Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1979 (ALL)

Aijaz Gaffar v. State of U. P.

2019-08-19

SAURABH SHYAM SHAMSHERY

body2019
ORDER : 1. Applicant, Manager of a factory of M/s Calcom Vision Ltd, which is situated at Surajpur Industrial Area, Greater Noida has approached this Court by way of filing present application under Section 482 Cr.P.C. for quashing the proceedings of Complaint Case No. 1942 of 2005 (State vs. Aijaz Gaffar) filed under Section 92 of the Factories Act, 1948, Police Station Surajpur, District Gautam Budh Nagar, pending before learned Chief Judicial Magistrate, Gautam Budh Nagar, U.P. 2. One Smt. Geeta Yadav Wife of Late Vijay Yadav lodged a FIR dated 11.03.2005 (Case Crime No. 32/2005), under Section 304A IPC that her husband who was working as Engineer with M/s Calcom Vision Ltd. died on 09.03.2005 within the premises of the factory, due to negligence of factory management as roof of the factory which was made of cement fell down when deceased went to repair the roof. 3. On 09.03.2005, inspection of the factory was conducted under Rule 123 of the U.P. factories Rules 1950, wherein multiple defaults were noted under various provisions of Factories Act, 1948 (hereinafter referred as to ‘the Act of 1948’) and Uttar Pradesh Factories Rules, 1950 (hereinafter referred as to ‘the Rules of 1950’). Accordingly, Inspection Report was prepared, shortcomings were noted under Rule 123, Section 31 Rule 56, Section 29 Rule 55A, Section 7A, Section 58 Rule 110, Rule 14D, Rule 107 (2) Rule 303 (3), Rule 52A etc. of the Act of 1948 and the Rules of 1950. 4. Additional Director, Factories UP, NOIDA Region, NOIDA filed complaint under Section 92 of the Act of 1948 against the petitioner for committing violation of Sections 31, 29 of the Act of 1948 read with Rules 56, 55A and 107 (2) of the Rules of 1950, before learned Chief Judicial Magistrate, Gautam Budh Nagar. 5. The Chief Judicial Magistrate, Gautam Budh Nagar took cognizance of the complaint (Complaint No. 1948/2005) on 24.05.2005 and issued summons to the applicant. As the complainant and witnesses were public servant and complaint was made under act in the discharge of their official duties, complainant and witnesses were not examined. 6. Applicant has challenged the entire proceedings arising out of Complaint Case No. 1943/2005 before the Court by way of filing present application under Section 482 Cr.P.C. 7. As the complainant and witnesses were public servant and complaint was made under act in the discharge of their official duties, complainant and witnesses were not examined. 6. Applicant has challenged the entire proceedings arising out of Complaint Case No. 1943/2005 before the Court by way of filing present application under Section 482 Cr.P.C. 7. This Court has passed the following order on 13.07.2006: “Heard learned counsel for the applicant and learned A.G.A. It is contended by the learned counsel for the applicants that on the same allegations which have been made in the complaint an F.I.R. has been lodged against the Managing Director. Issue notice to opposite party no. 2 returnable within a period of four weeks. In view of the facts and circumstances of the case and submissions made by the learned counsel for the applicants and learned A.G.A. the further proceedings in Criminal Complaint Case No. 1942 of 2005 pending in the court of learned C.J.M. Gautam Buddh Nagar shall remain stayed till the next date of listing. List after 4 weeks for orders.” 8. A counter affidavit has been filed on behalf of respondent No. 2 (Assistant Director factories U.P.) denying averments made in the application as well as submitted that certain violation of statutory norms were found during inspection of the factory. 9. Shri Ravi Kumar Pandey, learned counsel appearing on behalf of appellant submitted that since an FIR has been lodged against the applicant, therefore, no complaint under the Factories Act would be maintainable and further documents have been filed along with present application to show that factory had “Safety and Health Policy” and inspection was done at the back of the management of the factory. 10. Per contra, Shri M.P. Singh Gaur, learned A.G.A. for the State submitted that complaint was filed after several irregularities were noticed during inspection. He further submitted that learned trial court has rightly taken cognizance and summoned the applicant. 11. Heard learned counsel for the parties and perused the material available on record. 12. Law is well settled regarding the summoning order passed under Section 204 Cr.P.C. which is reiterated in a latest judgment passed by Hon’ble Supreme Court in the matter of State of Gujarat vs. Afroz Mohammad (Crl. Appeal No. 224/2019) dated 05.02.2019 reported at 2019 SCC Online SC 132 that: “24. 12. Law is well settled regarding the summoning order passed under Section 204 Cr.P.C. which is reiterated in a latest judgment passed by Hon’ble Supreme Court in the matter of State of Gujarat vs. Afroz Mohammad (Crl. Appeal No. 224/2019) dated 05.02.2019 reported at 2019 SCC Online SC 132 that: “24. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C. the expression used is “there is sufficient ground for proceeding......” whereas for framing the charges, the expression used in Sections 240 and 246 IPC is “there is ground for presuming that the accused has committed an offence.....” At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C. detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.” (Emphasis supplied) 13. In view of above, there is no illegality in issuing summon against the applicant specially when the complaint has been filed by the public servant while discharging of his official duties and there are sufficient ground to proceed against the applicant in the case based on material available before the court below. It is also well settled that defence, if any, cannot be considered by the Court at this stage being falls under disputed questions of facts. 14. A coordinate Bench of this Court in a recent judgment in the matter of Imran and Others vs. State of U.P. and Another passed in Application u/s 482 No. 16700 of 2019, dated 10.7.2019 has dealt with the issue of filing complaint in Special Act and also lodging FIR in Indian Penal Code on the same occurrence, has held in Para 35 that: “35. After evaluating the submission advanced by the learned counsels for the respective parties in the light of discussion made above as well as under the conspectus of judicial pronouncements made in this regard by the various High Courts and the Apex Court, the issues involved in the present case are answered as follows: (i) If the act of accused makes out a cognizable offence under IPC as well as an offence under Section 21 of the MMDR Act 1957, the registration of FIR under both the enactments is not illegal, as there is no bar to investigate the matter by the police when the cognizable offence has taken place irrespective of penal provisions whether under the special enactment or general law. Since it is well settled that when there is a conflict between a special and general law, indisputably the special enactment will prevail over the general law, therefore on account of categorical bar under Section 22 of the Act 1957, the police officer cannot submit police report under Section 173 Cr.P.C. with regard to offence under Mines and Minerals (Development & Regulation) Act 1957. (ii) Despite provisions provided under section 22 of the Mines and Minerals (Development and Regulation) Act 1957, the police authorities can not be debarred from tacking action against the persons for committing theft of sand and minerals in the manner provided under the Code of Criminal Procedure. The ingredients to constitute offence under the Mines and Minerals (Development and Regulation) Act 1957 as well as offence under 378/379, etc. of Indian Penal Code are different, therefore doctrine of double jeopardy is not attracted. Hence the accused can be prosecuted simultaneously for one set of offence under two or more Acts. (iii) On account of specific prohibition/bar, as contained in section 22 of the Mines and Minerals (Development and Regulation) Act 1957, accused cannot be prosecuted on the basis of police report under section 173 Cr.P.C. And can be prosecuted only on complaint made by the officer concerned in case of contravention of section 4 of the Mines and Minerals (Development and Regulation) Act 1957, but prosecution of accused on the basis of police report under section 173 Cr.P.C. for the offence under Indian Penal Code is not barred by Section 22 of the Mines and Minerals (Development and Regulation) Act 1957. (iv) As per the provisions contained in section 22 of the Mines and Minerals (Development and Regulation) Act 1957, The Magistrate can not take cognizance for the offence under the Mines and Minerals (Development and Regulation) Act 1957 on the police report/ charge-sheet under Section 173 of The Criminal Procedure Code, but can taken cognizance for the offence under Indian Penal Code, if any on the basis of same police report without awaiting the receipt of complaint that can be filed by the officer concerned for taking cognizance regarding contravention of provisions of the Mines and Minerals (Development and Regulation) Act 1957.” (Emphasis supplied) 15. In view of above, this application is also liable to be dismissed as “FIR is also lodged against the incident against the petitioner” is no ground for quashing of summoning order. The FIR is lodged under Section 304A IPC which states that “causing death by negligence” by the wife of deceased employee and the complaint has been filed against the applicant under Factories Act for not observing requisite safety measures at the factory. There is no illegality in summoning order, therefore, the application fails being sans merit. 16. Accordingly, the application u/s 482 Cr.P.C. is dismissed. 17. Interim order stands vacated.