Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 333 (JHR)

Dhirendra Kumar v. State of Jharkhand

2022-03-23

NAVNEET KUMAR

body2022
JUDGMENT : 1. The case was heard through video conferencing. None of the parties found any flaws with audibility/visibility during the course of hearing the matter. 2. This Cr.M.P. is directed against the order taking cognizance dated 27.10.2011 for the offence punishable under Section 92 of the Factories (Amendment) Act, 1987 pending in the concerned court of Sri S.K. Dubey, learned Judicial Magistrate, Dhanbad or his successor. 3. Heard Mr. Anoop Kumar Mehta, the learned Sr. Counsel appearing on behalf of the petitioners and learned APP Mr. Ravi Prakash appearing on behalf of the State. 4. It has been submitted on behalf of the petitioners that the allegation has been made by the opposite parties against the petitioners that on 5.08.2011, an accident took place within the factory premises at Unit No. 13, when the left hand of Sri Murari Singh, Mechanical fitter was caught in between the running tandem drum and conveyor belt causing serious injury to the left hand and middle finger of the right hand and thereafter an enquiry was conducted and finally an enquiry report dated 06.09.2011 was issued to all the concerned vide memo No.119 dated 07.09.2011 and the said enquiry report revealed that the position of tandem drum of conveyor belt No.13 was such that it was unsafe for the worker/workers, working on or near Unit No.13, the drum was not guarded or fenced since long and the factory management was allowing the drum to run in an unsafe condition, i.e. without providing and maintaining a suitable safeguard or fenced over this drum, as a result of which, the accident took place. It has also been stated in the said enquiry report that the accident could have been averted, had the tender drum been securely fenced by safeguard and had it been constantly maintained and kept in a position while it is in motion or in use and the management could also have averted by preparing a safe work procedure for alignment of the conveyor belt by making it known to the concede worker by imparting special training. 5. It has further been pointed out on behalf of the petitioners that on the basis of the complaint dated 27.10.2011; the concerned court below took the cognizance in a mechanical manner under Section 92 of the Factories (Amendment) Act, 1987 against three accused persons including these two petitioners. 5. It has further been pointed out on behalf of the petitioners that on the basis of the complaint dated 27.10.2011; the concerned court below took the cognizance in a mechanical manner under Section 92 of the Factories (Amendment) Act, 1987 against three accused persons including these two petitioners. It has been contended on behalf of the petitioners that the learned court below has totally ignored the definition of ‘Occupier’ of the factory in order to invoke the offence against these two petitioners as defined under Section 2(n) of the Factories Act. 6. On the other hand, learned counsel APP appearing on behalf of the State opposed the contentions raised on behalf of the learned counsel for the petitioners. 7. Having heard learned counsel for the parties, perused the materials available on the record. 8. In order to appreciate as to whether prima-facie case made out against the petitioners for the offence punishable under section 92 of the Factories (Amendment) Act, 1987, it is necessary to go through the contents of section 92 and section 2(n) of the Factories (Amendment) Act, 1987 which run as under : Section 2(n) of the Factories Act says ‘Occupier’ of the factory means the person who has ultimate control over the affairs of the factory provided that:- (i) In the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier. (ii) In the case of a company any one of the Directors shall be deemed to be the Occupier. (iii) In the case of a factory owned or controlled by the Central Government or any State Government or any local authority the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier. Section 92 of the Factories (Amendment) Act, 1987 defines the General Penalty for the Offences which run as under: 92. Section 92 of the Factories (Amendment) Act, 1987 defines the General Penalty for the Offences which run as under: 92. General penalty for offences.- Save as is otherwise expressly provided in this Act and subject to the provisions of section 93 , if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to [two years] or with fine which may extend to [one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to [one thousand rupees] for each day on which the contravention is so continued: [Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than [twenty-five thousand rupees] in the case of an accident causing death, and [five thousand rupees] in the case of an accident causing serious bodily injury. Explanation.-- In this section and in section 94 "serious bodily injury" means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot. 9. In the present case it is found admittedly that petitioner No.1 Dhiredar Kumar was the Chief General Manager (WS), EWZ/WCD, Sudamdih, Dhanbad and as evident from the complaint itself instituted before the learned court below that the said petitioner No.1 is not the Occupier or Manager for the purpose of the offence punishable under Section 92 of Factories (Amendment) Act, 1987 inasmuch as the said petitioner No.1 Dhiredar Kumar is Chief General Manager and not the Factory Manager and occupier within the meaning of section 92 of the Factories (Amendment) Act, 1987 and hence he is not liable to be prosecuted for the alleged offence. The complainant has sweepingly arrayed him as one of the accused without appreciating the definition of manager and occupier within the meaning of Section 92 the Factories (Amendment) Act, 1987 and thereafter the learned court below without applying the judicial mind took the cognizance vide impugned order dated 27.10.2011 against the petitioner No.1 Dhiredar Kumar who was the Chief General Manager (WS), EWZ/WCD, Sudamdih, Dhanbad in a mechanical manner without appreciating the provisions of either section 2 (n) or section 92 of the Factories Act, 1948 as no case is made out against petitioner No.1. Dhirendra Kumar. 10. So far as petitioner No.2 Chandeshwar Prasad Sinha is concerned, he is admittedly the occupier cum factory manager of the Sudamdih Coal Washery, Dhanbad and thus he is the person who is liable to be prosecuted within the meaning of Section 92 of Factories (Amendment) Act, 1987 and therefore the defence raised on behalf of the petitioner No.2 is not tenable in the eyes of law and his prayer for quashing the order taking cognizance against him does not get the support as per the provision of law vis-a-vis facts of the case. 11. It is manifest that in absence of the petitioner No.1 Dhirendar Kumar being either the Occupier or the Manager of the factory within the meaning of Section 2(n) of the Factories Act and admittedly the Manager of the factory was petitioner No.2 Chandeshwar Prasad Sinha and as such, the petitioner No.1 Dhirendar Kumar does not fulfill the requirement of an occupier as provided in Section 2(n) of the Factories Act and therefore the prosecution is liable to be quashed with respect to the petitioner No.1 and to continue with respect to the petitioner no.2. 12. Learned counsel for the petitioners further contended as regard to petitioner No.2, who was the Manager, but he was on leave on that date of occurrence, i.e. on 05.08.2011 and therefore he is also not liable to face the prosecution and thus it has been submitted that both the petitioners have been wrongly made accused in the case by the opposite party No.2 and no case under Section 92 of Factories (Amendment) Act, 1987 made out against the petitioners. This court does not find force in the contentions raised on behalf of the petitioner no.2 about his leave on the date of reporting prosecution case inasmuch as nature of allegations in the premises of the factory which have been committed since long and not of a particular date in a continuing process. 13. In the backdrop, the entire criminal proceeding against the petitioner No.1 Dhirendar Kumar is quashed and this Cr.M.P. is allowed with respect to petitioner No.1 only and it is dismissed with respect to petitioner No.2 Chandeshwar Prasad Sinha and the prayer of the petitioner No.2 is rejected. The I.A. No.928 of 2022 also stands disposed of accordingly. 14. It goes without saying that the petitioner No.2 shall have an opportunity to defend himself during the course of trial of this case without being prejudiced to the order of this court because this court did not go into the merit of the allegations at all against the petitioner no. 2. Since the case is pending for a long time, learned court below is directed to conclude the trial within three months from the date of receipt of this order. 15. Let this order be communicated to the court below concerned by FAX/Email.