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IN THE HIGH COURT OF KARNATAKA
JOHN MICHAEL CUNHA, J.
Ananthakumar - Appellant
Versus
State of Karnataka - Respondent
Criminal Petition No. 5115 of 2014
Decided On : 28-05-2019
Factories Act, 1948 - Section 7-A(2)(c) - General Clauses Act - Section 26 - Karnataka Factories Rules - Rule 84 - Indian Penal Code - Section 304-A – Criminal Procedure Code - Section 482 – Quash of order – First Information Report - Jurisdiction of Court - Whether initiation of prosecution under Section 304-A of IPC while prosecution for offences punishable under Section 92 of Factories Act is legally permissible - Whether parallel or simultaneous prosecution is legally impermissible - Whether contravention of Section 29(1)(a)(ii) and Section 32(b) of Factories Act, 1948 of Factories Act punishable under Section 92 be clubbed with offence punishable under Section 304-A of Indian Penal Code - Petitioners were Directors of Granites Pvt. Ltd. involved in process of cutting and polishing granites - A complaint was lodged against petitioners by one alleging that a worker by name who was working in night shift at Granites Pvt. Ltd. met with an accident and succumbed to injuries and died - Based on this complaint FIR was registered against petitioners in Crime and after investigation charge sheet was laid for offence under Section 304-A of Indian Penal Code and learned Magistrate took cognizance of said offence and issued summons to petitioners - Aggrieved by said action petitioners have invoked jurisdiction of this Court under Section 482 of Criminal Procedure Code seeking to quash said proceedings – Held, This provision if read in backdrop of Section 88 of Act it casts an obligation on occupier to give notice of accident within hours immediately following accident to authorities constituted under Act - Section 9 of Act deals with powers of Inspectors - It empowers Inspectors to inquire into any accident or dangerous occurrence resulting in bodily injury disability and to take on spot or otherwise statements of any person which he may consider necessary for such inquiry – Thus scheme of Act provides for an independent mechanism for inquiry or investigation into accident taking place within premises of factory by Inspectors but it does not invest power on police to register and investigate offences against occupiers or other personnel of factory - On other hand Section 105 of Act mandates that no Court shall take cognizance of any offence under this Act except on complaint by or with previous sanction in writing of an Inspector - This provision therefore impliedly ousts jurisdiction of police to register FIR in respect of alleged contraventions of Factories Act and to embark upon investigation thereon even if contravention leads to accident resulting in death or bodily injury within factory premises - These special provisions therefore prevail upon general provisions contained in Indian Penal code and operate as implied repeal of substantive offence created under general law viz. Section 304A of Indian Penal Code as it renders accused culpable for same offence as described in Section 92 of Act in respect of death or bodily injury arising due to contravention of provisions of Factories Act - Facts on record clearly disclose that on getting information of accident Deputy Director of Factories and Labor Officer rushed to spot and took up inquiry/investigation and having ascertained that petitioners herein contravened provisions of Factories Act resulting in death of five of its workers filed a complaint before Judicial Magistrate of First Class - Same was numbered - It is not in dispute that learned Magistrate has taken cognizance of alleged contraventions punishable under Section 92 of Act and has issued summons to petitioners - It is also not in dispute that said complaint is filed within limitation prescribed under Section 106 of Act – Undoubtedly proceedings are initiated in accordance with law and same are pending consideration of learned Magistrate - That being case Police could not have registered a case in Crime against petitioners for alleged offence punishable under Section 304- A of Indian Penal Code and proceeded with investigation and filed a charge sheet for above offences nor could learned Magistrate have taken cognizance of said offence and issued summons to petitioner - Needless to say that in view of specific bar contained in Section 105 of Act learned Magistrate could not have assumed jurisdiction to take cognizance of alleged offence except upon complaint filed by authorized officer viz. Inspector appointed under Factories Act – Moreover learned magistrate having already taken cognizance of alleged offence based on complaint lodged by Asst. Director of Factories in view of Section 26 of General Clauses Act cognizance taken by learned Magistrate and summons issued to petitioners to face charges for alleged offence under Section 304-A of Indian Penal Code being legally untenable cannot be sustained - Petition is allowed
JUDGMENT :
John Michael Cunha, J.
Petitioners have sought to quash the Criminal proceeding initiated against them in C.C.No.823/2013 for the alleged offence punishable under Section 304-A of the Indian Penal Code.
2. Petitioners were the Directors of M/s Biligiri Granites Pvt. Ltd. involved in the process of cutting and polishing granites. A complaint was lodged against the petitioners on 20.11.2012 by one Ramesh Kumar, alleging that on 19.11.2012, a worker by name Thansuk ram, who was working in the night shift at M/s Biligiri Granites Pvt. Ltd. met with an accident at 1.00 a.m. and succumbed to injuries around 3.45 a.m. and died. Based on this complaint, FIR was registered against the petitioners in Crime No.240/2012 and after investigation, charge sheet was laid for the offence under Section 304-A of the Indian Penal Code and the learned Magistrate took cognizance of the said offence and issued summons to the petitioners in C.C.No.823/2013. Aggrieved by the said action, the petitioners have invoked jurisdiction of this Court under Section 482 of Cr.P.C. seeking to quash the said proceedings.
3. The contention of the petitioners is that the alleged accident did not take place in their factory premises. In respect of the same accident, the Assistant Director of Mysore Division has filed a complaint against the petitioners in C.C.No.167/2013 and hence, the proceedings initiated against the petitioners for the same offence in C.C.No.823/2013 at the instance of respondent-police is illegal, untenable and abuse of process of Court and thus, petitioners have sought to quash the said proceedings.
4. I have heard the learned Senior counsel appearing for the petitioners and learned Additional SPP for respondent No.1.
5. Learned Senior counsel for the petitioners has mainly relied on the Judgment of this Court in Crl.P. Nos.9104/2009 c/w 9105/2009 and other matters (AJIT KULKARNI V- THE STATE OF KARNATAKA BY SEDAM POLICE) and emphasized that in respect of the very same incident, the Factory Inspector had filed a criminal case in C.C.No.823/2013 on the file of learned JMFC, Chamarajanagar against petitioner No.2, Director-cum- Occupier under the Factories Act alleging violation of Rule 84 of the Karnataka Factories Rules r/w Section 7-A(2)(c) of Factories Act, 1948 ('The Act' for short). The JMFC, Chamarajanagar took cognizance of the matter and issued process to petitioner No.2 in C.C.No.823/2013. In view of the pendency of this case, respondent-police could not have assumed jurisdiction to file criminal case against the petitioners in respect of the very same accident. When a prosecution is launched under special law, prosecution under Section 304(A) of Indian Penal Code constitutes abuse of process of law. The action initiated against the petitioners is in violative of Section 300 of Cr.P.C, and hence, the proceeding filed against the petitioners in C.C.No.823/2013 are liable to be quashed. On the same point, learned counsel has placed reliance on the other decisions of this Court in Crl.P.No.201009/2014 Dated 21.04.2016 (M. ZAKIR AHMED Vs. STATE OF KARNATAKA AND ANOTHER) and Crl.P.No.5745/2014 Dated 27.1.2016 (SMT. V. REVATHI AND ANOTHER Vs. THE STATE OF KARNATAKA). In support of his argument, learned counsel has also relied on the decision of the High Court of Jharkhand in 2007 (113) FLR 1144 : LLR-2007-0-866 (ASHWINI KUMAR SINGH Vs. STATE OF JHARKHAND, (T. BARAI Vs. HENRY AH HOE AND ANOTHER, (1983) AIR SC 150 ( VYSHALI MAHILA SAMA Vs. STATE OF KARNATAKA, 2004 ILR(Kar) 2297).
6. Further, referring to Sections 105 and 106 of the Act, learned counsel argued that the cognizance taken by the learned Magistrate being opposed to the provisions of the Act, the subsequent proceedings conducted by the learned Magistrate are also bad in law and without jurisdiction and hence, the entire proceedings are liable to be quashed at the hands of this Court in exercise of the jurisdiction under Section 482 of the Cr.P.C. to prevent further abuse of the pr
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