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2015 DIGILAW 929 (JHR)

Siddhartha Misra v. State of Jharkhand

2015-08-06

RONGON MUKHOPADHYAY

body2015
Order : In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with F.A. No. 01 of 2012 including the order dated 22.08.2012 passed by the learned C.J.M., Bokaro, whereby and whereunder cognizance has been taken for the offence punishable under section 92 of the Factories Act. 2. The prosecution story as would appear from the prosecution report filed by the Factories Inspector, Bokaro Circle No. 2, Bokaro, is that M/s HPCL New Depot Project, BIADA, Balidih, Bokaro is an unregistered factory, whose documents relating to the registration have not been submitted in the office of the Factories Inspector. 3. It has been stated that the construction work was being carried out at the site by different agencies, in which around 150 workers were engaged in construction of buildings and oil tanks. It has been alleged that on 3.4.2012, when work was being done at the southern corner of under construction plant by one Mukesh Kunwar Singh and Shri Pintu Kumar Singh under the supervision of Shri Atul Kumar, Site Engineer of M/s Ram Kripal Singh Construction Pvt. Ltd., Mukesh Kunwar Singh was suddenly hit on the head by a steel column and resultantly he died. It has further been alleged that if there had been proper invigilation by the Management and if the worker had been from going to the place of accident, the incident might not have happened and in such circumstance the Management has violated the directions as given in Section 7A (2(c) of the Factories Act, 1948 and is also violative of Rule 55A (2) of the Jharkhand Factories Rules, 1950. 4. Heard Mr. Delip Jerath, learned counsel for the petitioners and learned APP for the State. 5. Learned counsel for the petitioners has submitted that the Depot in question was not operational when the incident had taken place, as such the provisions of the Factories Act would not be applicable. It has been submitted that on 5.12.2012 much after the incident, application has been made by the Company, in which the petitioners are employed as Chief Regional Manager and Manager cum Project Incharge for Registration & Grant of Licence. It has further been submitted that the deceased Mukesh Kunwar Singh was an employee of M/s Ram Kripal Singh Construction Pvt. Ltd., which was in the process of constructing the Depot. It has further been submitted that the deceased Mukesh Kunwar Singh was an employee of M/s Ram Kripal Singh Construction Pvt. Ltd., which was in the process of constructing the Depot. It has also been submitted that since no manufacturing process was being carried out in the place of incident, the same as such does not come within the definition of a 'Factory' and resultantly the Factories Act would not be applicable in such circumstances. Mr. Jerath, learned counsel for the petitioners, has submitted that the licence was granted for construction of civil buildings and sheds at HPCL Bokaro on 13.04.2007. He has further submitted that as per the general terms and conditions of the work contract, it has been specifically agreed upon that the owner has absolutely no liability whatsoever concerning the employees of the contractor. So far as the safety provisions are concerned, the agreement specifies that it is the contractor, who shall arrange for the safety provisions and shall also observe and abide by all fires and safety regulations of the owner. In such circumstance, therefore, it has been submitted that it is the contractor, who is responsible for the incident and the petitioners can never be considered to be responsible for the incident. Mr. Jerath, learned counsel for the petitioners, has submitted that the incident had taken place on 3.4.2012 and admittedly it came to the knowledge of the complainant on 4.4.2012 but the complaint was instituted on 22.08.2012, which is time barred under the provisions of Section 106 of the Factories Act. 6. Learned APP, on the other hand, has submitted that on coming to know about the incident, the complainant had taken steps for according of sanction by the authorities and only after the sanction for prosecution was accorded vide Memo No. 1572 dated 14.08.2012, the complainant has lodged the case on 22.08.2012 and in such circumstances sufficient explanation has been enumerated by the complainant for the delay in instituting the complaint. It has further been added that the petitioner no. 1 is the occupier of the Factory and since the work was being carried on behalf of M/s HPCL, the occupier or the petitioner no. 2, who was the Manager cum Project Incharge could not be absolved from the liability of facing criminal prosecution. 7. It has further been added that the petitioner no. 1 is the occupier of the Factory and since the work was being carried on behalf of M/s HPCL, the occupier or the petitioner no. 2, who was the Manager cum Project Incharge could not be absolved from the liability of facing criminal prosecution. 7. Admittedly, the work at the site was being carried out by M/s Ram Kripal Singh Construction Pvt. Ltd. at the instance of M/s HPCL. The petitioner no. 1 is the Chief Regional Manager of HPCL, Ranchi, Retail Regional Office, whereas the petitioner no. 2 is the Manager cum Project Incharge, HPCL, Bokaro. The deceased was an employee of the contractor and in terms and conditions of the work contract, the safety precautions, as has been enumerated at clause 6.d were to have been taken by the contractor himself. Clause 6.a. onwards deals with the liability of the contractor for engaging or employing persons for the execution of work. It has been categorically mentioned therein that the owner has absolutely no liability whatsoever concerning the employees of the contractor. In such circumstances, responsibilities, duties and liabilities of the contractor have been fixed. So far as the question of limitation is concerned, it would be apt to refer to Section 106 of the Factories Act, 1948 which reads as follows:- 106. Limitation of Prosecutions.-No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made 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. [Explanation.-For the purposes of this section.- (a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues; (b) Where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired.] 8. A perusal of the provision, as enumerated in Section 106 of the Act, puts a bar on the Court in taking cognizance if the complaint is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. 9. Admittedly, the prosecution report dated 22.08.2012 suggests that the complainant had come to know about the incident on 4.4.2012 because as per his own showing the complaint was to have been instituted by 3.7.2012. The complainant had filed the complaint with an explanation that since the sanction was accorded by the Sanctioning Authority after the period for institution of the complaint had expired, in such circumstances, the delay had occurred. The order of sanction as contained in Memo No. 1572 dated 14.08.2012 reveals that the application for sanction was made vide letter dated 19.06.2012, but nothing has been brought on record with respect to any plausible explanation regarding delay since the incident had come to the knowledge of the complainant on 4.4.2012 itself. In such circumstances, the complainant cannot take a plea that the delay in instituting the prosecution report should be condoned as the sanction for prosecution was given after the expiry of the period of limitation prescribed under section 106 of the Factories Act. Apart from what has been stated above, another noticeable factor would be that even though the prosecution report was submitted on 22.08.2012 and cognizance was taken by the learned Chief Judicial Magistrate, Bokaro on 22.08.2012 but the same apparently seems to bear non application of judicial mind as neither the said order indicates that the delay has been condoned prior to taking cognizance nor the provisions of section 106 of the Factories Act have been appreciated prior to taking such cognizance. In such circumstances, when the prosecution report itself has been submitted beyond the prescribed period of limitation in terms of section 106 of the Factories Act, the order taking cognizance dated 22.08.2012 having not considered that the application itself was time barred, the petitioners cannot be prosecuted. 10. In such circumstances, there being merit in this application, I allow the same and quash the entire criminal proceedings in connection with F.A. No. 01 of 2012 including the order dated 22.08.2012 passed by the learned C.J.M., Bokaro, by which cognizance has been taken under section 92 of the Factories Act.