinha the learned Counsel asserted that in view of such proviso of Section 9 of the Act, the petitioners could not have been held criminally liable under Section 95 of the Act for the alleged violation of Rule 102 of the Bihar Factories Rules, 1950 (adopted by the State of Jharkhand) for non-production of the required documents registers though the petitioners had requested for the extension of time. 9. It was settled law that evidence included documentary evidence (Section 3 of the Evidence Act, 1872) thus compelling the Occupier or the Manager to produce documents in purported exercise of powers under Section 9(d) in course of enquiry conducted by the Inspector in exercise of powers under Section 9(c) having tendency to incriminate the occupier and/ or the Manager was prohibited by the 'proviso' to Section. 9 of the Act and if production documents by the Occupier which tend to incriminate him was prohibited then the prosecution of the petitioners under Section 95 of the Act would tantamount to misuse of the process of the Court. Normal function of a proviso was an exception to the statute or Rule framed within the purview of the enactment. 10. Having regard to the facts and circumstances of the case, I find substance in the arguments that in an interpretation of the proviso to Section 9 of the Factories Act prohibits then Inspector of Factory cannot be able to successfully enquire into an accident as the Manager or Occupier would also seek protection in terms of the proviso to Section 9 (c) and 9 (e) of the Act. The Factories Act still empowers to an Inspector to enter into a factory premises, make examination of persons and seize or take all copies of registers and other documents that might be considered necessary in respect of alleged offence under the Act. The power of entry and seizure of documents by Factory Inspector was not curtailed by the proviso of Section 9 of the Act and therefore, there would not be any hindrance in the enquiry conducted by an Inspector into an accident. In such a situation the proposition of harmonious construction would come to play and thereby it could safely be inferred that proviso did not create an exception to the exercise of powers by the Inspector hut the Inspector can exercise its power for inspection of a factory premises, examination of the documents. registers and may make seizure' of relevant registers/documents. Any construction of Section 95 without considering the restriction imposed upon the exercise of powers upon an Inspector by virtue of proviso to Section 9 would render the Act unworkable. The proviso to Section 9 not only curtails powers of an Inspector in a particular situation but also creates a right in favour of the Occupier and the Manager of the Factory. The O.P. No.2-Factory Inspector by entering into appearance in the Misc. Petitions filed counter-affidavits. The proviso to Section 9 not only curtails powers of an Inspector in a particular situation but also creates a right in favour of the Occupier and the Manager of the Factory. The O.P. No.2-Factory Inspector by entering into appearance in the Misc. Petitions filed counter-affidavits. The provisions of law has not been disputed and it was submitted therein that both the complaints were filed within the statutory period of limitation for the violation of Rule 102 of the Rules which attracted offence against the Occupier and the Manager i.e. the petitioners herein under Section 95 of the Factories Act. The Counsel for the petitioners has finally not disputed such contention. yet. I find that the prosecution of the petitioners in both the petitions, in the given situation is unsustainable under law. Therefore, the criminal prosecution of the petitioners tantamounts to miscarriage of justice, accordingly, the criminal prosecution of the petitioners in Complaint C/2 Case No. 73 of 2007 and Complaint C/2 Case No. 78 of 2007 pending before the C.J.M., Seraikella are quashed and both the petitions are allowed.