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2023 DIGILAW 952 (JHR)

Amarendu Prakash v. State of Jharkhand

2023-07-31

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding arising out of Complaint Case No. 05 of 2021 including the order taking cognizance dated 04.01.2021, passed by the learned Chief Judicial Magistrate, Bokaro, whereby and where under cognizance for the offences punishable under Section 92 of the Factories Act, 1948 has been taken and summons were issued, now pending in the Court of learned Chief Judicial Magistrate, Bokaro. 3. It is submitted by the learned counsel for the petitioners that the petitioners do not press the prayer on behalf of the petitioner no.3 –Sanjay Kumar and prays to withdraw the same with liberty to raise all the grounds taken in this criminal miscellaneous petition before the concerned court at the relevant time. 4. Accordingly, this criminal miscellaneous petition is dismissed as withdrawn, so far as the petitioner no.3 –Sanjay Kumar is concerned with liberty to raise all the grounds taken in this criminal miscellaneous petition before the appropriate court at the relevant time. 5. So far as the petitioner nos. 1 & 2 are concerned, it is submitted by the learned counsel for the petitioner nos. 1 & 2 that as per Section 92 of the Factories Act, 1948 which reads as under:- 92. 5. So far as the petitioner nos. 1 & 2 are concerned, it is submitted by the learned counsel for the petitioner nos. 1 & 2 that as per Section 92 of the Factories Act, 1948 which reads 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.] (Emphasis supplied) that only the occupier and the manager of the factory are liable for the offences committed under section 92 of the Factories Act, 1948, which is the penal section in the Factories Act, 1948. It is next submitted by the learned counsel for the petitioner nos. It is next submitted by the learned counsel for the petitioner nos. 1 & 2 that the petitioner no.1 who was admittedly the Director In charge of the Bokaro Steel Plant and the petitioner no.2 who was the Executive Director of the Bokaro Steel Plant, Steel Authority of India were neither the occupier nor the manager, hence are not liable to be prosecuted for the offences punishable under Section 92 of the Factories Act, 1948. It is next submitted by the learned counsel for the petitioner nos. 1 & 2, drawing attention of this Court to page no.32 of the brief which is the enquiry report submitted by the complainant himself, that he has stated therein that the occupier is one Atanu Bhowmick, Executive Director (Works). It is next submitted by the learned counsel for the petitioner nos. 1 & 2 that under Section 2(n)(iii) of the Factories Act, 1948 which reads as under:- 2(n) “occupier” of a factory means the person who has ultimate control over the affairs of the factory : [Provided that— (i) xxxxx (ii) xxxxx; (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 : ] (emphasis supplied) In case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be occupier. Drawing attention of this Court to page no. 48 of the brief, which is the notification bearing S.O. 2477 (E) dated 28th July, 2020 by the Ministry of Steel, Government of India, it is submitted that therein it has been specifically mentioned that the said Atanu Bhowmick is the occupier of the factory. Hence, it is submitted that the continuation of the prosecution against the petitioner nos. 1 & 2 amounts to abuse of process of law and the petitioner nos. 1 & 2 have been implicated in this case only for wrecking vengeance. Drawing attention of this Court to page no. 33, para -4 of the brief, it is submitted by the learned counsel for the petitioner nos. 1 & 2 amounts to abuse of process of law and the petitioner nos. 1 & 2 have been implicated in this case only for wrecking vengeance. Drawing attention of this Court to page no. 33, para -4 of the brief, it is submitted by the learned counsel for the petitioner nos. 1 & 2 that in the said enquiry report, the complainant himself has stated that on 07.10.2020 which is the next date of the alleged occurrence which took place on 06.10.2020, from the verification of the record, the complainant could know that the said Atanu Bhowmick is the occupier of the plant. 6. It is submitted by the learned counsel for the petitioner nos. 1 & 2, that cognizance has been taken by the learned Chief Judicial Magistrate only under Section 92 of the Factories Act, 1948 which envisages general penalty for offences; without mentioning the concerned Section or Rule the actual violation of which has been made by either of the petitioners but drawing attention of this Court to page no. 30 of the brief, it is submitted that the complaint has been lodged for general penalties under Section 92 of the Act for violation of Section 7A (2)(b), 2(c) and 2(d) read with Rule 55A (2) of the Bihar Factories Rule, 1950 which reads as under:- [7-A. General duties of the occupier.—(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory. (2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include— (a) xxxxx; (b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work; (d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks; (emphasis supplied) And also for violation of Section 6 of the Factories Act read with Rule 8 of the Bihar Factories Rule, 1950. 7. 7. So far as the violation of Section 7A of the Factories Act, 1948 is concerned, it is submitted by the learned counsel for the petitioner nos. 1 & 2 that the same deals with the general duty of the occupier and since neither the petitioner no.1 nor the petitioner no.2 is the occupier, hence no violation of Section 7A of the Factories Act, 1948 has been committed by either of the petitioner no.1 or the petitioner no.2 and so far as the Section 6 of the Factories Act, 1948 is concerned, it is submitted that there is no allegation of violation of any requirement of the said Rules but so far as Rule 8 of the Bihar Factories Rules, 1950 which reads as under is concerned:- R.8. Transfer of licence.—(1) When there is any change of the occupier of factory before the expiry of the licence the new occupier shall within 15 days of the transfer, apply to the 1 [Inspector of Factories of the area concerned] for transfer of licence in his name: Provided that in the case of the death or insolvency of an occupier, the person succeeding or taking over the factory and functioning as the occupier shall apply for transfer and for amendment of the licence for the remaining period as soon as practicable, but in no case later than one month after the death or taking over: [Provided further that no such transfer of a licence will be made by the Inspector without obtaining prior approval of the Chief Inspector.] (2) The application for transfer shall be accompanied by a letter from the previous occupier or some other documentary evidence which may prove that the occupation of the factory has been transferred to the applicant. (3) The fee for transfer of licence shall be [one hundred rupees] and shall be payable by the new occupier applying for transfer of licence under sub-rule (1). (Emphasis supplied) It is submitted by the learned counsel for the petitioner nos. (3) The fee for transfer of licence shall be [one hundred rupees] and shall be payable by the new occupier applying for transfer of licence under sub-rule (1). (Emphasis supplied) It is submitted by the learned counsel for the petitioner nos. 1 & 2 that duty is caste upon the new occupier of the factory and certainly since neither the petitioner no.1 or petitioner no.2 was either the occupier or the new occupier at any point of time, hence the duty cast under the said Rule 8 of the Bihar Factory Rules, 1950 is not applicable either to the petitioner no.1 or to the petitioner no.2, hence, continuation of the proceeding against the petitioner nos. 1 & 2 will amount to abuse of process of court. Hence, it is submitted by the learned counsel for the petitioner nos. 1 & 2 that the entire criminal proceeding arising out of Complaint Case No. 05 of 2021 including the order taking cognizance dated 04.01.2021, passed by the learned Chief Judicial Magistrate, Bokaro, whereby and where under cognizance for the offences punishable under Section 92 of the Factories Act, 1948 has been taken and summons were issued, be quashed and set aside qua the petitioner nos. 1 & 2 only. 8. The learned A.A.G. –III on the other hand submits that, true it is that, on 07.10.2020, the complainant was knowing that the said Atanu Bhowmick was the occupier of the factory but on 06.10.2020 in view of the fact that Bokaro Steel Plant, Steel Authority of India Limited is not a factory owned or controlled by the Central Government, hence under Section 2(n)(ii) of the Factories Act, 1948 which reads as under:- 2(n) “occupier” of a factory means the person who has ultimate control over the affairs of the factory : [Provided that— (i) xxxxx (ii) in the case of a company, any one of the directors shall be deemed to be the occupier: ] Any one of the Director could be deemed to be occupier, hence the Director In-charge has been arrayed as an accused as the occupier and the petitioner no.2 has been arrayed as a Manger of Bokaro Steel Plant, Steel Authority of India Limited. Hence, it is submitted that since the offences punishable under Section 92 of the Factories Act, 1948 read with Section 7A (2)(b), 2(c) and 2(d) read with Rule 55A of the Bihar Factories Rule, 1950 as also Section 6 of the Factories Act, 1948 read with Rule 8 of the Bihar Factories Rules, 1950 is made out, hence, the learned Chief Judicial Magistrate has rightly taken cognizance against the petitioner nos. 1 & 2 as well. So far as the Notification of the Ministry of Steel, Government of India bearing S.O. 2477 (E) dated 28th July, 2020 the learned A.A.G.-III submits that the same is an amendment of the Notification of Government of India in Ministry of Steel No. S.O. 3220(E), dated 19th November, 2015. Hence, from the same, it is not clear, as to whether the said Atanu Bhowmick was the occupier of Bokaro Steel Plant, Steel Authority of India Ltd or not. Hence, it is submitted that since Bokaro Steel Plant, Steel Authority of India Limited is not a factory owned or controlled by the Central Government, hence both the petitioner nos. 1 & 2 have been arrayed as accused rightly for violation of the said offences. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 9. Having heard the submissions made at the bar and after going through the materials in the record, it is crystal clear from para -4 of the statement of the complainant himself that on 07.10.2020, he was very much aware that the said Atanu Bhowmick was the occupier of the factory concerned. 10. Perusal of the record reveals that the complaint has been lodged on 24.12.2020. So by 24.12.2020, that is on the date of lodging the complaint, the complainant was very much aware that the said Atanu Bhowmick was the occupier of the factory concerned at least on 07.10.2020. There is no material in the record to support the contention of the learned A.A.G. –III that there was someone else who was the occupier of the factory, one day before that on 06.10.2020 when the occurrence took place. 11. In view of the provisions of the Factories Act and Rules made there under, the Factory Inspector has the information with him, as to who was the occupier of the factory concerned on the date of alleged occurrence. 11. In view of the provisions of the Factories Act and Rules made there under, the Factory Inspector has the information with him, as to who was the occupier of the factory concerned on the date of alleged occurrence. Under such circumstances, this Court do not find any merit in the contention of the learned A.A.G. –III that there was some chance of either the petitioner no.1 or the petitioner no.2 being the occupier of the factory. 12. Since in the complaint, it has been categorically mentioned that the petitioner no.3 –Sanjay Kumar has been arrayed as a manager of the said factory, so there is no plausible reason to array another person in addition to the petitioner no.3 of the complaint namely Sanjay Kumar in capacity of the Manager of the said factory. Hence, this Court is of the considered view that even if the entire allegation made in the complaint is treated to be true, still no offence punishable under Section 92 of the Factories Act, 1948 read with Section 7A (2)(b), 2(c) and 2(d) read with Rule 55A of the Bihar Factories Rule, 1950 or Section 92 of the Factories Act, read with Section 6 of the Bihar Factories Act, 1948 read with Rule 8 of the Bihar Factories Rules, 1950 is made out either against the petitioner no. 1 or against the petitioner no. 2 and the continuation of this criminal proceeding against the petitioner no.1 & 2 will amount to abuse of process of court . Therefore this is a fit case where the entire criminal proceeding arising out of Complaint Case No. 05 of 2021 including the order taking cognizance dated 04.01.2021, passed by the learned Chief Judicial Magistrate, Bokaro, whereby and where under cognizance for the offences punishable under Section 92 of the Factories Act, 1948 has been taken and summons were issued, now pending in the Court of learned Chief Judicial Magistrate, Bokaro be quashed and set aside qua the petitioner nos. 1 & 2 only. 13. 1 & 2 only. 13. Accordingly, the entire criminal proceeding arising out of Complaint Case No. 05 of 2021 including the order taking cognizance dated 04.01.2021, passed by the learned Chief Judicial Magistrate, Bokaro, whereby and where under cognizance for the offences punishable under Section 92 of the Factories Act, 1948 has been taken and summons were issued, now pending in the Court of learned Chief Judicial Magistrate, Bokaro is quashed and set aside qua the petitioner nos. 1 & 2 only. 14. In the result, this criminal miscellaneous petition is allowed. 15. The interim order granted earlier stands vacated.