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2012 DIGILAW 492 (BOM)

State of Maharashtra v. Chandrakant P. Rane

2012-03-05

ABHAY M.THIPSAY

body2012
Judgment : ORAL JUDGMENT:- 1. This appeal filed by the State of Maharashtra, is directed against the judgment and order passed by the 7th Jt. Judicial Magistrate First Class, Jalgaon in S.C.C.No.2901/2007, acquitting the respondent, who was the sole accused in the said case, of offences punishable under sections 23, 24 (c) and 30 of The Indian Boilers Act, 1923 (hereinafter referred to as 'The said Act'), on the allegation that the respondent had contravened the provisions of Sections 6(c), 6(e) and Section 13 of the said Act, and also of Rule 121 of The Maharashtra Boiler Rules, 1962. 2. I have heard Smt. Y.M.Kshirsagar, learned Additional Public Prosecutor for the State. I have heard Mr. S.S.Bora, learned advocate for the respondent. I have gone through the evidence adduced during the trial. I have gone through the entire Record and Proceedings. I have carefully gone through the impugned judgment. 3. The prosecution was launched on the basis of a complaint filed by Shri S.D.Mankar, Deputy Director of Steam Boilers. The case of the complainant as put forth in the complaint was as follows:- That the respondent Shri Chandrakant Rane is the proprietor of M/s Mak Textchem products, Jalgaon. The said Chandrakant Rane is the owner of a boiler having registration No.UP/428, installed in the premises of M/s Mak Textchem Products, which is a factory as defined under section 2(d) of the said Act. That, when the complainant casually visited the said factory on 22.3.2007 at about 11.00 a.m. while he happened to be in the said locality, he found that boiler no.UP/428 was in use with active fire inside the furnace and steaming at pressure 70 PSI (pound per square inch). On verification of certificate No.63 in form VI of said boiler, its validity was found to have been expired on 27.9.2006, but the boiler was in use without any certificate. The complainant also observed that no proper or fit and competent person was present to hold the charge of the boiler. According to the complainant, one Suryawanshi - a Supervisor - was present, in the premises. The complainant also observed that blow down line provided to the boiler was missing. Mr. Suryawanshi was asked to stop the boiler immediately. Boiler was accordingly stopped by putting off fire and releasing the boilers steam pressure, to zero Kg/cm2. According to the complainant, one Suryawanshi - a Supervisor - was present, in the premises. The complainant also observed that blow down line provided to the boiler was missing. Mr. Suryawanshi was asked to stop the boiler immediately. Boiler was accordingly stopped by putting off fire and releasing the boilers steam pressure, to zero Kg/cm2. Explanation for the contravention of the legal provisions was sought for from the respondent vide a letter dated 24.3.2007. The claim in the complaint is that, the respondent admitted by a letter dated 4.4.2007, having used the boiler without carrying out the repairs which had been suggested. That, since the explanation was not found convincing, the same was not accepted. After obtaining the requisite sanction under section 26 of the said Act, the complaint was filed against the respondent. 4. During the trial, the complainant examined himself as a witness. A number of documents were tendered in evidence, marked and exhibited. The defence of the respondent (here in after referred to as ‘the accused’) as appearing from the cross examination of the complainant and his statement recorded under the provisions of Section 313 of the Code of Criminal Procedure, is of denial. According to the accused, the boiler was not running actually and that the boiler had been already shut down. 5. Upon considering the evidence adduced during the trial, the learned Magistrate concluded that the complainant had failed to prove the charges levelled against the accused. The learned Magistrate, inter alia, doubted ‘Whether the complainant had indeed paid a visit to the said factory on 22.3.2007 as claimed by him?’ 6. Some correspondence had taken place between the accused and the office of the Deputy Director of Steam Boiler with respect to the said Boiler, before the complainant's alleged visit on 22.3.2007. However, the complaint does not make any reference to the previous happenings. All that it shows is that the complainant just happened to be in the locality and therefore, casually visited the factory of the accused and found the boiler to be working. However, in the course of trial, the previous correspondence between the accused and Directorate of Steam Boiler was brought on record, and tendered in evidence. 7. Though I have heard the matter extensively, it is not necessary to have a detailed discussion of all the contentions raised on behalf of the state. However, in the course of trial, the previous correspondence between the accused and Directorate of Steam Boiler was brought on record, and tendered in evidence. 7. Though I have heard the matter extensively, it is not necessary to have a detailed discussion of all the contentions raised on behalf of the state. What is necessary to be seen is ‘Whether the doubt felt by the Magistrate about the visit, allegedly, paid by the complainant to the Factory of the accused and about his claim that the boiler was actually working at that time was justified or not ?’. 8. The reasons for such doubt, as felt by the Magistrate, are found in paragraph No.5, 7 and more particularly in paragraph no.8 of the impugned judgment. The Magistrate in paragraph No.5 of the impugned judgment observed that :- “Complainant’s visit dated 22.3.2007 had its link with his previous visit dated 25.9.2006 was brought on record only during the cross examination.” The fact that the validity certificate for the use of the boiler was to expire on 27.9.2006 and that, before that, the accused had applied for its renewal, had paid the requisite fees etc. was not stated initially, but was brought out in the course of the cross examination. It transpired that the complainant had visited the factory on 25.9.2006, and in that regard, the Magistrate observed that no communication with respect to the said visit was sent to the accused within a period of 48 hours as required by the provisions of Clause (C) of sub section (5) of the section 8 of the said Act. These observations made by the learned Magistrate are factually correct but, not much importance needs to be given to those aspects, as the finding of acquittal has not been based on these aspects. 9. In paragraph No.7 of the judgment, the learned Magistrate observed that, the offence was consisting of use of the boiler without having a validity certificate. The Magistrate, then, observed that burden of proving his visit to the factory and that the Boiler was in use at the material time, lied on the complainant. The view of the Magistrate in this regard is proper and correct. 10. It is in this background, the Magistrate felt a doubt about the complainant’s visit and his claim that during his visit, he found that the boiler was in use. The view of the Magistrate in this regard is proper and correct. 10. It is in this background, the Magistrate felt a doubt about the complainant’s visit and his claim that during his visit, he found that the boiler was in use. The Magistrate observed that the complainant had admitted in his cross examination that he did not record the statement of the said Mr. Suryawanshi, Supervisor of the Factory, who was present during the complainant’s visit as stated in the complaint itself. The Magistrate also observed that the complainant did not prepare any panchnama or did not make any inspection note. Though the complainant claimed to have made a personal note, the same was not produced before the court. The Magistrate noted that on the contrary, the complainant claimed that there was no procedure under the Boilers Act regarding preparation of spot panchnama or recording of the statements. 11. In paragraph no.8 of the impugned judgment the learned Magistrate observed as follows:- “8. It is material to note that Boilers Act makes provision of penalties for breach of rules and regulation. The Maharashtra Boiler Rules 1962 provides procedure. Chapter V of the Rules is very clear regarding procedure of inspection. Section/Rule 31 of the Rules is very specific regarding entries in memorandum of inspection books.” 12. The learned Magistrate then went on to observe that as the complainant had failed to produce the necessary documents which could have been the best evidence in favour of the complainant to prove his visit dated 22.3.2007, it was difficult to place reliance on his evidence. The Magistrate noted that, at the fag end of the argument, the complainant submitted before the court that, he was ready to submit the documents, if directed by the Court. In that regard, the Magistrate observed that ‘Court was not supposed to collect the evidence against the accused. It was the duty of the complainant to prove his own case’. The learned Magistrate further observed as follows : “For the sake of argument, even if it is believed that complainant being a public servant, might have conducted the visit to the company, but nothing has been brought on record to prove the same.” 13. It was the duty of the complainant to prove his own case’. The learned Magistrate further observed as follows : “For the sake of argument, even if it is believed that complainant being a public servant, might have conducted the visit to the company, but nothing has been brought on record to prove the same.” 13. Thus, the Magistrate was of the opinion that, the fact that complainant indeed paid a visit to the factory in question and that, he indeed noticed that the boiler was in use at the time of his visit was not satisfactorily proved. 14. The view of the matter as taken by the Magistrate cannot be said to be unreasonable or impossible. 15. It is difficult to believe that there are no rules or guidelines prescribed for the casual visits of an inspector under the Act. This is the claim made by the complainant and since nothing has been placed before me to contradict that claim, I do not wish to go deeper into the matter and find out whether or not there are such rules or guidelines prescribed for such inspection under the Boilers Act or the Factories Act. What however, needs to be observed is that, the powers conferred by law on public servants are necessarily to be governed by some rules or procedure for their exercise. Otherwise, it would be impossible to check the arbitrary or mala fide exercise of such powers. Moreover, when the complainant wanted that his case should be believed, and when according to him, he had evidence in his possession for proving his assertions, it was unwise on his part not to have produced such evidence before the Magistrate. The attitude that merely his oral word should be believed by the Court, even though according to his own say, evidence to corroborate his testimony was available, but was still not produced by him, is improper. When he visited the premises of the accused without creating any record, when he did not produce any record of such visit, if at all made by him thereafter, when he was unable to give any description of the person or persons present there, he ran the risk of having his evidence doubted by the Court. 16. When he visited the premises of the accused without creating any record, when he did not produce any record of such visit, if at all made by him thereafter, when he was unable to give any description of the person or persons present there, he ran the risk of having his evidence doubted by the Court. 16. Before this court, it was submitted by the complainant in the course of the hearing that he has, in fact, in his possession a video clip, recording what he had observed during his casual visit and inspection on 22.3.2007. This fact was neither disclosed in the complaint, nor any such video clip was relied upon at any later stage, before the learned Magistrate. The complainant’s attitude that he need not keep any record of his casual visits and he need not even keep any record of what he observed during such visits, does not appear to be proper. The complainant, being a public servant, is required to exercise the powers vested in him by the relevant statutory provisions, in accordance with a fair and transparent procedure. It may not be out of place to observe that if an inspector goes and visits any factory without creating any previous record of his intended or proposed visit, and if even during such visit, he does not create any record of such visit, or does not inform anyone about availability of such record with him, he would retain with him an option as to whether or not he should disclose about his visit and the observations made by him during such visit, to his superiors, or to place the fact of visit on official record of the department. He may, if he so chooses, not mention about his visit at all. This would give an obvious scope for malpractices. From this angle also, it would be essential for an inspector - or any public servant for that matter- to keep record of his actions and mention about the existence of such record, at the earliest. 17. The principles of appreciation of evidence while dealing with the appeals against acquittal are well settled. It is well settled that where the view taken by the trial court leading to the acquittal is a possible view of the matter, this Court would not interfere with that view, even if some other view of the matter also would be possible. The principles of appreciation of evidence while dealing with the appeals against acquittal are well settled. It is well settled that where the view taken by the trial court leading to the acquittal is a possible view of the matter, this Court would not interfere with that view, even if some other view of the matter also would be possible. 18. The view of the matter, as taken by the Magistrate is certainly a possible view of the matter. No interference, with the impugned order is, therefore, warranted. 19. The appeal is dismissed.