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Jharkhand High Court · body

2012 DIGILAW 387 (JHR)

Satish Borwankar v. State of Jharkhand

2012-03-19

R.R.PRASAD

body2012
Order Heard learned counsel appearing for the petitioner and learned counsel for the State. 2. This application has been filed for quashing the order dated 24.1.2011, passed in Telco P.S. Case No. 116 of 2008, whereby and whereunder the learned C.J.M., l/e, Jamshedpur has taken cognizance of the offences punishable under Sections 278, 284, 337, 338, 308/34 of the Indian Penal Code against the petitioner and others. 3. The facts giving rise to this application are that on 27.5.2008, Chlorine gas got leaked from cylinders kept at the Power Plant as a result of which it being a substance noxious to the health affected so many persons including one worker of the water purification plant. On such incident, a case was lodged which was registered as Telco P.S. Case No. 116 of 2008. After submission of the charge-sheet, cognizance of the offences, as aforesaid was taken against the petitioner who at the relevant point of time was the Manager. That order is under challenge. 4. The grounds of challenge are that for the same incident when a complaint case C/2 Case No. 1618 of 2008, was filed for violation of the provisions as contained in Section 7A(2)(B) of the Factories Act cognizance of the offence punishable under Section 92 of the Factories Act has been taken and, therefore, two parallel proceedings cannot be allowed to be continued for the same set of allegations, particularly, when the petitioner is being prosecuted under special legislation. Other submission is that though the petitioner is being prosecuted in a case registered on a Police report, but no allegation whatsoever is there that it was the petitioner on whose negligent act the noxious substance got leaked which affected several persons including the worker of the plant. 5. I do find substance in the submission advanced on behalf of the petitioner. Though cognizance of the offences has been taken under Sections 278, 284, 337, 338 and 308 of the Indian Penal Code against the petitioner, but the petitioner has never been alleged to have caused any negligent act causing leakage of Chlorine Gas from the cylinders. In such situation, one can understand that the petitioner is being prosecuted under the principle of vicarious liability. But the I.P.C. save and except some provisions, specifically providing thereof, does not contemplate any vicarious liability on the part of a party, who is not charged directly for commission of offence. In such situation, one can understand that the petitioner is being prosecuted under the principle of vicarious liability. But the I.P.C. save and except some provisions, specifically providing thereof, does not contemplate any vicarious liability on the part of a party, who is not charged directly for commission of offence. This proposition has been laid down in a case of S.K. Alagh vs. State of Uttar Pradesh & Ors. [(2008)5 SCC662]. 6. Here in the instant case, the petitioner has never been alleged to have caused any negligent act, resulting into leakage of Chlorine from the cylinder causing atmosphere noxious to the health. 7. Under this situation, it can easily be said that no offence is made out against the petitioner. 8. Looking the matter from another angle, it be recorded that the petitioner is being prosecuted under the Factories Act for violation of the provision as contained in Section 7 A(2)(B) of the Factories Act which reads as under:- 7 A. General duties of the occupier.-(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory. (2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include- (b) The arrangements in the factory for ensuring safety and absence or risks to health in connection with the use, handling, storage and transport of article and substances. 9. Thus, from perusal of the provision, it does appear that, a duty has been cast upon the occupier to ensue health, safety, welfare of all the workers while they are at work in the factory. Any such negligence on the part of the occupier will entail him prosecution under the Factories Act. In such situation the petitioner is being prosecuted on account of the fact that due to negligence, gas, a noxious substance got leaked and affected many persons including one worker under Factories Act, but at the same time, the petitioner is also being prosecuted under general law on the same accusation that the petitioner did not adopt any safety measure which is not permissible under the law. 10. It be recorded that if the field is covered by the special legislation and also under the general law then in view of the Section 4, one cannot be allowed to be prosecuted under the general law. 10. It be recorded that if the field is covered by the special legislation and also under the general law then in view of the Section 4, one cannot be allowed to be prosecuted under the general law. 11. In this respect provision of Section 4 of the Code of Criminal Procedure reads as follows: 1. All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. 2. All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 12. Sub-section (1) of Section 4 of the Code of Criminal Procedure provides that in absence of any specific provision to the contrary nothing in the Code shall affect any special or local law for the time being in force. However, the conjoint effect of that provision and sub-section (2) of Section 4 would be as follows: 1. That all offences, whether under the Penal Code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. 2. This rule is subject to qualification that in respect of offences under other laws that is to say, under laws other than Indian Penal Code, if there be an enactment regulating the manner of investigation, inquiring into, trying or otherwise dealing with such offences, such enactment will prevail over the Code. 3. The provisions of special or local law will prevail over the provisions contained in the Code unless there is specific provisions to the contrary. 13. Having taken notice of provision of Section 4 of the Code of Criminal Procedure, it would be pertinent to take notice of Section 92 of the Factories Act so as to be ascertained as to whether allegation made in the F.I.R. is within the ambit of Section 92 of the Factories Act. 14. 13. Having taken notice of provision of Section 4 of the Code of Criminal Procedure, it would be pertinent to take notice of Section 92 of the Factories Act so as to be ascertained as to whether allegation made in the F.I.R. is within the ambit of Section 92 of the Factories Act. 14. Section 92 of the Factories Act reads as follows:- "General penalty for offences Save as is otherwise expressly provided in this Act and subject to the provisions of Section 93, it in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extent to (two years) or with fine which may extend to (one lakh rupees) or with both, and if the contravention is continued after conviction, with a further fine which may extend to (one thousand rupees) for each day on which the contravention is so continued : Provided that where contravention of any of the provisions of Chapter-IV or any rule made thereunder or under Section 87 has resulted in all accident causing death or serious bodily injury, the fine shall not be less than (twenty five thousand rupees) in the case of any accident causing death, and (five thousand rupees) in the case of an accident causing serious bodily injury." 15. From perusal of the provisions as contained in Section 92 of the Factories Act, it is evidently clear that any allegation with respect to contravention of any of the provisions of Act or rule can easily be subject matter for prosecution under Section 92 of the Factories Act. Here in the instant case the allegation upon which F.I.R. has been lodged is also the subject matter of prosecution under Factories Act. 16. Further, I do find that the provision as contained in Section 105 of the Factories Act does speak as to in which manner offences under the Factories Act is to be dealt with. The said provision reads as follows:- Cognizance of the offence.-(1) No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, any Inspector. The said provision reads as follows:- Cognizance of the offence.-(1) No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, any Inspector. (2) No Court below that of a Presidency Magistrate or of a Magistrate of the 1st Class shall try any offence punishable under this Act. 17. Thus, it is evidently clear that the provision of the Factories Act does stipulate about investigation, enquiry or trial of the offences falling within the provisions of the Factories Act and, therefore, the provisions of the Factories Act being a special legislation would prevail over the provisions of the Code of Criminal Procedure. In other words, it can be said that the investigation, enquiry or the trial relating to the matter failing within the special legislation is not permissible to be gone into under the general law. 18. Under the circumstances, the order dated 24.1.2011 in Telco P.S. Case No. 116 of 2008 corresponding to G.R.No. 1150 of 2008, under which cognizance of the offences has been taken against the petitioner, is hereby, quashed. 19. In the result, this application stands allowed.