Bombay High Court
Nikhil Purushottam Tirupude vs State Of Mah. Thr. Pso Ps Jawahar Nagar ... on 4 November, 2025
2025:BHC-NAG:11473-DB
J-apl1320.21 final.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.1320 OF 2021
Nikhil Purushottam Tirpude,
Aged about 34 years,
Occupation : Business,
R/o. Mangal Pande Ward,
Near Gurjar Petrol Pump, Bhandara. : APPLICANT
...VERSUS...
1. State of Maharashtra,
through its Police Station Officer,
Jawahar Nagar Police Station,
District Bhandara.
2. Devram Sakhre,
Aged about 56 years,
Occupation : Police Constable,
R/o. C/o. Jawahar Nagar Police Station,
Bhandara. : NON-APPLICANTS
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Mr. Raju Kadu, Advocate for Applicant.
Mrs. S.S. Dhote, Additional Public Prosecutor for Non-applicant No.1.
Ms. Ashwini R. Ingole, Advocate for Non-applicant No.2.
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 10th OCTOBER, 2025.
PRONOUNCED ON : 04th NOVEMBER, 2025.
JUDGMENT :
(Per : Nandesh S. Deshpande, J.)
1. Heard. Admit. Heard finally by consent of learned
counsel appearing for the parties.
2. This is an application filed under Section 482 of the
Code of the Criminal Procedure for quashing of Charge-sheet
culminating into Summary Criminal Case No.572/2020, pending
before the Judicial Magistrate, First, Class Bhandara, for the
offences punishable under Sections 337, 338 and 304-A of the
Indian Penal Code and Charge-sheet bearing No.26/2020, dated
18.5.2020 filed in pursuance to First Information Report
No.37/2020.
3. The First Information Report called in question alleges
that the applicant herein is the owner and engaged in process of
manufacture of cement bricks. On 20th October, 2019, an accident
occurred during the process of said manufacturing of cement
bricks, as the pressure of autoclave was increased resulting in its
explosion. The front shell of the autoclave was thrown away in
high speed which hit one employee named Manoj Ghule, as a result
of which he expired and four persons suffered minor injuries. It is
further stated that on 21.10.2019 an unnatural death (UD)
No.19/2019 was registered on the report of one Manik Chopkar
and forwarded the same to the Sub-Divisional Magistrate,
Bhandara for inquiry. On 20.12.2019 the Deputy Director of
Industrial Safety and Health, Bhandara visited the premises and
conducted inquiry and filed a complaint on behalf of State before
the Additional Chief Judicial Magistrate, Nagpur for the offences
committed under Rule 4(4) and 65(4) of the Maharashtra Factories
Rules, 1963 which are punishable under Section 92 of the Factories
Act, 1948. The said complaint was registered as Summary Criminal
Case No.2444/2019.
4. In the said criminal case, the applicant herein pleaded
guilty and was convicted under Section 252 of the Code of Criminal
Procedure for the offence punishable under Section 92 of the
Factories Act, 1948 and was sentenced to pay fine of Rs.25,000/-,
and in default of fine to undergo 10 days simple imprisonment as
per the order on 25.9.2021 by the Panel Head National Lok Adalat,
Bhandara. As can be seen from the averments made in the
application, on 10.2.2020 a First Information Report bearing
No.37/2020 was registered against the applicant for the offences
punishable under Sections 337, 338 and 304-A of the Indian Penal
Code and on 18.5.2020 a Charge-sheet was filed. It is this First
Information Report and the consequent charge-sheet which is
impugned in the present application.
5. We have heard Mr. Raju Kadu, learned counsel for the
applicant, Smt S.S. Dhote, learned Additional Public Prosecutor for
the non-applicant No.1 and Ms. Ashwini R. Ingole, learned counsel
for non-applicant No.2.
6. Learned counsel for the applicant submits that
admittedly there is a delay of 114 days in lodging the First
Information Report challenged in the present application.
According to him, the delay is unexplained and, therefore, the F.I.R.
in question is liable to be quashed. Apart from this, on merits he
submits that admittedly the applicant has been charged and he has
pleaded guilty of the offences under the Factories Act, 1948 and,
therefore, he cannot be again prosecuted under the relevant
provisions of the Indian Penal Code. He relies on judgment of the
High Court of Karnataka at Benguluru, in Criminal Petition
No.5115/2014 Mr. Ananthakumar and another Vs. State of
Karnataka and another, in which the said High Court by relying on
earlier judgment passed by the same Court in Ajit Kulkarni Vs. State
of Karnataka, bearing Criminal Petition No.9104/2009 c/w
9105/2009 has clearly stated that the applicant cannot be
prosecuted for the same offence twice, as according to the said
High Court, both the offences prescribed the same amount of
punishment and penalty.
7. Per contra, learned Additional Public Prosecutor for
the non-applicant No.1 as also the learned counsel for non-
applicant No.2 opposed the contentions advanced by the learned
counsel for the applicant state that offence under the Factories Act,
1948 and offence under the Indian Penal Code are entirely different
and only because the applicant has been prosecuted and convicted
under the offences of the Factories Act. 1948 cannot be a ground to
quash the proceeding for offences punishable under the provisions
of the Indian Penal Code.
8. We have given our thoughtful consideration to the
contentions advanced by the learned counsel for the parties and
have also perused the judgment referred by the learned counsel for
the petitioner. As can be seen from the provisions of Section 92 of
the Factories Act, 1948, it provides for general penalty for offences
and contemplates that where there is any contravention of any of
the provisions of Act or any Rules made thereunder, the occupier
and Manager of the Factory shall each be guilty of an offence and
punishable with imprisonment for a term which may extend to two
years or with fine. It would be apropos to reproduce Section 92 of
the Factories Act :
92. General penalty for offences.
Save as is otherwise expressly provided in
this Act and subject to the provisions of section 93,
if in, or in respect of, any factory there is any
contravention of any of the provisions of this Act
or of any rules made thereunder or of any order in
writing given thereunder, the occupier and
manager of the factory shall each be guilty of an
offence and punishable with imprisonment for a
term which may extend to [two years] or with fine
which may extend to [one lakh rupees] or with
both, and if the contravention is continued after
conviction, with a further fine which may extend
to [one thousand rupees] for each day on which
the contravention is so continued:
[Provided that where contravention of
any of the provisions of Chapter IV or any rule
made thereunder or under section 87 has resulted
in an accident causing death or serious bodily
injury, the fine shall not be less than [twenty-five
thousand rupees] in the case of an accident
causing death, and [five thousand rupees] in the
case of an accident causing serious bodily injury.
Explanation.--In this section and in
section 94 "serious bodily injury" means an injury
which involves, or in all probability will involve,
the permanent loss of the use of, or permanent
injury to, any limb or the permanent loss of, or
injury to, sight or hearing, or the fracture of any
bone, but shall not include, the fracture of bone or
joint (not being fracture of more than one bone or
joint) of any phalanges of the hand or foot.]"
Furthermore, Section 304A of the Indian Penal Code
reads as under:
"304A. Causing death by negligence.--Whoever
causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either
description for a term which may extend to two years,
or with fine, or with both."
It is thus clear that both the offences provide for a
punishment which may extend to two years or with fine or with
both.
9. It can be further stated that the Hon'ble Karnataka
High Court has relied upon judgment of the Hon'ble Supreme Court
in the case of T. Barai Vs. Henry AH HOE and another, reported in
(1983) 1 SCC 177. It was a case wherein a question was
regarding the applicability of Section 16-A of the Prevention of
Food Adulteration Act, 1954 as inserted by the Prevention of Food
Adulteration (Amendment) Act, 1976 i.e. Central Amendment with
respect to prosecution launched under Section 16(1)(a) read with
Section 7 of the Act in the State of West Bengal between the period
from April 29, 1974 to April 1, 1976. The precise question relevant
to the present matter as framed by the Hon'ble Apex Court was that
whether the Central Amendment Act impliedly repealed the West
Bengal Amendment Act.
The Hon'ble Apex Court after reproducing the provisions and
after discussing the Central Amendment as also the State
Amendment in para 25 stated as under :
"25. It is settled both on authority and
principle that when a later statute again describes
an offence created by an earlier statute and imposes
a different punishment, or varies the procedure, the
earlier statute is repealed by implication. In Michell
vs. Brown Lord Campbell put the matter thus:
It is well settled rule of construction
that, if a later statute again describes an offence
created by a former statute and affixes a different
punishment, varying the procedure, the earlier
statute is repealed by the later statute; see also
Smith Vs. Benabo
In Regina vs. Youle, Marin B said in the
oft-quoted passage:
If a statute deals with a particular class
of offences, and a subsequent Act is passed which
deals with precisely the same offences, and a
different punishment is imposed by the later Act, I
think that, in effect, the legislature has declared that
the new Act shall be substituted for the earlier Act.
The rule is however subject to the
limitation contained in Article 20(1) against ex post
facto law providing for a greater punishment and
has also no application where the offence described
in the later Act is not the same as in the earlier Act
i.e. when the essential ingredients of the two
offences are different."
10. In the light of dictum of the Hon'ble Supreme Court
and as followed by the Karnataka High Court in the judgment cited
supra, we are of the considered view that, both the provisions i.e.
Section 92 of the Factories Act, 1948 as also Section 304-A of the
Indian Penal Code provides for more or less the same punishment.
Furthermore, the ingredients of the offence complained of are more
or less the same. Thus, in our view and as laid down by the
Hon'ble Supreme Court in the judgment referred supra, the
prosecution under the earlier statute i.e. Section 304-A is barred by
implication when the prosecution is under the provisions of later
statute i.e. Factories Act. It is so in view of the Factories Act being
the later statute and imposing identical punishment. It is thus clear
that prosecution of the complainant under the provisions of the
Indian Penal Code would amount to double jeopardy.
11. Apart from the said fact in a recent judgment by the
Hon'ble Supreme Court in the case of Yuvraj Laxmilal Kanther and
another Vs. State of Maharashtra, reported in 2025 SCC Online SC
520, the Hon'ble Apex Court has held that for constituting an
offence under Section 304, Part II what is important is presence of
knowledge and absence of intention. The doer must have the
knowledge that the act performed by him would likely cause death,
but their should not be any intention to cause death.
12. In the light of these facts, we are of the considered
opinion that the prosecution of the complainant for the offence
punishable under Section 304, Part A falls foul of the dictum of the
Hon'ble Supreme Court in view of his conviction under Section 92
of the Indian Penal Code. We, therefore, pass the following order :
ORDER
(i) The application is allowed.
(ii) The Summary Criminal Case No.572/2020,
pending before the Judicial Magistrate, First, Class Bhandara, for
the offences punishable under Sections 337, 338 and 304-A of the
Indian Penal Code and Charge-sheet bearing No.26/2020, dated
18.5.2020 filed in pursuance of crime bearing First Information
Report No.37/2020, registered with Jawahar Nagar Police Station,
Bhandara is quashed and set aside.
(iii) The application is disposed of.
(iv) Pending applications, if any, are disposed off.
(Nandesh S. Deshpande, J.) (Urmila Joshi-Phalke, J.)
wadode
Signed by: Mr. Devendra Wadode
Designation: PS To Honourable Judge
Date: 06/11/2025 10:57:44
