V.K. Jadhav, J.

With consent of learned counsel for the parties, both Writ Petitions are heard finally.

2. In the instant criminal writ petitions, the petitioner has challenged the orders of issue of process passed by the learned Chief Judicial Magistrate, Aurangabad, dated 3/4/2016, respectively, in complaint bearing SCC 2228 of 2006 for the offences punishable under section 7(A)(2)(a) r/w section 92 of the Factories Act, 1948 and in the complaint bearing SCC 2229 of 2006 for the offences punishable under section 32(c) r/w. section 92 of the Factories Act, 1948 (for short "the Act").

3. Brief facts giving rise to the present criminal writ petitions are as follows :-

The petitioner was at the relevant time, the managing director and the occupier of SKOL Breweries Ltd., Unit : Pals Distilleries Ltd., situated at L-5, M.I.D.C, Waluj, Aurangabad. The said factory is engaged in manufacturing the beer. In the first half of the year 2005, the said factory was to undergo expansion and modernisation which included erection of malt silos and bucket elevator in a part of the land covered by SKOL Breweries Ltd. Tenders were invited by the Brewery and consequently the contract for erection of malt silos was given by the petitioner to a construction company namely Briggs of Burton (I) Pvt. Ltd., Bangalore. The said company Briggs of Burton (I) Pvt. Ltd. entered into a contract with sub-contractor M/s. Rajkamal Engineering, Aurangabad and sub-contracted a part of its work to them. The said construction work was supervised by one Chourasiya Rakesh, Engineer of the Contractor, Briggs of Burton (I) Pvt. Ltd. and also by the proprietor of the sub-contractor M/s. Rajkamal Engineering.

On 5/1/2006, as per the routine, the subcontractor's workers resumed their duties at 9.00 am and two of the sub-contractors's workers Shri Ashok Mule and Shri Abhiman Korde were carrying out the erection of the bucket elevator which was at a height of 25 M. Both the workers climbed the staircase from the backside of the bucket elevator and reached the platform of the elevator which was at a height of 25 M. Once the task was accomplished, worker Shri Abhiman Korde de-anchored his safety belt before descending the staircase. Another worker Shri Ashok Mule was on his way down when all of a sudden, the bucket elevator stared bending and due to movement of the elevator, Shri Mule lost his balance and fell on the ground. Shri Korde somehow managed to reach to the derric and climbed down. Shri Korde suffered minor injuries. However, due to the said fall, Shri Mule suffered serious injuries and was declared dead by the doctors at the Government Hospital, Aurangabad.

On the next day, i.e. on 6/1/2006, the respondent along with another Deputy Director visited the said factory of the petitioner and made report of the accident. The company also filed report of the accident in Form 24 as required under the Factories Act to the respondent. The respondent also visited the petitioner's factory for making enquiry into the accident. The respondent however filed two separate complaints at Aurangabad. The learned Chief Judicial Magistrate by order dated 3/5/2006, has issued the process against the petitioner as aforesaid. Hence, these Criminal Writ Petitions.

4. Learned counsel for the petitioner submits that the site where the construction of malt silos was being carried out, cannot be said to be the factory, as no manufacturing process was being carried out. Constructions of malt silos is totally distinct and separate from the manufacturing process of the factory. Learned counsel submits that the construction of new structure cannot be said to be a manufacturing process and the site where the activity completely disassociated with the manufacturing process being carried out cannot be said to be the factory as defined under the Act. Learned counsel further submits that the victim of the accident, who were employed by the subcontractor cannot be said to be a worker as defined under