IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:19.09.2024 Coram:

THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN Crl.O.P.No.22994 of 2024 and Crl.M.P.No.13076 of 2024

1.Mr.V.Joseph Wilson

2.C.Mohamed Nizar

3.K.Arun Kumar

4.S.Raja .. Petitioners/

Accused 1-4 /versus/

1.State rep.by Station House Officer, Sedarapet Police Station, Puducherry 605 111, Crime No.49 of 2016 .. Complainant

2.D.Prabhakaran .. Defacto Complainant's Criminal Original Petition has been filed under Section 528 of BNSS 2023, to call for the records in C.C.No.92 of 2018 on the file of learned Judicial Magistrate No.IV, Puducherry and quash the same as illegal.

For Petitioners :Mr.S.Balamuki For R1 :Mr.K.S.Mohan Dass P.P.(Pondy) Asst. by Ms.N.Dhanalatchumi ----

ORDER On 24.10.2016, an accident in the premises of the petitioner's Industry took place, resulted in a death of one of the workmen, due to malfunction of the lift. The Inspector of Factory initiated prosecution under the Factories Act. Simultaneously, the 1^st respondent police also registered case in Crime No.49 of 2016 for the alleged offences under Sections 287 and 304(A) of IPC. The petitioners filed Crl.O.P.Nos.2764 & 2765 of 2017 to quash the cases in S.T.C.No.5 & 4 of 2017 and taken on file by the Chief Judicial Magistrate, Puducherry, on the complaint given by the Inspector of Factory.

2. This Court analysing the provisions of the Factories Act, 1948 under Sections 28(1)(e), 28(2)(a) and 28(2)(c), under which the criminal prosecution was launched for contravention of the safety measures, found that there is a lapse in the complaint and also took note of the fact that the State has already initiated prosecution against the petitioners and pending in C.C.No.92 of 2018 on the file of the Judicial Magistrate No.IV, Puducherry. The prosecution initiated by the Inspector of Factory pending in S.T.C.Nos. 4 and 5 of 2017 was quashed. As far as the criminal prosecution launched by the State and pending in C.C.No.92 of 2018, a discharge petition was filed before the trial Court and the same was dismissed. Aggrieved by the dismissal order the petitioners filed Criminal Revision Case No. 496 of 2020 before the High Court and the High Court dismissed the Criminal Revision Case with a direction that the trial should be completed preferably within a period of three months from the date of receipt of the copy of that order and both the parties were directed to extend their fullest co-operation to comply the order. Though this order was passed on 05.01.2023, till date trial is not completed. Though the prosecution has completed examining the witnesses for prosecution, this has to be noted that the petitioners preferred S.L.P.(Crl.)Diary No.9011 of 2024 with delay challenging the dismissal of the Crl.R.C.No.496 of 2020 and the same was dismissed by the Hon'ble Supreme Court vide order dated 10.05.2024. Thereafter, the present Original Petition is filed to quash C.C.No.92 of 2018 pending on the file of the Judicial Magistrate No.IV, Puducherry.

3. The learned counsel appearing for the petitioners submitted that the present petition is filed under Section 528 of BNSS. Earlier petition was filed to discharge under the old Code. Therefore, the present petition is maintainable. That apart, the learned counsel further submitted that since his complaint initiated by the Inspector of Police under the Factories Act has already been quashed, for the very same offence there cannot be other prosecution. The learned counsel also submitted that the ingredient to attract offences under Sections 287 and 304(A) of IPC is not available in the complaint or in the statements of the witnesses. 4. According to the learned counsel appearing for the petitioners, to attract offence under Section 287 of IPC, the accused must be in their possession of some machinery and also been fastened with responsibility to take care of the machinery and further, there must be omission to take sufficient guard against any probable danger to human life from such mac