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2020 DIGILAW 414 (MAD)

Sumathi v. State

2020-02-26

G.R.SWAMINATHAN

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ORDER : G.R. Swaminathan, J. 1. This criminal original petition has been filed to quash the proceedings in S.C. No. 313 of 2015 on the file of the 4th Additional District Judge, Madurai. The petitioner is facing trial for the offences under Sections 286, 337, 338, 304 (A) IPC and Section 9(B) (1)(a) of the Explosives Act, 1884. She is the sole accused. On 24.09.2013 at about 05.10 P.M, the second respondent who is the Village Administrative Officer, Kinnimangalam Village, Thirumangalam Taluk heard a loud explosion. He came to know that a major accident had occurred in the factory premises of Anandham Fire Works. Two persons had died and 20 others had suffered grievous injuries. The defacto complainant was informed that due to non adherence to the safety standards and mishandling of fireworks, the occurrence had taken place. He lodged information before the Inspector of Police, Chekkanoorani Police Station. Crime No. 375 of 2013 was registered. The matter was investigated and final report was filed before the Judicial Magistrate No. 2, Usilampatti. Cognizance of the offences was taken and the case was committed to the Sessions Court. It was taken on file in S.C. No. 313 of 2015 and made over to the 4th Additional District Judge, Madurai. To quash the same, this criminal original petition has been filed. 2. The case was taken up for admission on 16.06.2016 and interim stay was granted by this Court. The interim order reads as follows: "The Criminal Original Petition has been filed to quash the proceedings in S.C. No. 313 of 2015. 2. The learned counsel for the petitioner submitted that it is a case of double jeopardy and already the accused has been prosecuted by the Inspector of Labour and punished in STC Nos. 83 and 84 of 2014 and a copy of the Judgment dated 16.04.2014 is produced before this Court. 3. Taking note of double prosecution in similar set of circumstances, this Court in Crl.O.P. No. 3749 of 2007, has held that subsequent prosecution is not maintainable and the Criminal Original Petition is liable to be allowed. This Judgment has been followed by the High Court of Madhya Pradesh and in support of the same, the Judgment of the High Court of Madhya Pradesh in M.Cr.C. No. 3222 of 2015 has also been produced. 4. Mr. A.P. Balasubramani, learned Government Advocate (Crl.side) has taken notice for the respondents. 5. This Judgment has been followed by the High Court of Madhya Pradesh and in support of the same, the Judgment of the High Court of Madhya Pradesh in M.Cr.C. No. 3222 of 2015 has also been produced. 4. Mr. A.P. Balasubramani, learned Government Advocate (Crl.side) has taken notice for the respondents. 5. Stay of further proceedings in S.C. No. 313 of 2015 until further orders. Personal appearance of the petitioner is dispensed with until further orders." 3. When the matter was taken up for final disposal, the learned counsel appearing for the petitioner reiterated all the contentions which led to the grant of interim stay. He also pointed out that the same ratio has been laid down in the decision reported in 2012 (2) MWN (Cr.) 335 (Manoharan vs. State of Tamil Nadu). The relevant portion of the judgment reads as under: "9. At this juncture, it is appropriate to consider the decision in Ashwini Kumkar Singh and another Vs. State of Jharkhand, 2007 LLR 866, wherein, in Paragraph No. 7, it has been held as follows: "Para 7: The law is settled in the various decisions that the special law shall prevail over the general law but both shall not run concurrently for the same cause of action. I find that when the complaint case has been instituted vide C/2 No. 5211/05 under Special law (Factories Act, 1948), the continuation of the criminal prosecution against the petitioners for the offence prescribed in the general law of Indian Penal Code is unsustainable. In both the statutes viz., under Section 304 (A), Indian Penal Code (general law) and under Section 92 of the Factories Act, 1948 the sentence prescribed to the convict is similar but with additional fine to the extent of Rupees One Lakh in the Special Act to the Occupier and in this manner the extent of find is more severe in special law and both cannot proceed at a time. The criminal prosecution of the petitioners, therefore, under Indian Penal Code is unsustainable. 10. Considering the above said decision, two proceedings will not be sustainable for the same cause of action/same incident. The criminal prosecution of the petitioners, therefore, under Indian Penal Code is unsustainable. 10. Considering the above said decision, two proceedings will not be sustainable for the same cause of action/same incident. In the present case, since to 15 to 2009 filed under the Factories Act have been disposed of and the first petitioner herein and one Narasimha Rao were convicted and they paid the find amount, the continuation of the criminal proceedings against the petitioners for the offence prescribed in the general law of Indian Penal Code is unsustainable." 4. The learned counsel would further point out that Manoharan judgment had been followed by the another learned Judge of this Court vide order dated 23.10.2018 in Crl OP(MD) No. 4612 of 2014. After referring to Manoharan Judgment, the learned Judge held as follows: "8. The above said judgment is squarely applicable to the case on hand. The two proceedings will not be sustainable for the same cause of action/same occurrence. In the present case, under the Factories Act, the petitioner has found guilty and punished in S.T.C. Nos. 13 and 14 of 2012 by the Chief Judicial Magistrate and paid penalty. Therefore, the continuation of the criminal proceedings as against the petitioner for the offence prescribed in general law of Indian Penal Code is unsustainable." 5. The thrust of the argument of the petitioner's counsel is that when atleast three learned Judges of this Court over a period of 10 years have adopted a particular reasoning, this Court ought to follow the same and quash the impugned proceedings. 6. I am afraid that I will have to respectfully take a different stand. It is true that in respect of the occurrence in question, the petitioner was prosecuted by the Inspector of Factories, Madurai in STC No. 83 & 84 of 2014. The orders in both the cases would read as follows: "ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT MADURAI STC No. 83/2014 Inspector of Factories, Madurai. Complainant Vs. Sumathi Accused ORDER "Accused present. Admitting the offence guilty U/s. 7A and Sec 41 Rule 61F & Sec 41 Rule 61F of Factories Act fine of each Rs. 50,000/- in default 3 months each single imprisonment 50,000/= 1,50,000/-." ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT MADURAI STC No. 84/2014 Inspector of Factories, Madurai. Complainant Vs. Sumathi Accused ORDER "Accused present. Complainant Vs. Sumathi Accused ORDER "Accused present. Admitting the offence guilty U/s. 7A and Sec 41 Rule 61F & Sec 41 Rule 61F of Factories Act fine of each Rs. 50,000/- in default 3 months each single imprisonment 50,000/= 1,50,000/-." ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT MADURAI STC No. 84/2014 Inspector of Factories, Madurai. Complainant Vs. Sumathi Accused ORDER "Accused present. Admitting the offence guilty U/s. 41 Rule 61 D & Sec 38(3) rule 61(9)(f)(i)(s) Sec 87 rule 95 schedule XXIV item 3(f) of Factories Act fine of Rs. 50,000/- in default 3 months for single imprisonment Rs. 3000/- in default 1 week each, 50000+51000=1,01,000/-." 7. If I agree with the submission of the petitioner's counsel, I have to necessarily hold that since the petitioner had already been punished by the jurisdictional magistrate in the proceedings instituted under the Factories Act, the impugned prosecution is not maintainable. But, as rightly pointed out by the learned Government Counsel, the approach adopted in the various decisions relied on by the petitioner's counsel runs counter to the judgments of the Hon'ble Supreme Court of India. In fact, the issue was settled long ago in the decisions reported in AIR 1957 SC 592 (State of M.P vs. Veereshwar Rao Agnihotri), AIR 1958 SC 119 (Leo Roy Frey vs. Superintendent District Jail, Amritsar and another) and AIR 1961 SC 578 (The State of Bombay vs. S.L. Apte and ors). The Hon'ble Supreme Court referred to Section 26 of the General Clauses Act, which reads as follows: "7. The next argument on behalf of the appellant is that where there are two alternate charges in the same trial. The fact that the accused is acquitted of one of them, will not prevent the conviction on the other, is also well-founded. Section 26 of the General Clauses Act can be called in aid in support of this proposition. There is no question of double jeopardy. The fact that the accused is acquitted of one of them, will not prevent the conviction on the other, is also well-founded. Section 26 of the General Clauses Act can be called in aid in support of this proposition. There is no question of double jeopardy. Section 26 runs as follows:- "Provisions as to offences punishable under two or more enactments : Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same." We are, therefore, of the opinion that the learned Judge's view on this aspect of the case is also unsound." The learned counsel for the petitioner also brought to my notice an unreported decision of the Madhya Pradesh High Court in M.Cr.C. No. 3222 of 2015 dated 30.09.2015. 8. The question that has to be answered is whether the petitioner had previously been prosecuted and punished for the same offence for which they are now being prosecuted. If the answer is in the affirmative, the protection guaranteed under Article 20(2) of the Constitution will be attracted. Article 20(2) talks about "same offence". In Criminal Appeal No. 905 and 906 of 2010, the issue that arose for consideration of the Hon'ble Supreme Court was whether the Gauhati High Court justified in issuing directions that road traffic offences shall be dealt with only under the provisions of the Motor Vehicles Act, 1988 and holding that in cases of road traffic or motor vehicle offences, prosecution under the provisions of Indian Penal Code, 1860 is without sanction of law, and recourse to the provisions of the IPC would be unsustainable in law. The Hon'ble Supreme Court in the aforesaid judgment dated 04.10.2019 held as follows: "6. In our view there is no conflict between the provisions of the IPC and the MV Act. Both the statutes operate in entirely different spheres. The offences provided under both the statutes are separate and distinct from each other. The penal consequences provided under both the statutes are also independent and distinct from each other. The ingredients of offences under the both statutes, as discussed earlier, are different, and an offender can be tried and punished independently under both statutes. The offences provided under both the statutes are separate and distinct from each other. The penal consequences provided under both the statutes are also independent and distinct from each other. The ingredients of offences under the both statutes, as discussed earlier, are different, and an offender can be tried and punished independently under both statutes. The principle that the special law should prevail over the general law, has no application in cases of prosecution of offenders in road accidents under the IPC and M.V. Act. 7. It is pertinent to mention that there is no provision under the M.V. Act which separately deals with offences causing death, or grievous hurt, or hurt by a motor vehicle in cases of motor vehicle accidents. Chapter XIII of the M.V. Act is silent about the act of rash and negligent driving resulting in death, or hurt, or grievous hurt, to persons nor does it prescribe any separate punishment for the same; whereas Sections 279, 304 Part II, 304A,337 and 338 of the IPC have been specifically framed to deal with such offences. 8. Section 26 of the General Clauses Act, 1897 provides, "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." It is well settled that an act or an omission can constitute an offence under the IPC and at the same time, be an offence under any other law. The finding of the High Court that the prosecution of offenders under two statutes i.e. the M.V. Act and the IPC, is unsustainable and contrary to law, is therefore, set aside. A similar issue arose in the case of T.S. Baliah v. T.S. Rangachari, wherein the appellant was prosecuted both under Section 177 of the IPC, and Section 52 of the Income Tax Act, 1922. This Court held as follows: "6. We proceed to consider the next question arising in this case viz. whether the appellant can be prosecuted both under Section 177 of the Indian Penal Code and Section 52 of the 1922 Act [Income Tax Act, 1922] at the same time. This Court held as follows: "6. We proceed to consider the next question arising in this case viz. whether the appellant can be prosecuted both under Section 177 of the Indian Penal Code and Section 52 of the 1922 Act [Income Tax Act, 1922] at the same time. It was argued on behalf of the appellant that in view of the provisions of Section 26 of the General clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177 of the Indian Penal Code and not 9 (1969) 3 SCR 65 : AIR 1969 SC 701 : (1969) 72 ITR 787 under both the sections at the same time. We are unable to accept this argument as correct. Section 26 of the General clauses Act states: "26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case." [emphasis supplied] Similarly, in State of Maharashtra v. Sayyed Hassan, the accused was prosecuted under Sections 26 and 30 of the Food and Safety Standards Act, 2006 as well as Sections 188, 272, 273 and 328 of the IPC for transportation and sale of prohibited gutka/pan masala. The High Court held that Section 55 of the Food and Safety Standards Act, 2006 being a specific provision made in a special enactment, Section 188 of the IPC was inapplicable. The Supreme Court remanded the matter to the High Court, and held that: "8. The High Court held that Section 55 of the Food and Safety Standards Act, 2006 being a specific provision made in a special enactment, Section 188 of the IPC was inapplicable. The Supreme Court remanded the matter to the High Court, and held that: "8. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both 10 Criminal Appeal No. 1195-1207 of 2018, Decided on September 20, 2018 enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows: "Provisions as to offences punishable under two or more enactments -Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." 9. In Hat Singh's case this Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. While considering a dispute about the prosecution of the Respondent therein for offences under the Mines and Minerals (Development and Regulation) Act 1957 and Indian Penal Code, this Court in State (NCT of Delhi) v. Sanjay held that there is no bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offences. A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point." [emphasis supplied]. 9. A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point." [emphasis supplied]. 9. The legislative intent of the MV Act, and in particular Chapter XIII of the MV Act, was not to override or supersede the provisions of the IPC in so far as convictions of offenders in motor vehicle accidents are concerned. Offences under Chapter XIII of the MV Act, cannot abrogate the applicability of the provisions under Sections 297, 304, 304A, 337 and 338 of the IPC. The offences do not overlap, and therefore, the maxim of "generalia specialibus non-derogant" is inapplicable, and could not have been invoked. The offences prescribed under the IPC are independent of the offences prescribed under the M.V. Act. It cannot be said that prosecution of road traffic/motor vehicle offenders under the IPC would offend Section 5 of the IPC, as held by the High Court, in so far as punishment for offences under the M.V. Act is concerned. 10. Considering the matter from a different perspective, offences under Chapter XIII of the MV Act are compoundable in nature in view of Section 208(3)C of the MV Act, whereas offences under Section 279, 304 Part II and 304A IPC are not. If the IPC gives way to the MV Act, and the provisions of CrPC succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence committed. 11. This Court has time and again emphasised on the need to strictly punish offenders responsible for causing motor vehicle accidents. With rapidly increasing motorisation, India is facing an increasing burden of road traffic injuries and fatalities. The financial loss, emotional and social trauma caused to a family on losing a bread winner, or any other member of the family, or incapacitation of the victim cannot be quantified. 12. With rapidly increasing motorisation, India is facing an increasing burden of road traffic injuries and fatalities. The financial loss, emotional and social trauma caused to a family on losing a bread winner, or any other member of the family, or incapacitation of the victim cannot be quantified. 12. The principle of proportionality between the crime and punishment has to be borne in mind. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. The maximum imprisonment for a first time offence under Chapter XIII of the M.V. Act, is up to only six months; whereas the maximum imprisonment for a first time offence under the IPC in relation to road traffic offences can go upto 10 years under Section 304 Part II of the IPC. The sentence imposed by the courts should be commensurate with the seriousness of the offence, and should have a deterring effect on wrong doers. The punishment of offenders of motor vehicle accidents under the IPC is stricter and proportionate to the offence committed, as compared with the M.V. Act. 13. We thus hold that a prosecution, if otherwise maintainable, would lie both under the IPC and the MV Act, since both the statutes operate with full vigour, in their own independent Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608 12 State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) 3 SCC 738 spheres. Even assuming that some of the provisions of the MV Act and IPC are overlapping, it cannot be said that the offences under both the statutes are incompatible." 9. This recent ruling of the Hon'ble Supreme Court furnishes a complete answer to the contentions urged by the learned counsel appearing for the petitioner. 10. The learned counsel appearing for the petitioner drew my attention to a decision of the Hon'ble Supreme Court reported in (2011) 2 SCC 703 (Kolla Veera Raghav Rao vs. Gorantla Venkateshwara Rao). That was a case where the appellant who was also convicted under Section 138 of the Negotiable Instruments Act was sought to be prosecuted for the offence under Section 420 of IPC on the same facts. The Hon'ble Supreme Court after referring to Article 20(2) of the Constitution of India and Section 300(1) of Cr.PC, noted that there is a difference in language between the two provisions. The Hon'ble Supreme Court after referring to Article 20(2) of the Constitution of India and Section 300(1) of Cr.PC, noted that there is a difference in language between the two provisions. The Supreme Court held as follows: 5. Thus, it can be seen that Section 300(1) Cr.PC is wider than Article 20(2) of the Constitution. While Article 20(2) of the Constitution only states that "no person shall be prosecuted and punished for the same offence more than once", Section 300(1) Cr.PC states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. 6. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) Cr.PC applies. Consequently, the prosecution under Section 420 IPC was barred by Section 300(1) Cr.PC." Though this decision favours the stand taken by the learned counsel appearing for the petitioner herein, I must again express my inability to follow the same for two reasons. This decision is not in consonance with the other judgments of the Hon'ble Supreme Court including that of larger Benches. Secondly, while it refers to Section 300(1) of Cr.PC, it omits to take note of Section 300(6) of Cr.PC, which reads as follows: "300. Person once convicted or acquitted not to be tried for same offence: (1)............. (2)............... (3)................. (4)................... (5)............... (6) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code." 11. The learned Government Counsel brought to my notice a decision of the Hon'ble Division Bench of the Uttar Pradesh High Court reported in 1993 3 LLJ 581 (Y.P. Mehrotra vs. State of U.P). The facts in the said case in brief is this : An employee was found dead in the factory premises. Case was registered and final report was submitted under Section 304(A) IPC. Cognizance of the offence was taken and summons were issued. Petition was filed before the High Court for quashing the proceedings. They contended that there can be prosecution only under the provisions of the Factories Act and that there cannot be launching of criminal prosecution under any other law including the Indian Penal Code. Cognizance of the offence was taken and summons were issued. Petition was filed before the High Court for quashing the proceedings. They contended that there can be prosecution only under the provisions of the Factories Act and that there cannot be launching of criminal prosecution under any other law including the Indian Penal Code. After making an elaborate reference to the statutory provisions set out in the Factories Act and the Rules framed thereunder, the Hon'ble Division Bench of the Uttar Pradesh High Court held that an offence under Section 304(A) of IPC and an offence under the Factories Act operate in different fields. They flow in different channels. The writ petition was dismissed as devoid of substance. 12. This Court has to take judicial notice of the recurring accidents in factories of manufacturing crackers and fireworks. Unless penal responsibility is fastened on the persons in charge of the establishments, there will not be any deterrence and we will continue to be lax in the matter of adhering to safety norms. The petitioner herein cannot claim that having paid a fine amount of Rs. 2.50 lakhs, she must be exempted from facing the impugned criminal prosecution under the penal code. 13. For all the foregoing reasons, I am unable to agree with the contentions urged by the learned counsel for the petitioner. Therefore, this criminal original petition stands dismissed. I make it clear that I have not gone into the merits of the matter. All the other contentions and defences of the petitioner are left open. The petitioner is a woman. Therefore, her personal appearance before the court below is dispensed with. Of course, she has to appear on those occasions when her presence is directed by the learned Trial Judge.