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2023 DIGILAW 306 (JHR)

Hemant Goyal v. State of Jharkhand

2023-03-14

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : 1. In this petition the prayer has been made for quashing of the entire criminal proceedings including the order taking cognizance dated 18.01.2012 in connection with Chandil P.S. Case No.69 of 2008, G.R.No.274 of 2008 lodged under sections 285, 287 and 304(A) of the IPC pending in the court of learned SDJM, Saraikela. 2. The FIR was registered alleging therein that on 22.4.2008 around 12.00 p.m., the informant along with other labourers were working in the premises of the company i.e. Narsingh Ispat Private Limited. The diesel tanker which is established inside the premises of the company blasted due to unknown reason and due to which fire broke out in and around the tanker area, owing to which a labour who was working in the premises caught onto fire and was burnt whose name was Anadi Mahto. Since he was injured the others labour who were in the premises took him to MGM Hospital, where he was admitted and further treatment was provided to him, but he died during treatment at and around 2.00 p.m. 3. Mr. Nitin Pasari, the learned counsel appearing on behalf of the petitioners submits that charge sheet was submitted on 30.12.2011 under section 285, 287 and 304 (A) of the IPC on 18.01.2012. He further submits that the accident took place in the factory and for that the Factory Inspector has already lodged the complaint case before the competent court which is the subject matter in Cr.M.P.No.206 of 2013. He further submits that Factory Act is a complete Code in itself and the punishment is prescribed therein and for the same occurrence the FIR has been lodged against the petitioners which is against the mandate of law. He further submits that it is well settled that if a special legislation is there, the sections of IPC are not attracted. He further submits that the case has been compromised with the family of the deceased and he refers to Annexure-3 and submits that a sum of Rs.6 lacs was paid to the family of the deceased and two employment has also been provided to the family of the deceased. He relied in the case of Rabindra Agarwal v. The State of Jharkhand and Another, 2010(2) JLJR 36. Paragraph no. 8 of the said judgment is quoted hereunder: “I do find sufficient force in the submission. He relied in the case of Rabindra Agarwal v. The State of Jharkhand and Another, 2010(2) JLJR 36. Paragraph no. 8 of the said judgment is quoted hereunder: “I do find sufficient force in the submission. There has been no doubt that the allegation upon which FIR was lodged comes well within the ambit of the provision as enshrined under section 92 of the Factories Act and as such prosecution under the general law in view of section 4 of the Code of Criminal Procedure is not permissible and this proposition of law has already been laid down in the case of Binod Kumar Das and Another v. State of Jharkhand and Another.” 4. On these grounds, he submits that this proceeding is an abuse of process of law. 5. Mr. Azeemuddin, the learned counsel for the respondent State submits that there is no illegality in the order taking cognizance and the learned court has rightly taken cognizance looking into the charge sheet. 6. Mr. Alok Lal, the learned counsel appearing on behalf of the O.P.No.2 submits that the accident took place and in that view of the matter the FIR was lodged and the charge sheet has been submitted and pursuant thereto cognizance has been taken which is in accordance with law and there is no illegality. 7. In view of the above submission of the learned counsel for the parties the Court has gone through the materials on record including the order taking cognizance and finds that the order taking cognizance is bad in law as the blank spaces have been filled up by way of writing the sections and the name of the petitioners which prima facie suggest that there is non-application of judicial mind. Further reference may be made to Sharat Babu Digumarti v. Government (NCT of Delhi), (2017) 2 SCC 18 . Paragraph nos.31, 32 and 37 of the said judgment are quoted hereinbelow: “31. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Sections 67-A and 67-B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. The said provision read with Sections 67-A and 67-B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal and we concur with the same. 32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply. xxx xxx xxx 37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.” 8. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.” 8. In view of the above judgment of the Hon’ble Supreme Court considering that the accident occurred in the premises of factory and Factory Act is a complete Code itself and the sections of IPC are not attracted. Moreover, the order taking cognizance is not in accordance with law, the entire criminal proceedings including the order taking cognizance dated 18.01.2012 in connection with Chandil P.S.Case No.69 of 2008, G.R.No.274 of 2008 lodged under sections 285, 287 and 304(A) of the IPC pending in the court of learned SDJM, Saraikela is quashed. Cr.M.P.No.203 of 2013 stands disposed of. 9. Pending petition if any also stands disposed of.