Bombay High Court
Izhar Nizamulhak Khan vs State Of Maharashtra And Anr on 6 January, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
TRUPTI
SADANAND
BAMNE 2025:BHC-AS:1374-DB
Digitally signed by
TRUPTI SADANAND
BAMNE
Date: 2025.01.13
17:53:42 +0530
Trupti 2-APL-881-2022.odt
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 881 OF 2022
Mr.Izhar Nizamulhak Khan,
Age 59 years, Occ. Service,
Residing at House No. 1595,
Reva Agar Road,
Mira- Bhayandar (W),
Dist. Thane ... Applicant
versus
1. State of Maharashtra,
through the office of the
Learned Public Prosecutor,
High Court of Bombay,
Mumbai.
2. The Investigating Officer,
Mira-Bhayandar Police Station,
Mira-Bhayandar (W), Dist. Thane ... Respondents
...
Dr.Dashrath S. Hatle for the Applicant.
Mr.S.V.Gavand, Addl.GP for the Respondent -State.
Mr.Kishor Mane, API, Bhayandar Police Station.
....
CORAM : RAVINDRA V. GHUGE AND
RAJESH S. PATIL, JJ.
DATE : 6th January, 2025
JUDGMENT (Per: Ravindra V. Ghuge, J.)
1. The Applicant Accused has put forth prayer clause (a) as
under :
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"a) This, Hon'ble Court be pleased to call for the
records and proceeding in RCC No. 1528 of 2022
from of Ld. JMFC Court at Thane (Mira-Bhayandar)
and after perusing the same for its correctness,
legality and the propriety of the impugned FIR No.
0047/CR No. 41 of 2022 dated 02/02/2022, instituted
by the Bhayandar Police Station under the provision
of Section 304A of the Indian Penal Code, be pleased
to quash and set aside the same, by allowing the
present application".
2. We have considered the strenuous submissions of the
learned Advocate for the Applicant and the learned Addl.PP.
3. The Applicant before us is the Factory Manager of M/s.
Shree Shakti Weldtech Private Limited, a Company, registered under the
provision of the Indian Companies Act, 1956 (the Act of 1956). The
factory was registered under Rule 6 of the Maharashtra Factories Rules,
1963 (in short, 'the Factories Rules of 1963') and was issued with the
factory license. The said license was renewed for the period from 1 st
January, 2021 to 31st December, 2022.
4. The Applicant was designated as a Factory Manager within
the meaning of Rule 2 (m) of the Factories Rules of 1963. On 31 st May,
2021, an accident took place in the premises of the factory at about 3.50
pm. One of the contract labourers, namely, Shri Ilyas Abdul Jabbar
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Sayyed, working in the factory premises, met with an accident and died
on account of the injuries sustained in the said accident. It is admitted
position that it was not an industrial accident, meaning that the death was
not caused by an accident that occurred during the manufacturing
process.
5. On 2nd June, 2021, the accident report was tendered to the
Factory Inspector in Form No. 24. On 3 rd June, 2021, the Senior
Inspector of Vinoba Bhave Nagar Police Station, Mumbai transferred all
the documents to the Bhayandar Police Station with regard to the death
of Shri Ilyas Abdul Jabbar Sayyed (hereinafter referred to as the
deceased), bearing Accidental Death No. 00 of 2021 under Section 174
of the Code of Criminal Procedure, 1973 ('the Cr.PC'), vide letter
bearing reference No. 3532 of 2021. After the letter was received, the
Havildar, Shri Rajesh Yashwant Keni, called upon the Occupier of the
factory and directed him to furnish the documents such as attendance
sheet of the employees as on 31st May, 2021 and the factory license, as
well as the letter of declaration about the Factory Manager. The Factory
Inspector visited the factory premises on 2 nd July, 2021 and served the
inspection remarks upon the Occupier.
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6. On 5th July 2021, the Factory Inspector served a show cause
notice upon the Occupier of the factory, Shri.Chetan Shah. The Occupier
replied to the show cause notice on 12 th July, 2021. The Factory
Inspector prosecuted the Occupier by filing a criminal complaint bearing
SCC No. 7738 of 2021 before the learned Chief Judicial Magistrate at
Thane.
7. In view of the death of Shri Ilyas Abdul Jabbar Sayyed, the
Company paid an ex-gratia amount of Rs. 1,00,000/- to the father of the
deceased on 28th October, 2021. His service legal dues were also paid.
8. On 2nd February, 2022, a First Information Report (FIR)
bearing No. 0047 of 2022, was lodged against the present Applicant,
who was the Manager of the Factory. The Investigating Officer filed the
charge-sheet on 31st March, 2022. By order dated 30th August, 2021,
passed below Exhibit 'F' in SCC No. 7738 of 2021, the learned Chief
Judicial Magistrate recorded the admission of guilt by Shri Chetan Shah
and after noting that Shri Shah has pleaded guilty voluntarily, he was
convicted under Section 252 of the Cr.PC and sentenced to pay fine of
Rs.50,000/- for the said offence, under Rule 73-F (a) and (b) of the
Factories Rules of 1963, punishable under Section 92 of the Factories
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Act, 1948 ('the Factories Act').
9. The grounds raised by the Applicant in this proceeding, can
be summarized as under :
(a) The filing of the FIR is improper and erroneous;
(b) The lodging of the FIR by the Bhayander Police Station
under Section 304A of the Indian Penal Code, 1860 (the IPC)
is unwarranted and uncalled for in view of the decision of the
Competent Court in SCC No. 7738 of 2021;
(c) Since the Occupier was prosecuted under Section 73-F
(a) and (b) of the Factories Rules of 1963 read with Section
92 of the Factories Act, the Applicant cannot be prosecuted
for the same offence, since the provisions under which the
Occupier has been prosecuted, would override Section 304 A
of the IPC;
(d) The Investigating Officer should have called for a
report from the Factory Inspector in respect of the said
incident and it being an industrial accident, the Applicant
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cannot be prosecuted under Section 304A of the IPC.
(e) The proposed prosecution of the Applicant is hit by
Article 20 (2) of the Constitution of India since the lodging of
the FIR against the Applicant would amount to a second
prosecution and it would amount to punishment for the same
offence as the Occupier of the factory has already been
prosecuted.
(f) The ingredients under the provisions of the Factories
Act and the Rules made thereunder, are one and the same as
Section 304A of the IPC.
(g) The provisions of the Factories Act and the IPC cannot
go together and the special law will prevail over the general
law.
(h) Though intimation of the accident was given to the
Vinobha Bhave Police Station after the death of Ilyas on 31 st
May, 2021, yet an FIR has been lodged by the Investigating
Officer against the Applicant on 2nd February, 2022.
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(i) There has been a delay in filing the FIR.
(k) The Investigating Officer would not be in a position to
prove the offence against the Applicant under Section 304 A
of the IPC.
(l) A safety belt was provided to the deceased and since it
broke and the helmet separated from the deceased, the fall of
the deceased from the roof of the factory resulted in his death.
(m) After the Occupier was prosecuted under the provisions
of the Factories Act, the Manager cannot be prosecuted by
invoking Section 304A of the IPC.
(n) A person cannot be punished twice for the same
offence considering Section 26 of the General Clauses Act,
1897 and prosecuting the Occupier and now prosecuting the
Applicant, is out of one and the same incident.
10. The learned Advocate for the Applicant has placed reliance
upon the following judgments :
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i) Manipur Administration, Manipur v. Thokchom Bira Singh1;
ii) Kurban Hussein Mohamedalli Rangawalla Versus State of
Maharashtra2;
iii) Neeraj Verma Versus State of Madhya Pradesh3;
iv) Ananthakumar Versus State of Karnataka4;
v) Ajeet Vikram Bahadur Singh Versus State of Maharashtra5.
11. The learned Addl.PP has vehemently opposed this
Application by contending that the Applicant was never prosecuted
under the provisions of the Factories Act and the Rules thereunder.
Initially, after the accident was reported to the Police Station,
considering Section 92 of the Factories Act. The Occupier was
prosecuted considering the fact that he was the person who was
responsible for all acts, omissions and commissions in the factory under
the provisions of the Factories Act, more particularly, with reference to
any accident that may take place in the factory premises while operating
the factory.
12. During investigation and before the learned Chief Judicial
Magistrate could convict the Occupier under Section 252 of the Cr.PC
1 1965 (1) CRI LJ 120
2 (1965) 2 SCR 622
3 (2016) 149 FLR 784
4 2019 Cri.L.J.3825
5 2024 SCC Online Bom 3607
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and the provisions of the Factories Act, it was revealed in the
investigation that, the present Applicant had unauthorizedly directed the
deceased to climb up the roof of the factory and install asbestos sheets.
The deceased was an employee of the factory and was discharging duties
as a welder. No specific agency was called in to repair the torn roof of
the factory. Because the Manager directed the deceased, though he was a
trained welder and had nothing to do with the installation of the sheet on
the roof, he obeyed the Manager and climbed up the roof.
13. The learned Addl.PP further submits, that according to the
Investigating Officer, safety measures were not followed. According to
the Applicant, a safety belt was given to the deceased. The belt broke
since the deceased was destabilized due to strong winds and he fell down
from the roof onto the floor in the factory. The death occurred on
account of serious injuries caused to the chest and the abdomen of the
deceased. Since the Investigating Officer noticed during investigation
that the Manager had actually issued the direction, that an FIR has been
registered.
14. The learned Advocate for the Applicant has submitted in
rebuttal that a statement was made before the learned Chief Judicial
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Magistrate that a belt was provided along with a helmet, to the deceased.
15. We have considered the above submissions of the respective
sides. The FIR is registered against the Applicant and Section 304A of
the IPC has been invoked. It is stated in the FIR that the cement sheets
on the ceiling of the factory had got damaged. For the purpose of letting
natural light, fiber sheets were also installed at different locations on the
ceiling. The factory was manufacturing railway bogie chassis and
various workers including the deceased were performing their work on
the said manufacturing activities. The deceased was a welder. Several
co-workers gave statements to the Investigating Officer during the
investigation that the Applicant/Manager had called upon the workers as
to whether they could mend the broken sheets on the ceiling. Ilyas was
one of the workers, who climbed up the ceiling. While trying to fix a
new sheet on the ceiling, he fell down from the roof. Iron plates and
machines were lying on the floor and that caused injuries to the
deceased.
16. Taking into account these aspects which were revealed
during investigation, the Investigating Officer formed an opinion that the
death of Ilyas was not an incident that occurred while performing the
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normal duties in the factory for which he was appointed. Since he was
sent to the roof to do a job which he was neither trained for, nor was he
engaged for, the Investigating Officer formed an opinion that it was
because of the order of the Manager that the deceased went to the roof to
do the said work.
TWO ISSUES
17. Considering the submissions of the Applicant and the
learned Addl.PP, we find that there are two aspects in this matter. Firstly,
whether Article 20 (2) of the Constitution of India would have an
applicability in the light of the submissions of the Applicant that no
person shall be prosecuted or punished for the same offence, more than
once. Secondly, was it permissible for the Investigating Officer to
register an FIR against the Applicant after noticing his role while
carrying out investigation in the incident which was reported to the
Police Station.
CONCLUSIONS
18. In Manipur Administration, Manipur (supra) and Kurban
Hussein Mohamedalli Rangawalla (supra), the issue had reached the
Hon'ble Supreme Court after the conviction of the Accused. In Manipur
Administration, Manipur (supra), it was held that the rule of
issue-estoppel is not the same as the plea of double jeopardy. Section
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403 of the Cr.PC does not preclude the applicability of this rule of issue-
estoppel. While dealing with the judgment of the Judicial Commissioner
of Manipur setting aside the conviction and sentence by the Sessions
Judge, it was concluded as under :
"It is, therefore, clear that s. 403 of the Criminal
Procedure Code does not preclude the applicability of
this rule of issue-estoppel. The rule being one which
is in accord with sound principle and supported by
high authority and there being a decision of this Court
which has accepted it as a proper one to be adopted,
we do not see any reason for dis- carding it. We might
also point out that even before the decision of this
Court this rule was applied by some of the High
Courts and by way of illustration we might refer to
the decision of Harries, C. J. in Manickchand
Agarwala v. The State. Before parting, we think it
proper to make one observation. The question has
sometimes been mooted as to whether the same
principle of issue-estoppel could be raised against an
accused, the argument against its application being
that the prosecution cannot succeed unless it proves
to the satisfaction of the Court trying the accused by
evidence led before it that he is guilty of the offence
charged. We prefer to express no opinion on this
question since it does not arise for examination.
As stated earlier, if Pritam Singh's(') case was rightly
decided, it was conceded that the decision of the
Judicial Commissioner was right.
The appeal, therefore, fails and is dismissed.
Appeal dismissed".
On facts, the Hon'ble Supreme Court dismissed the Appeal preferred by
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the Manipur Administration against the acquittal of the Respondent.
19. In Kurban Hussein Mohamedalli Rangawalla (supra), the
Factory Manager was prosecuted for an offence punishable under
Section 304A of the IPC. The allegation of causing death of seven
workers by rash and negligent act of the Accused, was tried before the
Trial Court which handed down a conviction to the Appellant. The
Bombay High Court also confirmed the said conviction.
20. On merits, the Hon'ble Supreme Court concluded that the
death must be a direct result of the rash or negligent act of the Accused
and the act must be 'efficient cause' without intervention of another's
negligence. It was concluded that the conduct of the Factory Manager,
did not lead to the fire in the factory premises. Hence, the Factory
Manager was acquitted of the offence punishable under Section 304A of
the IPC, but was convicted with punishment of six months rigorous
imprisonment for the offence punishable under Section 285 of the IPC.
21. The view taken by the learned Single Judge in Neeraj
Verma (supra) and Ananthakumar (supra) and the view taken by the
Division Bench of this Court in Ajeet Vikram Bahadur Singh (supra),
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crystalize the law that a person cannot be prosecuted and punished twice
for the same offence.
22. The learned Advocate for the Applicant is unable to
convince us that because the Occupier was prosecuted under Section 92
of the Factories Act, the present Applicant is deemed to have been
prosecuted, though he was a Factory Manager. Whether the safety belt
malfunctioned or broke or whether the helmet was worn by Ilyas and it
got blown away, will have to be left for the trial Court to consider since
this would be a matter of documentary and oral evidence.
23. Only for the purpose of dealing with this Application under
Section 482 of the Cr.PC, we have considered the contents of the FIR
which indicate that the Investigating Officer noticed during investigation
and from the statement of other co-workers that the deceased had
climbed up the roof since it was the Manager who called upon the
workers to deal with the said problem. The deceased was not engaged for
performing the said task. He would not have climbed up the roof, had
the Manager not indicated to him that one sheet of the roof is broken and
mending work was required to be undertaken.
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24. Being an Occupier, the Joint Director, Industrial Safety
and Health, Thane, deemed it appropriate to prosecute the Occupier
under Section 92 of the Factories Act, which is in tune with the settled
principle of law. Every such accident has to be investigated into and the
Department of Industrial Safety and Health can refer the issue to the
Chief Judicial Magistrate for prosecuting the Occupier. While the
investigation was on and the case was registered before the Chief
Judicial Magistrate, the Investigating Officer found that the role of the
Applicant may have led to the death of Ilyas and Section 304A of the
IPC was invoked. This would not mean that the prosecution of the
Occupier is deemed to be prosecution of the Applicant/ Factory Manager.
A deeming fiction would not be applicable in such circumstances in
criminal jurisprudence. Under criminal law, a particular person can be
prosecuted and after trial, can be convicted. If it is noticed that under
the IPC, an act committed by a particular person, who is not the
Occupier so as to be prosecuted under Section 92 of the Factories Act,
we do not find that the Investigating Officer could be faulted for having
registered an offence against the Applicant on the basis of the
investigation carried out.
25. It is, thus, apparent that the present Applicant was never
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prosecuted earlier and the registering of the FIR against him, does not
amount to his second prosecution. In view of the above, we do not find
that this Application for quashing the FIR could be entertained.
27. 'Sans merite', this Criminal Application is dismissed.
(RAJESH S. PATIL, J.) (RAVINDRA V. GHUGE, J.)
