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2012 DIGILAW 1136 (JHR)

Vijay Sharma v. State of Jharkhand

2012-08-02

R.R.PRASAD

body2012
ORDER From the acknowledgment receipt received, it does appear that the notice has been served upon the Opp. Party No.2. In spite of that, the Opp. Party No.2 has not chosen to put appearance. 2. Accordingly, heard learned counsel appearing for the petitioners and learned counsel appearing for the State. 3. This application has been filed for quashing of the entire criminal proceeding of G.O. No.127 of 2011 including the order dated 20.10.2011 whereby and whereunder learned Judicial Magistrate, 1st Class, Seraikella, took cognizance of the offence punishable under Section 92 of the Factories Act against the petitioners. The said order is being sought to be quashed on the ground that the order taking cognizance is barred by limitation. 4. Having heard learned counsel appearing for the petitioners and learned counsel appearing for the State, it does appear that an accident took place within the premises of the factory of the petitioners whereby two workmen died. Information of which was given only on 25.05.2011. When the matter was informed to the Factory Inspector, an inquiry was made and then a complaint was lodged on 20.10.2011. Since, the complaint was filed after 90 days of getting information of the occurrence, according to the petitioners, is barred by limitation. 5. Learned counsel appearing for the State submits that from the complaint petition and also from the inquiry report, which has been annexed with this application, it would appear that the petitioners did not comply the order of the Factory Inspector and due to that reason, there had been delay in lodging the complaint. It was further submitted that the orders which had been issued to the petitioners in writings had not been complied with, the case would fall within the proviso of Section 106 of the Factories Act and thereby the period of limitation would extend to six months. 6. Upon it, learned counsel appearing for the petitioners submits that in the instant case, there would be no application of proviso of Section 106 as written order as is there under the proviso, speaks about the compliance of the provision of the Act or the Rules but where complainant passes an order in writing giving command to the petitioners for doing certain things which is not within his competence, that order would not be taken to be written order in terms of the proviso of Section 106 of the Factories Act. 7. 7. Learned counsel appearing for the petitioners, in this respect, referred to Section 9 of the Factories Act, which empowers an Inspector to make inquiry into incident/accident, resulting into death or bodily injury but with respect to such inquiry, he cannot direct these petitioners in writing to do certain act which would be incriminating to the petitioners as it is prohibited under the proviso to Section 9 of the Factories Act. 8. In the context of the submission, one needs to take notice of Section 106 of the Factories Act, which reads as follows:- 106. Limitation of prosecutions.--No court shall take cognizance of any offence punishable under this Act unless complaint thereof is make within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector: Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed. 9. From perusal of the aforesaid Act, it does appear that in the event of contravention of the provision of the Factories Act, a complaint needs to be filed within 90 days of the date of the alleged commission of the offence or from the date when the Inspector comes to the knowledge about the incident or accident. 10. However, the proviso to it, does prescribe that limitation for filing of the complaint would be of six months where it relates disobedience of an order given in writing. 11. Here in the instant case, since the petitioners did not produce the witnesses as had been ordered in writing by the Inspector, a plea is being taken by the State that prescribed period, under the circumstances for filing complaint would be six months and not the three months. 12. 11. Here in the instant case, since the petitioners did not produce the witnesses as had been ordered in writing by the Inspector, a plea is being taken by the State that prescribed period, under the circumstances for filing complaint would be six months and not the three months. 12. The said submission does not appear to be tenable in view of the provision as contained in Section 9 of the Factories Act, which speaks about the powers of the Inspector, which reads as follows:- Section 9: Powers of Inspectors.-Subject to any rules made in this behalf, an Inspector may, within the local limits for which he is appointed,-- (a) enter, with such assistants, being persons in the service of the Government, or any local or other public authority, or with an expert as he thinks fit, any place which is used, or which he has reason to believe is used, as a factory; (b) make examination of the premises, plant, machinery, article or substance; (c) inquire into any accident or dangerous occurrence, whether resulting in bodily injury, disability or not, and take on the spot or otherwise statements of any person which he may consider necessary for such inquiry; (d) require the production of any prescribed register or any other document relating to the factory; (e) seize, or take copies of, any register, record or other document or any portion thereof as he may consider necessary in respect of any offence under this Act, which he has reason to believe, has been committed. (f) direct the occupier that any premise or any part thereof, or anything lying therein, shall be left undisturbed (whether generally or in particular aspects) for so long as is necessary for the purpose of any examination under clause(b); (g) take measurements and photographs and make such recordings as he considers necessary for the purpose of any examination under clause (b), taking with him any necessary instrument or equipment; (h) in case of any article or substance found in any premises, being an article or substance which appears to him as having caused or is likely to cause danger to the health or safety of the workers, direct it to be dismantled or subject it to any process or test (but not so as to damage or destroy it unless the same is, in the circumstances necessary, for carrying out the purposes of this Act) and take possession of any such article or substance or a part thereof, and detain it for so long as is necessary for such examination; (i) exercise such other powers as may be prescribed: Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself. 13. Sub Clause (c) of Section 9, does speaks about the power of the Inspector of making inquiry to an accident or dangerous occurrence resulting into death or bodily injury, but he cannot ask or force the Manager/Occupier of the Factory to produce the witnesses necessarily to be examined to prove the case of the accident, which prohibition is there under proviso to Section 9 of the Factories Act, which says that the person cannot be compelled to answer any question or give any evidence which is self incriminating. Any order in writing by the Inspector directing the petitioners with respect to production of the witnesses to the said incident would certainly be incriminating to the petitioners. 14. Under the situation, the case would never fall within the proviso of Section 106 of the Factories Act rather the case in hand would be covered by the main provision of Section 106 of the Factories Act, which does prescribe of filing a complaint within three months from the date of the occurrence or from the date of the knowledge to the Inspector. 15. 15. Since, cognizance has been taken upon a complaint which has been filed much after 90 days of coming to the knowledge of the occurrence, it is barred by limitation. 16. Accordingly, the order dated 20.10.2011 passed by learned Judicial Magistrate, 1st Class, Seraikella, is hereby quashed. 17. In the result, this application stands allowed. Application allowed.