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2020 DIGILAW 236 (KAR)

Niteen Pradhan v. State Of Karnataka

2020-01-27

B.A.PATIL

body2020
JUDGMENT 1. The learned HCGP is directed to take notice for the respondent-State. Heard the Senior Counsel Sri Udaya Holla for petitioner and HCGP for respondent State. 2. Petitioner No.1 was an occupier and petitioner No.2 was the Manager of the Factory. Respondent conducted inspection of factory of PepsiCo India Holdings Private Limited situated in Nelamangala on 16.3.2017 and found that the petitioner-Company has violated the provisions of Sections 65(3)(i), 65(3)(ii), 65(3)(iii) and 65(3)(iv) of the Factories Act (Act for short) and subsequently a complaint was filed and registered on 3.7.2017. 3. The main contention which has been taken up by the learned Senior Counsel is that the complaint and consequent proceedings are untenable and bad in the eye of law. The complaint has been recorded on 16.3.2017 as per Annexure-A and subsequently the said complaint has been registered on 3.7.2017. It is his further submission that as per the Act, the complaint has to be registered within three months from the date on which the alleged commission of the offence came to the knowledge of the respondent. In order to substantiate the said contention, he has relied upon the decision of the Honble Apex Court in the case of J.J. Irani and another v. State of Jharkhand, reported in (2014)15 SCC 813 . It is his further submission that as per Section 106 of the Act, the Court shall not take cognizance of any offence punishable under the said Act unless the complaint is made within three months from the date on which the alleged commission of offence came to the knowledge of the Inspector-respondent. On these grounds, he prayed to allow the petition and to quash the proceedings. 4. Per contra, the learned HCGP has seriously contended that though the complaint has been recorded on 16.3.2017, because of the administrative reasons and other constrains to get the approval, the complaint has been filed and registered on 3.7.2017, hence there is no infirmity in the registration of the case. On these grounds, he prayed to dismiss the petition. 5. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records. 6. On these grounds, he prayed to dismiss the petition. 5. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records. 6. The only point which has been raised by the learned Senior Counsel is that as per Section 106 of the Act, it contemplates that no Court shall take cognizance of any offence punishable under the said 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 the Inspector-respondent. For the purpose of brevity, I quote Section 106 of the Act, which reads as under:- '106. Limitation of prosecution.- 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.' 7. Similar issue came up before the Honble Apex Court for interpretation in the case of J.J.Irani and another v. State of Jharkhand (cited supra), wherein at paragraphs-14, 15, and 19, it has been observed as under:- '14. We have heard the matter and considered the issue at length and we find ourselves unable to uphold the reasoning of the High Court. Jambekar case [ P.D. Jambekar v. State of Gujarat, (1973) 3 SCC 524 : 1973 SCC (Cri) 1088 : 1973 SCC (L&S) 162 ] is of no assistance in deciding the present case. In that case this Court accepted that from a reading of the report of the incident it was difficult for anyone to come to the conclusion that an offence under Section 21(1)(iv)(c) has been committed. In that case this Court accepted that from a reading of the report of the incident it was difficult for anyone to come to the conclusion that an offence under Section 21(1)(iv)(c) has been committed. The Inspector's statement that the report did not convey to him any knowledge that the offence was committed was accepted and this Court concluded that the Inspector did not acquire the knowledge of the 'commission of the offence' when he received the report. The case before us is entirely different. Here the Inspector was himself a part of the team, which conducted the preliminary inquiry between 5-3-1989 and 6-3-1989. As observed earlier, the inquiry is a detailed investigation going into all aspects of the occurrence. In these circumstances it is not possible to hold that the Inspector of Factories, who undertook a detailed inquiry into the accident along with the Chief Inspector of Factories, remained ignorant that the offences in question have been allegedly committed. It is proper to assume that an officer, conducting an investigation, comes to know what has happened, that being the only purpose of the investigation. 15. We find that it has not been disputed at any stage that the complainant was not associated with and did not participate in the preliminary investigation from 5-3-1989 to 6-3-1989 along with the Chief Inspector of Factories. This is obvious from the letter/report of preliminary investigation dated 8-3-1989. The Inspector must be taken as having acquired knowledge of the alleged commission of the offence soon before or at least on 8-3-1989, when the report of preliminary investigation was sent to the Commissioner of Labour, Bihar. In fact, a perusal of allegations of the offence against the appellants, makes it clear that an inquiry or investigation at the site of the accident was not necessary in order to gain knowledge of the alleged breach. For instance, the failure to submit 'plans of pandals and structures' as required under Section 6(1)(aa) of the Act read with Rule 8 of the Bihar Factory Rules, 1950; not drawing up an 'on-sight' emergency plan and disaster control for pandals and structures as required under Section 41-B(4) of the Factories (Amendment) Act, 1987 are alleged breaches, which could have been ascertained even from the office record of the Inspector. The third breach is not taking precautions in case of fire as envisaged under Section 38 of the Factories Act, 1948 read with Rule 62 of the Bihar Factories Rules, 1950 or providing a safe means of escape in the event of fire for all persons, and providing necessary equipment and facilities for extinguishing fire, can be easily and must have been ascertained at the first inspection of the site. We are clearly of the view that it was not necessary for the Inspector to have waited to receive the report on 23-4-1990 from the Government under cover of the letter dated 21-4-1990 directing him to file a complaint for the prosecution of the appellants. We thus agree with the view of the learned Chief Judicial Magistrate, Jamshedpur and disagree with the view of the High Court. 19. In the result, the appeals are allowed. The judgment and order of the High Court dated 15-6-2007 [State of Bihar v. J.J. Irani, Criminal Revision No. 212 of 1990, decided on 15-6-2007 (Jhar)] is set aside and the criminal complaints are dismissed. 8. On going through the aforesaid provision of law, it makes clear that the complaint has to be filed within three months of the date on which the alleged commission of offence came to the knowledge of the respondent. In the instant case, as per the records the commission of the offence come to the knowledge of the respondent on 16.3.3017 and the complaint was filed and subsequently got registered before the learned Magistrate on 3.7.2017, i.e., beyond the period of limitation. Even in the complaint filed before the learned Magistrate, no explanation has been called for in respect of the delay in filing and registering the complaint and the complaint itself is filed after the period of limitation. Under such circumstances, it is nothing but an abuse of process of law. Hence, the petitioners have made out a case to allow the present petition. Accordingly, the petition is allowed. Proceedings in CC.No.1860/2017, pending on the file of the Principal Civil Judge and JMFC., Nelamangala, are hereby quashed. Consequently, I.A.Nos.1/2010 and 2/2020 are disposed of as they do not survive for consideration.