Cognizance of an offense under the Factories Act requires a complaint by an Inspector or previous sanction in writing from an Inspector, as per S. 105 of the Act.

K. P. MOHAPATRA, J.

( 1 ) THIS revision is directed against the order passed by the Sub-Divisional Judicial Magistrate, Koraput, raking cognizance of offences under Ss. 304-A of the I. P. C. and 92 of the Factories Act ('act' for short) against the petitioners.

( 2 ) THE prosecution case in short is that petitioner 1 is the Project Manager and petitioner 2 is the Mechanical Engineer of the Hindustan Construction Co. Ltd. , entrusted with the construction of the Cooling Plant of Kolab Dam Works. In the course of construction, the petitioners had erected a platform at a height of 60' from the ground level approachable through a ladder. The floor of the platform, however, was not complete, inasmuch as, there was a blank space though surrounded by four parapet walls. There was an iron barricade on the right side of the ladder but there was no such protection on the left side. On 24-6-1983 at about 12. 45 p. m. the deceased, named Md. Mustafa Khan, was working along with two other labourers on the platform. During the course of work when he attempted to get down the ladder from the platform, his feet slipped and he fell down on the ground, about 60' below, by the left side of the ladder where there was no iron barricade. He sustained injuries and while on treatment he died. If the platform would have been complete and there would have been a barricade on the left side of the ladder, the deceased could be protected. The petitioners, who are in charge of construction of the Cooling Plant, were negligent and were responsible for the death of the deceased attracting S. 304-A; I. P. C. Further, they violated the provisions of S. 32 and are liable to be punished under S. 92 of the Act. The Sub-Inspector of Kolab Outpost drew up F. I. R. and after investigation the investigating officer submitted charge-sheet against the petitioner for having committed offences under Ss. 304-A, I. P. C. and 92 of the Act.

( 3 ) THE learned Sub-Divisional Judicial Magistrate, Koraput, on consideration of the materials available in the police case diary took cognizance of the aforesaid offences against the petitioners by the impugned order.

( 4 ) MR. B. M. Patnaik, learned counsel appearing for the petitioners, contended that for contravention of the provisions of S. 105 of the Act, the order of the learned Sub-Divisional Judicial Magistrate, Koraput, raking cognizance of the offence under S. 92 of the Act against the petitioners must have to be quashed. The contention requires careful examination.

( 5 ) IN the charge-sheet, there is specific mention that the petitioners had violated the provisions of S. 32 punishable under S. 92 of the Act. S. 32 provides the safety measures that should be taken for constructions of floors, stairs and the means of access in every, factory. If such precautions have not been taken and the obligations incumbent under S. 32 have not been discharged and breach of the statutory duty results in injury or death, the persons responsible can be punished under S. 92 which is the general penal provision for all offences under the Act. According to the prosecution, the petitioners had the statutory duty of raking safety measures as provided under S. 32 and as they did not fulfil the obligations incumbent under that section, which occasioned the death of a labourer, they are ordinarily liable to be punished under S. 92 of the Act.

( 6 ) SECTION 105 (1) of the Act, which is relevant for the purpose of our discussion, is quoted below for easy reference. "no Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, an Inspector. " the section envisages two alternative conditions before cognizance of an offence under the Act can be taken by a competent Court. The first is that the complaint must be made by an Inspector appointed under S. 8 of the Act or, second, with the previous sanction in writing of an Inspector. Unless, either of the conditions is fulfilled, rakin