JUDGMENT Heard learned counsel appearing for the petitioners and learned Counsel appearing for the State. 2. This application has been filed for quashing of the order dated 6.12.2004 passed by the then Chief Judicial Magistrate, In-charge, Jamshedpur in C/2 case no.5538 of 2004 whereby and whereunder cognizance of the offence punishable under Section 92 of the Factories Act has been taken against the petitioners. 3. The case of the complainant is that two workmen, namely, Ramu Kumar and Shiva Giri were engaged on 8.9.2004 for changing three way valve bush pin of the gas recovery system. For that purpose, when those two workmen were fixing scaffolding inside the chimney with the help of steel wire, there was sudden blast, as a result of which, both the workmen sustained extensive burn injuries. Ramu Kumar died at the spot whereas other workman, Shiva Giri, who was removed to hospital succumbed to his injuries on 10.9.2004. The matter was immediately reported to the Inspector of Factories, Jamshedpur, Circle No.1. 4. The Inspector of Factories held enquiry to know about the cause of explosion. During enquiry, it was suspected that due to back flow, L.D gas accumulated at the place of occurrence which formed explosive mixtures which when came in contact of source of ignition, got exploded. In the enquiry report, the manner in which gas recovery system does work has been given in detail. At the same time, descriptions of its main components have also been given. As per the enquiry report, during steel making process, L.D gas is generated at L.D. converter which is provided with separate support recovery system so that L.D gas be retrieved to gas holder (a part of gas recovery system). L.D converter is connected to gas recovery system at the flare stack which does have three way valve to divert gas flow from the flare stack to gas holder. Excess gas is burnt at flare stack before it is released to the atmosphere. Gas recovery system does have following components to check back flow of the gas from gas holder to flare stack.-- (a) Water seal check valve – It is provided to enable safe isolation of the recovery system under normal operation and under shutdown. (b) Quick dump U seal – A quick dump water U-seal has been provided as a backup of water seal check valve for isolation from gas holder and recovery system. (b) Quick dump U seal – A quick dump water U-seal has been provided as a backup of water seal check valve for isolation from gas holder and recovery system. (c) Slip plate valve – It is provided in between the water seal check valve and three way valve to prevent return of any gases from the system including gas holder. It is totally mechanical blanking and is designed to use as extra precaution to prevent back flow of any gases at the time of shutdown. (d) 3 way valve – Function of this valve is to select gas direction whether gas will be recovered or the gas will be flared. (e) By pass valve – During the malfunction of 3-way valve this valve will open and gas will be flared. 5. During enquiry, it was found that only quick dump water U-seal and water seal check valve were being used whereas 3rd slip plate valve was not under operation which is required to be fixed to take extra precaution to prevent any possibility of back flow of the gases. It was suspected that on account of some fault being developed with, quick dump water U-seal and water seal check valve and also on account of 3rd slip place being not used there was back flow of L.D gas which might have been ignited by the frictional spark resulting into explosion. 6. On the basis of enquiry report, a complaint was lodged which was registered as C/2 case no.5538 of 2004 wherein it was alleged that the management and also the proprietor of M/s. R.K.G Industries who has been entrusted the work of changing the valve violated the provision as contained in Rule 55-A(2) of the Bihar Factories Rules, 1950 and at the same time, violated the provision of sub-rule (12) of Schedule XIII of the Jharkhand Factories Rules by not carrying out periodical tests of valve by competent persons to ensure effective working of water seal check valve and U water seal system. 7. Upon filing of such complaint, cognizance of the offence punishable under Section 92 of the Factories Act was taken against the petitioners, vide order dated 6.12.2004 which is under challenge. 8. Mr.T.R.Bajaj, learned Sr. 7. Upon filing of such complaint, cognizance of the offence punishable under Section 92 of the Factories Act was taken against the petitioners, vide order dated 6.12.2004 which is under challenge. 8. Mr.T.R.Bajaj, learned Sr. counsel appearing for the petitioners submitted that after holding enquiry, Factory Inspector was not sure as to how explosion did take place at the time when two persons were engaged for fixing valve in gas recovery system, rather it was only speculation on the part of the Factory inspector to come to the conclusion that L.D gas may have been accumulated at the site of accident due to back flow of the gases on account of fault in water seal and water seal check valve. Therefore, accepting the conclusion which though is based on surmises, it can be said that it was pure case of accident. 9. In this respect it was submitted that in the process of steel making L.D gas gets released which is restored in the gas holder of the gas recovery system. When there happens to be production of excess gas then, it is allowed to be vent out from the system through chimney through three way valve. 10. Learned counsel by referring to diagram of gas recovery system annexed with this application did point it out that in order to prevent back flow of the gas from gas holder to the recovery system two full proof seals are being used. One is quick dump water seal and the other is water seal check valve which will never allow to have back flow of the gas from gas holder to recovery system. 11. Further it was pointed out that according to enquiry report, slip plate valve was not used but from the report of the Factory Inspector, it would appear that slip plate valve is being used to take extra precaution. 12. It is never the case of the prosecution that the aforesaid two water seal valve and water seal check valve were not functioning, rather it is only suspicion on the part of the Factory Inspector that L.D gas got accumulated at the place of accident on account of back flow of the gas but had that been true, persons who were working would have died instantaneously without there being explosion as L.D gas happens to be too poisonous as it contains Carbon Monoxide and Carbon Dioxide. 13. 13. Thus, it was submitted that on speculation that on account of fault being developed in the water seal, L.D gas accumulated and got exploded, one cannot be prosecuted under the Factories Act. More so, for contravention of provision as contained in Rule 55-A(2) as in the aforesaid circumstances, nobody could apprehend that any accident would occur at the time of changing the valve. 14. Further it was submitted that Factory Inspector in its report has reported that slip plate valve had not been used but according to the report itself that was being used for taking extra precaution to prevent back flow of the gases and in such situation, there may not be any contravention of the provision as contained in sub-rule(12) of Schedule XIII of the Jharkhand Factories Rules. 15. Under the circumstances, it was submitted that order taking cognizance is fit to be quashed. 16. As against this, learned counsel appearing for the opposite party submitted that it is true that it has been suspected that accident occurred on account of L.D gas being accumulated at the site where the accident took place which got exploded when on account of friction there was ignition but at the same time, it has been stated that since one valve had not been used, there was back flow of the L.D gas and in such situation, order under which cognizance of the offence has been taken never warrants tobe quashed. 17. Having heard leaned counsel appearing for the parties and on perusal of the record, it does appear that during the process of steel making, L.D gas, a very poisonous gas gets released which is restored in the gas holder of the gas recovery system. If there happens to be production of excess gas, then it is allowed to be vent out from the system through Chimney through three way valve system. 18. Further it appears that in order to prevent back flow of the L.D gas from gas holder to recovery system, quick dump water seal is used at the first point whereas water seal check valve is used in the system at another point. Those seals, according to the petitioners, are sufficient to prevent back flow of L.D gas from gas holder to the system. Those seals, according to the petitioners, are sufficient to prevent back flow of L.D gas from gas holder to the system. In the system slip plate valve is also being used to check back flow but even according to the Factory Inspector, that is being used for taking extra precaution. However, the case of the prosecution is that on account of some defect being developed in the aforesaid two seals and also on account of slip plate valve being not used, there was accumulation of the L.D gas which got exploded but it is only the speculation that water seals were not functioning. On such speculation any prosecution for violation of the provision as contained in Rule 55-A(2) would be quite bad. 19. At this stage, one may take notice of the provision as contained in sub-rule(2) of Rule 55-A which reads as follows: “No person or work shall be carried on in any factory and no person shall be allowed to work on any process or any machinery, plant or equipment or in any part of a factory or in any other work in such manner as may, or is likely to cause any accident or any bodily injury.” 20. From the case of the prosecution, it is evident that nobody was knowing that L.D gas had been accumulated at the place where the accident took place. In such situation, if the persons were allowed to work at that place, one cannot be said to have contravened the aforesaid provision as in absence of any knowledge that the gas got accumulated at the site, one may not apprehend that it may cause accident or any bodily injury. 21. So far the allegation of not carrying out periodical tests of valve by competent persons to ensure effectiveness of water seal valve and U-water seal system is concerned, it be stated that during equiry though written interrogatories when it was asked as to whether water seal had been tested before the accident took place it was immediately replied that it had already been tested and were functioning properly. In such situation, any prosecution of the petitioners would be quite bad. 22. Accordingly, the court seems to have committed illegality in taking cognizance of the offence punishable under Section 92 of the Factories Act and hence, the order dated 6.12.2004 is hereby quashed. 23. In the result, this application stands allowed.