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2023 DIGILAW 570 (JHR)

Shivji Singh @ Guddu Singh v. State of Jharkhand

2023-04-25

SANJAY KUMAR DWIVEDI

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JUDGMENT : Heard Mr. Ashutosh Ranjan Kumar, learned counsel appearing for the petitioner and Mr. Prabhu Dayal Agarwal, learned counsel for the State. 2. This petition has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 18.09.2012 in connection with Chowka P.S. Case No.31 of 2012, corresponding to G.R. No.469 of 2012, pending in the court of the learned Judicial Magistrate, 1st Class at Seraikella. 3. The FIR has been lodged on the basis of the written report of the Sub Inspector of Police, Chowka Police Station wherein it has been alleged that the deceased labour Nirmal Singh Sardar while working in the sponge iron of Sidhi Vinayak Metcom Ltd., sustained internal head injuries due to which he died whereupon an U.D. Case was instituted in Chowka Police Station. In course of investigation, it transpired that due to lack of proper safety measures, the accident had taken place resulting to death of the deceased labourers. 4. Learned counsel for the petitioner submits that the deceased Nirmal Sardar was not an employee of Sidhi Vinayak Metcom Ltd. and he was actually a contractor's labourer. He submits that the factum of the death of the deceased was reported to the Factory Inspector vide letter dated 09.04.2012. He submits that the Factory Inspector has not initiated any proceeding against the petitioner or the factory under the Factories Act, alleging any breach of the provisions of the Factories Act. He submits that the charge-sheet has been submitted against the petitioner and the learned court has taken cognizance under Section 287, 288 and 304A of the Indian Penal Code. He further submits that even if the entire allegation made in the FIR taken to be true, it falls within the ambit of the provisions as contained in Section 92 of the Factories Act, therefore, if any prosecution on account of negligence on the part of the management of the said factory lies, that lies under the Factories Act, which is a special legislation and as such provision of the said Act would prevail over the general law. He relied upon the judgment passed in Binod Kumar Das and another v. State of Jharkhand and another; [ 2008(1) JCR 601 (Jhr)] and submits that that FIR of a case under Section 304, which is covered by Section 92 of the Factories Act is liable to be quashed because Factories Act being special legislation shall prevail over the general law. He refers Section 4 Cr.P.C. and submits that where there is special legislation, the general provisions of the Indian Penal Code will not be applicable. On these grounds, he submits that entire criminal proceeding may kindly be quashed. 5. On the other hand, learned counsel for the State submits that the death has occurred in the factory and that is why the case has been registered and the learned court has rightly taken cognizance. 6. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record including the contents of the FIR and intimation to the Factory Inspector, contained in Annexure-2 of the petition and finds that admittedly the accident has occurred in the premises of the factory and death has occurred in the premises of the factory. The case was required to be filed under Factories Act, 1948. In this regard, a reference may be made to the judgment passed by the Hon'ble Supreme Court in Sharat Babu Digumarti v. Government (NCT of Delhi); [ (2017) 2 SCC 18 ]. Paragraphs 31, 32 and 37 of the said judgment are quoted herein below: “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. 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. 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.” 7. Identical was the situation in K.K.Sharan & Ors. v.State of Jharkhand & another; [2005 (2) East Cr C 407 (Jhr)]. Paragraph 6 of the said judgment is quoted herein below: “6. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.” 7. Identical was the situation in K.K.Sharan & Ors. v.State of Jharkhand & another; [2005 (2) East Cr C 407 (Jhr)]. Paragraph 6 of the said judgment is quoted herein below: “6. On a careful scrutiny on the facts and circumstances of the case and also the submissions of the parties and legal position in this regard, it appears that petitioners have already faced the trial and they have been acquitted of the charges levelled against them. Now they have also been chargesheeted under various sections of IPC and when there is a statutory provision for punishing the delinquent, the continuance of the case under other sections of IPC is not justified and not proper. The learned counsel for the petitioners have referred to various sections of the Act and Regulation to show that for the occurrence committed on their part, there is a provision for punishing the delinquent or so under various regulations and, therefore, the instant case should not be allowed to continue and it will amount to abuse of the process of Court. Further a man cannot be prosecuted twice or convicted twice for the. same occurrence or for the same cause of action and here petitioners have already faced criminal prosecution under various sections of Mines Act and Regulation and they have been acquitted of the charges levelled against them and further prosecution of the petitioners under these sections will be violative of the principle of natural justice.” 8. On perusal of the judgment passed in Sharat Babu Digumarti(supra), it transpires that on conclusion, it was held that the High Court has fallen in error that although charge has not been made out under the provisions of Information Technology Act, yet the appellant could be proceeded under Section 292 of the Indian Penal Code. There is no doubt that when a special legislation has been enacted having special provisions in a specific cause of action, the same would prevail over the general law. The FIR seems to be with respect to the death, which was caused in the factory premises, which would attract the penal provisions of Section 92 of the Factories Act. Section 119 of the Factories Act deals with the overriding effect of the provision of the Factories Act. 9. The FIR seems to be with respect to the death, which was caused in the factory premises, which would attract the penal provisions of Section 92 of the Factories Act. Section 119 of the Factories Act deals with the overriding effect of the provision of the Factories Act. 9. In view of the above facts and circumstances of the case, it can be concluded that the petitioners could not have been prosecuted under the Indian Penal Code moreso, in individual capacity as the offence which is said to have been committed is by a company of the petitioners who are Owner and Manager of the factory respectively. 10. Further, the Court has looked into the order taking cognizance and finds that the said order is not in accordance with law. The section and the word 'cognizance' has been put in blank space which suggests that there is non-application of judicial mind. 11. In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 18.09.2012 in connection with Chowka P.S. Case No.31 of 2012, corresponding to G.R. No.469 of 2012, pending in the court of the learned Judicial Magistrate, 1st Class at Seraikella is quashed. 12. Accordingly, this petition is allowed and disposed of. 13. Interim order, if any granted by this Court, stands vacated.