Point of law: On account of specific prohibition/bar, as contained in section 22 of the Mines and Minerals (Development and Regulation) Act 1957, accused cannot be prosecuted on the basis of police report under section 173 Cr.P.C. And can be prosecuted only on complaint made by the officer concerned in case of contravention of section 4 of the Mines and Minerals (Development and Regulation) Act 1957, but prosecution of accused on the basis of police report under section 173 Cr.P.C. for the offence under Indian Penal Code is not barred by Section 22 of the Mines and Minerals (Development and Regulation) Act 1957.

ORDER :

1. Applicant, Manager of a factory of M/s Calcom Vision Ltd, which is situated at Surajpur Industrial Area, Greater Noida has approached this Court by way of filing present application under Section 482 Cr.P.C. for quashing the proceedings of Complaint Case No. 1942 of 2005 (State vs. Aijaz Gaffar) filed under Section 92 of the Factories Act, 1948, Police Station Surajpur, District Gautam Budh Nagar, pending before learned Chief Judicial Magistrate, Gautam Budh Nagar, U.P.

2. One Smt. Geeta Yadav Wife of Late Vijay Yadav lodged a FIR dated 11.03.2005 (Case Crime No. 32/2005), under Section 304A IPC that her husband who was working as Engineer with M/s Calcom Vision Ltd. died on 09.03.2005 within the premises of the factory, due to negligence of factory management as roof of the factory which was made of cement fell down when deceased went to repair the roof.

3. On 09.03.2005, inspection of the factory was conducted under Rule 123 of the U.P. factories Rules 1950, wherein multiple defaults were noted under various provisions of Factories Act, 1948 (hereinafter referred as to ‘the Act of 1948’) and Uttar Pradesh Factories Rules, 1950 (hereinafter referred as to ‘the Rules of 1950’). Accordingly, Inspection Report was prepared, shortcomings were noted under Rule 123, Section 31 Rule 56, Section 29 Rule 55A, Section 7A, Section 58 Rule 110, Rule 14D, Rule 107 (2) Rule 303 (3), Rule 52A etc. of the Act of 1948 and the Rules of 1950.

4. Additional Director, Factories UP, NOIDA Region, NOIDA filed complaint under Section 92 of the Act of 1948 against the petitioner for committing violation of Sections 31, 29 of the Act of 1948 read with Rules 56, 55A and 107 (2) of the Rules of 1950, before learned Chief Judicial Magistrate, Gautam Budh Nagar.

5. The Chief Judicial Magistrate, Gautam Budh Nagar took cognizance of the complaint (Complaint No. 1948/2005) on 24.05.2005 and issued summons to the applicant. As the complainant and witnesses were public servant and complaint was made under act in the discharge of their official duties, complainant and witnesses were not examined.

6. Applicant has challenged the entire proceedings arising out of Complaint Case No. 1943/2005 before the Court by way of filing present application under Section 482 Cr.P.C.

7. This Court has passed the following order on 13.07.2006:

“Heard learned counsel for the applicant and learned A.G.A.

It is contended by the learned counsel for the applicants that on the same allegations which have been made in the complaint an F.I.R. has been lodged against the Managing Director.

Issue notice to opposite party no. 2 returnable within a period of four weeks.

In view of the facts and circumstances of the case and submissions made by the learned counsel for the applicants and learned A.G.A. the further proceedings in Criminal Complaint Case No. 1942 of 2005 pending in the court of learned C.J.M. Gautam Buddh Nagar shall remain stayed till the next date of listing.

List after 4 weeks for orders.”

8. A counter affidavit has been filed on behalf of respondent No. 2 (Assistant Director factories U.P.) denying averments made in the application as well as submitted that certain violation of statutory norms were found during inspection of the factory.

9. Shri Ravi Kumar Pandey, learned counsel appearing on behalf of appellant submitted that since an FIR has been lodged against the applicant, therefore, no complaint under the Factories Act would be maintainable and further documents have been filed along with present application to show that factory had “Safety and Health Policy” and inspection was done at the back of the management of the factory.

10. Per contra, Shri M.P. Singh Gaur, learned A.G.A. for the State submitted that complaint was filed after several irregularities were noticed during inspection. He further submitted that learned trial court has rightly taken cognizance and summoned the applicant.

11. Heard learned counsel for the parties and perused the material available on rec