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2019 DIGILAW 1001 (JHR)

Vijay Sharma v. State of Jharkhand

2019-05-08

RAJESH SHANKAR

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ORDER : The present petition has been filed for quashing the entire criminal proceeding including the order dated 15.03.2012 passed by the Judicial Magistrate, 1st Class, Seraikella in connection with G.O No. 89 of 2012, whereby cognizance of the offence under Section 92 of the Factories Act, 1948 has been taken against the petitioners. 2. The present complaint has been lodged by the opposite party no. 2 stating that a workman namely, Kripa Sandhu Bera died in a fatal accident due to the violation of Rule 3(a) and 55-A(1) of the Jharkhand Factories Rules, 1950 and as such the petitioners are liable for punishment under Section 92 of the Factories Act, 1948. 3. At the outset, the learned counsel for the petitioners submits that the court below failed to appreciate the fact that the complaint was filed beyond the statutory period of limitation of three months and as such, the cognizance of the alleged offences could not have been taken against the petitioners and on this ground alone, the prosecution initiated against the petitioners is liable to be quashed. 4. No counter affidavit has been filed on behalf of the opposite party no. 2 despite opportunities granted to him. 5. The learned counsel for the petitioners puts reliance on the judgments passed by different Benches of this Court. I have perused all those judgments. 6. In the case of “T. Mukherjee & Anr. Vs. State of Jharkhand & Anr.” [W.P.(Cr.) No. 165 of 2004], it has been held as under: “6. From bare perusal of Section 105 of the Factories Act, as quoted above, it is absolutely clear that the law provides that the complaint with regard to the commission of offence under the Act has to be made within a period of three months from the date of commission of offence or from the date of knowledge of the commission of the said offence. There is no dispute of the fact in the present case that the date of alleged occurrence was 03.09.2003 whereas the complaint was filed much beyond the period of limitation i.e on 19.03.2004, therefore, apparently the impugned order taking cognizance was barred by limitation. 7. There is no dispute of the fact in the present case that the date of alleged occurrence was 03.09.2003 whereas the complaint was filed much beyond the period of limitation i.e on 19.03.2004, therefore, apparently the impugned order taking cognizance was barred by limitation. 7. Accordingly, I hold that the order taking cognizance dated 19.03.2004 under Section 92 of the Factories Act against the petitioner was beyond the jurisdiction of the learned court below because the same was barred by the law of Limitation prescribed under Section 106 of the Factories Act.” 7. The other judgments relied upon by the learned counsel for the petitioners have reiterated the same position of law. The Factories Act is a special Act and Section 106 provides specific period of limitation within which a complaint can be filed. Section 106 of the Factories Act 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. 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. In the present case, it appears from the record that the petitioner no. 1 is the occupier and petitioner no. 2 is the manager of Usha Martin Ltd. The accident in the said factory took place on 31.10.2011 and the required information was sent by the occupier of the factory on 01.11.2011 under Form-17 to the Inspector of Factories (the opposite party no. 2) which was served upon him on 03.11.2011. In pursuance of the said information, the Inspector of Factories visited the factory premises on 05.11.2011, however, the complaint has been filed by the opposite party no. 2) which was served upon him on 03.11.2011. In pursuance of the said information, the Inspector of Factories visited the factory premises on 05.11.2011, however, the complaint has been filed by the opposite party no. 2 as late as on 13.03.2012 i.e., beyond the period of limitation of three months as mandated under Section 106 of the Factories Act, 1948. Even if 03.11.2011 is said to be the date of knowledge of the said accident to the opposite party no. 2 as admitted in the complaint itself, the period of three months as prescribed in the aforesaid provision had ended on 02.02.2012. The Factories Act, 1948 and the rules framed there under being the special law do not provide for condonation of delay in filing the complaint. 9. In view of the aforesaid factual and legal position, I find substance in the argument of the learned counsel for the petitioners that the prosecution against them was launched contrary to the provisions of law and the court below has wrongly taken cognizance in the matter. 10. Under the aforesaid facts and circumstance, entire criminal proceeding including the order dated 15.03.2012 is hereby quashed. 11. The present Cr.M.P. is accordingly allowed.