Petitioner has been charge-sheeted for the offence under

sections 287 and 304A of IPC.

The summary of the charge sheet is as follows:

On 27.09.2015, the husband of the 2nd respondent and

other two workers were hired by the contractor to clean the

reactor at the factory premises belonging to the petitioner. The

3 workers cleaned the ground floor of the production block

(reactor section) and left to have their dinner and returned to

work at 10.30 p.m. While the other two workers continued

cleaning work on the ground floor, the husband of the 2nd

respondent continued the cleaning work at the first floor, and at

about 11.15 p.m., other two workers called Lokesh for some

help, and when there was no response, the said workers went

to first floor and found the husband of the 2nd respondent,

Lokesh, lying unconscious in front of the reactor no.3 and he

was not wearing mask. The victim was taken to the hospital for

treatment, where he

was declared brought dead. The

cognizance taken by the learned Magistrate for the aforesaid

offence is impugned in this petition.

3.

The learned counsel for the petitioner submits that,

admittedly, the husband of the respondent No.2 was working

under the contractor who was entrusted for cleaning the floors

of the factory premises belonging to the petitioner, and in the

absence of any allegations that the respondent No.2 died due to

3

the rash and negligent act of the petitioner herein, the

cognizance taken by the learned Magistrate is impermissible.

4.

He further submits that the initiation of the

prosecution under Section 304A of IPC after the petitioner was

prosecuted for the offence under Section 92 of the Factories Act

is impermissible. In support, he places reliance on the decision

of the Co-ordinate bench of this Court in Crl.P.No.5115/2014.

5.

On the other hand, learned counsel for respondent

No.2 submits that the charge sheet material clearly disclose

that the husband of the 2nd respondent died due to the rash

and negligent act of the petitioner herein by not providing

safety devices and the veracity of the allegations made against

the petitioner-accused can be considered after full fledged trial,

and at this stage, the cognizance taken by the learned

Magistrate cannot be interfered with.

6.

Considered the submission made by the learned

counsel for the parties.

7.

It is undisputed that the deceased was working

under the contractor who was entrusted with the work of

cleaning the factory premises belonging to the petitioner. The

petitioner had no control over the deceased husband of the 2nd

respondent. The allegation is that, the husband of the 2nd

respondent died while working in factory premises after inhaling

poisonous substance, and the said accident occurred, since the

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deceased was not wearing the mask at the time of cleaning the

premises. The providing of the mask to the worker was the

responsibility of the contractor. Hence, the Petitioner cannot be

said to have acted rashly and negligently resulting in the

accident.

8.

The proceedings were initiated for the offence under

Section 92 of the Factories Act, on the very same set of charges

and in the said proceedings, the petitioner has pleaded guilty

and the trial court imposed fine of Rs.25,000/-.

9.

The co-ordinate bench of this court while dealing

with the question as to whether the simultaneous initiation of

prosecution under Section 304A of IPC and Section 92 of

Factories Act in W.P.No.5115/2014 disposed off on 28.05.2019

at paras 10 to 14 has held as follows:

"10.I am in respectful agreement with the view taken by

this Court in the above decisions. Even otherwise the scheme of

the Factories Act does not permit parallel prosecutions under

two different Acts against a person accused of committing

offences under the Factories Act. Section 92 is the only section

under the Act which makes the contravention of the provisions

of the Act, punishable as criminal offence and prescribes

punishment and fine."

11. The Section reads as un