Lal Babu Singh And Ors vs State Of Chhattisgarh And Ors
2023 Latest Caselaw 196 Chatt

                                             1

                                                                                     AFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                              WPCR No. 146 of 2014

    1. Lal Babu Singh S/o Late Mahendra Singh Aged About 52
        Years working as Senior Manager In M/s Salasar Steel &
        Power Limited Gerwani P.S. Punjipathra Tahsil And Distt.
        Raigarh Civil & Revenue Distt. Raigarh (CG)

    2. Shiva Shankar Sahu S/o Bhaskar Sahu Aged About 30 Years
        Working As Safety Officer In M/s Salasar Steel & Power
        Limited Gerwani P.S. Punjipathra Tahsil & Distt. Raigarh, Civil
        & Revenue District Raigarh (CG)

    3. Dr. Sanjiv Kumar Sinha S/o S.K. Singh Aged About 35 Years
        Working As Medical Officer In M/s Salasar Steel & Power
        Limited Gerwani P.S. Punjipathra Tahsil & Distt. Raigarh, Civil
        & Revenue, District : Raigarh (CG)

    4. Prakash Chandra Mundhra S/o Late Asharam Mundhra Aged
        About 58 Years Working As Factory Manager In M/s Salasar
        Steel & Power Limited Gerwani P.S. Punjipathra Tahsil And
        Distt. Raigarh Civil & Revenue District : Raigarh, Chhattisgarh

                                                                      ---- Petitioners

                                        Versus
    1. State of Chhattisgarh S/o Through The Collector Raigarh
        Tahsil P.S. & Distt. Raigarh (CG)
    2. The Sub Divisional Magistrate Raigarh District Raigarh (CG)
    3. Station House Officer Police Station Punjipathra District :
        Raigarh (CG)
                                                                    ---- Respondents
--------------------------------------------------------------------------------------------

For Petitioners : Mr. Awadh Tripathi, Advocate For Respondents : Ms. Meena Shastri, Additional Advocate General.

Order Reserved on 08.08.2022 Order Delivered on 11/01/2023

Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge

CAV Order

Per Parth Prateem Sahu, J

1. This is a reference made by the learned Single Judge referring

following question to answer by Division Bench:-

"Whether initiation of proceedings against the same accused under Section 304-A IPC is permissible under the law even after his conviction by learned Judicial Magistrate (Labour Court) under Section 92 of the Factories Act 1948 and whether the same amounts to double jeopardy when the offence under the Factories Act and the one under Section 304-A IPC arose out of the same incident?"

2. Facts relevant for disposal of this reference are that on

10.12.2013 one Silvanus Tirki (since deceased), was engaged

in the work of Cleaning of Drakchain Feeder for Broiler in M/s

Salasar Steel & Power Ltd. Gerwani, District Raigarh. His work

shift was from 9:30 a.m. At about 12:00 noon when he was

returning after drinking water from water cooler, he slipped and

fell down on ground and suffered head injury. He was

immediately taken to District Hospital, Raigarh where he was

declared brought dead. Complaint case was filed by the

Deputy / Assistant Director, Industrial Health & Safety-cum-

Factory Inspector for violation of provisions of Section 41 of the

Factories Act, 1948, as amended upto 1987, (for short 'the Act

of 1948') read with Rule 73 (1) of the Chhattisgarh Factories

Rules, 1962 (for short 'the Rules of 1962'), punishable under

Section 92 of the Act of 1948. Petitioner No.4 and one Krishna

Mohta admitted their guilt before the Judicial Magistrate 1st

Class and accordingly, vide order dated 5.5.2014, they were

sentenced to pay fine of Rs.70,000/- each, in default to

undergo SI for 1 month. Order passed by the Judicial

Magistrate in Case No.20/Factory Act/2014 dated 5.5.2014

was not put to challenge and amount of fine, as imposed, was

deposited by them. Legal heirs of deceased Silvanus Tirki filed

Claim Case No.28/EC Act/2014/Fatal before the

Commissioner, Employees Compensation Act, which was

allowed in part vide order dated 28.8.2014 and amount of

Rs.3,98,596/- was awarded as compensation. As recorded in

the order of reference, amount of compensation was also

deposited by the company.

3. Based on information received from Deputy Director, Industries

Health and Securities, Raigarh Division, District Magistrate

directed enquiry under Section 176 (1) of CrPC vide order

dated 20.12.2013. Deputy Collector -cum- Sub Divisional

Magistrate conducted an enquiry and submitted report to the

effect that death of deceased employee was on account of

negligence, not providing important security means during

execution of work and proposed compensation of

Rs.5,00,000/-, employment to one of family members of

deceased and registration of criminal case against petitioners

in concerned police station. Based on proposed action in

report of Sub Divisional Magistrate, Crime bearing

No.106/2014 for the offence under Section 304A of IPC was

registered against petitioners. Aggrieved by registration of FIR,

petitioners have filed this writ petition seeking following reliefs:-

"i. That, this Hon'ble Court may kindly be pleased to issue appropriate writ by quashing the impugned inquiry report dated 16.6.2014 (Annexure P/1) made by the respondent No.2.

ii. That, this Hon'ble Court may kindly be pleased to direct the respondents to completely set aside the proceeding which has been initiated on the basis of inquiry report dated 16.6.2014 made by the respondent No.2.

iii. That, any other relief which this Hon'ble Court deems fit and proper may also kindly be granted to the petitioner in the interest of justice along with costs of petition.

iv. That, the F.I.R. dated 08.05.2014 (Annexure P/4) may kindly be quashed."

4. When the matter was taken up for hearing, the learned Single

Judge taking note of Article 20 (2) of the Constitution of India;

Sections 4 & 300 (1) of CrPC; decision in case of Binod

Kumar Das & anr V. State of Jharkhand & anr, reported in

2008 (64) AIC 430 (Jharkhand High Court); R Kannan v.

State by Sub Inspector of Police Chithode Police Station

Erode District decided by Madras High Court on 26.9.2008 in

Crl. O.P. No.3749/2007 and MP No.1/2007; Rabindra

Agrawal V. State of Jharkhand & another, reported in 2011

(2) LLJ 490 Jharkhand; Binod Kumar Mittal v. State of

Jharkhand, decided by Jharkhand High Court in Cr.M.P.

No.1165/2012; Ashwani Kumar Singh & anr. Vs. State of

Jharkhand, reported in 2007 (2) JCR 334 Jhr; Kolla Veera

Raghav Rao vs. Gorantla Venkateshwara Rao and anr,

reported in 2011 AIR SCW 788, and decision of Chhattisgarh

High Court dated 28.2.2009 in Cr.M.P. No.36/2099, parties

being Feroz Alam Vs. State of C.G., observed that from the

facts it is apparent that statement of charges and description of

incident in both the cases are one and the same, and

therefore, judgment delivered in case of Feroz Alam (supra) is

required to be reconsidered by a Bench of two Judges.

5. In the case of Feroz Alam (supra), it was observed as

follows:-

"10. In the instant case, offence under Section 7A (2)

(c) of the Factories Act, 1948 read with Rule 73 of the

Chhattisgarh Factory Rules, 1962 and Section 88, 92

of the Factories Act, 1948 read with Rules 108 (1) &

108 (4) of the Chhattisgarh Factory Rules, 1962 are

mainly related to taking necessary steps for safety of

the persons employed in the factory with a view to

save them from any casualty and offence of causing

death by doing any rash and negligent act punishable

under Section of the IPC is distinct from offence under

Section 92 of the Factories Act, 1948. A person may be

tried for offence punishable under section 92 of the

Factories Act, 1948 as well as under section 304A of

the IPC separately and both the offences are not one

and the same or not based on same facts. The Court

below has rightly rejected the application for discharge

of the applicant and it has not committed any illegality

or infirmity in the order impugned."

6. Learned Single Judge, while making reference, had observed as

follows:-

16.Considering the facts and circumstances of the

case in particular the fact that both the cases arise out of the same incident dated 10.12.2013 occurred in Salasar Steel and Power Company Ltd. where one of its labourers namely Silvanus Tirki suffered head injury, this Court is of the opinion that in view of the decision of the Apex Court in Kolla Veera (supra) the petitioner No.4 cannot be prosecuted again for the offence punishable under Section 304-AIPC. From the facts it is apparent that even the statement of charges and description of incident in both the cases is one and the same.

17. Accordingly, in my considered view the judgment delivered by this Court in the case of Feroz Alam (supra) is required to be reconsidered by a Bench of two judges in view of decisions of various High Courts, provisions of Section 300 (1) Cr.P.C., Article 20 (2) of the Constitution of India, Section 26 of the General Clauses Act and most particularly the judgment of Supreme Court in the matter of Kolla Veera Raghav Rao (supra). Being so, let the matter be placed before Hon'ble the Chief Justice on administrative side as provided in Rule 32 of the High Court of Chhattisgarh Rules, 2007 for being referred to a Bench of two judges to be decided on the following point;

"Whether initiation of proceedings against the same accused under Section 304-A IPC is permissible under the law even after his conviction by learned Judicial Magistrate (Labour Court) under Section 92 of the Factories Act 1948 and whether the same

amounts to double jeopardy particularly when the offence under the Factories Act and the one under Section 304-A IPC arose out of the same incident?"

7. Learned counsel for petitioners would submit that for the same

cause of action, Factory Inspector lodged complaint and in the

case registered under the Act of 1948 fine was imposed upon

accused therein. Total fine of Rs.1,40,000/- was imposed,

which was deposited before the Court on 5.5.2014 itself. The

Sub Divisional Magistrate vide report dated 16.6.2014

proposed for registration of offence against higher officials of

the Company. Report submitted by Sub Divisional Magistrate

proposing for registration of criminal case and also for

compensation of Rs.5,00,000/- will lead to double jeopardy

against petitioners. As per Article 20 (2) of the Constitution of

India, petitioners cannot be prosecuted and punished for the

same offence twice. He submits that as the Judicial Magistrate

imposed punishment of fine of Rs.1,40,000/- against death of

workman, no further crime can be registered against

petitioners and they cannot be prosecuted. He referred to

provisions under Section 300 of CrPC and submitted that

person once convicted or acquitted, is not liable to be tried for

the same offence. Hence, continuance of criminal proceedings

pursuant to FIR registered against petitioners based on

enquiry report submitted by the Sub-Divisional Magistrate, is

sheer abuse of process of law. In support of his contention, he

relied upon decisions mentioned in the order of reference.

8. Learned Additional Advocate General for the State vehemently

opposes submissions of learned counsel for petitioners,

contending that provisions of Section 300 CrPC are not

attracted to facts of present case for the reason that violation

of provisions of Section 41 of the Act of 1948 read with Rule 73

(1) of the Rules of 1962, punishable under Section 92 of the

Act of 1948 and the offence defined under Section 304A of IPC

i.e. causing death by negligence, are two entirely separate and

distinct offences and therefore, it will not attract the principle of

double jeopardy, and separate prosecution and punishment for

such distinct offence would not be barred. She submits that if

two separate offences under two different enactments are

disclosed and established from same set of facts, then benefit

of bar under Article 20 (2) of the Constitution of India and

Section 26 of the General Clauses Act, 1897 (for short 'the Act

of 1897') is not applicable in such cases. In support of her

contention, she placed reliance on decision in cases of State

of Bombay v. S.L. Apte and another, reported in (1961) 3

SCR 107; Sangeeta Ben Mahendra Bhai Patel v. State of

Gujarat & another, reported in (2012) 7 SCC 621; order dated

11.5.2020 in Misc. Case No.45912/2018, parties being Vijay

Parekh vs. State of Madhya Pradesh.

9. Before we proceed to answer the reference, it is appropriate to

have a glance of relevant statutory provisions under the

Constitution of India; Act of 1948; CrPC; IPC and Act of 1897.

10. Section 7A of the Act of 1948 prescribes general duties of the

occupier, which reads thus:-

"7A. General duties of the occupier.-- (1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.

(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include--

(a) the provision and maintenance of plant and systems of work in the factory that are safe and without risks to health;

(b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c) the provisions of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work;

(d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks;

(e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work. (3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed.]"

11. Section 92 of the Act of 1948 prescribes general penalty for

violation of any of the provisions of the Act of 1948 or of any

rules made thereunder. Section 92 is reproduced below;-

"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.]

12. Rule 73 of the Rules of 1962 prescribed for making available

protective appliances to the workers at work place and the

same is extracted below for ready reference:-

"73.Protective appliances.-(1) Suitable protecting devices such as tight fitting clothes, foot-wears, gloves, finger guards, goggles, head gears, life-belts,

scaffoldings, non-skid ladders, respirators, gas masks, etc. shall be maintained and used on all such process which are likely to cause injuries to workers, if not used.

(2) All personal protective appliances provided to the workers as required under any of the provisions of the Act or the rules shall have certification of ISI."

13. Section 300 of CrPC envisaged that if a person is convicted or

acquitted in respect of offence, he cannot be tried again. Sub-

section (1) of Section 300 CrPC is relevant and same is

extracted below;-

"(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof."

14. Section 4 of CrPC relates to trial of offences under the Indian

Penal Code and other laws, which reads as under:-

"4. Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

15. Article 20 of the Constitution of India provides protection in

respect of conviction for offences and clause (2) of Article 20

envisages that no person can be prosecuted and punished for

the same offence more than once. Clause (2) of Article 20 of

Constitution is extracted below for ready reference:-

"(2) No person shall be prosecuted and punished for the same offence more than once

From perusal of Article 20 (2) of the Constitution of India and

Section 300 (1) CrPC, it is explicitly clear that key words used

in this clause are 'same offence'.

16. The question for consideration before this Court is whether

prosecution of petitioners under two different enactments on

the same set of facts attracts principles of double jeopardy.

The rule against double jeopardy provides foundation for the

pleas of autrefois acquit and autrefois convict.

17. In the case of Maqbool Hussain v. State of Bombay,

reported in AIR 1953 SC 325, after taking action against a

person found in possession of gold in contravention of relevant

notifications prohibiting import of gold and its confiscation,

criminal prosecution was launched against him under Foreign

Exchange Regulation Act and in these circumstances, plea of

autrefois convict was raised seeking protection under Article 20

(2) of the Constitution of India. In this situation, Hon'ble

Supreme Court has held thus:-

"7.The fundamental right which is guaranteed in Article 20 (2) enunciates the principle of "autrefois convict" or

"double jeopardy". The roots of that principle are to be

found in the well established rule of the common law

of England "that where a person has been convicted of

an offence by a court of competent jurisdiction the

conviction is a bar to all further criminal proceedings

for the same offence." (Per Charles J. in Beg. v. Miles

(1). To the same effect is the ancient maxim "Nemo bis

debet punire pro uno delicto", that is to say that no

one ought to be twice punished for one offence or as it

is sometimes written "pro eadem causa", that is, for

the same cause.

8. This is the principle on which the party pursued has

available to him the plea of autrefois convict" or

"autrefois acquit".

The question for the jury on the issue is whether the

defendant has previously been in jeopardy in respect

of the charge on which he is arraigned, for the rule of

law is that a person must not be put in peril twice for

the same offence. The test is whether the former

offence and the offence now charged have the same

ingredients in the sense that the facts constituting the

one are sufficient to justify a conviction of the other,

not that the facts relied on by the Crown are the same

in the two trials. A plea of 'autrefois acquit'is not

proved unless it is shown that the verdict of acquittal

of the previous charge necessarily involves an

acquittal of the latter." (Vide Halsbury's Laws of

England, Hailsham Edition, Vol. 9, pages 152 and 153,

paragraph 212).

9. This principle found recognition in Section 26 of the

General Clauses Act, 1897,-

"where an act or omission constitutes an offence

under two or more enactments, then the offender

shall be liable to be prosecuted and punished

under either or any of those enactments but shall

not be liable to be punished twice for the same

offence,"

and also in Section 403 (1) of Criminal Procedure Code, 1898,-

"A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237."

xxxxxx

11.These were the materials which formed the

background of the guarantee of fundamental right

given in Article 20 (2). It incorporated within its scope

the plea of "autrefois convict" as known to the British

jurisprudence or the plea of double jeopardy as known

to the American Constitution but circumscribed it by

providing that there should be not only a prosecution

but also a punishment in the first instance in order to

operate as a bar to a second prosecution and

punishment for the same offence."

18. In the case of S.A. Venkataraman v. Union of India, reported

in AIR 1954 SC 375, Hon'ble Supreme Court explained scope

of doctrine of double jeopardy, observing that in order to attract

the provisions of Article 20 (2) of the Constitution, there must

have been both prosecution and punishment in respect of the

same offence.

19. In the case of Leo Roy Frey v. Supt. District Jail, reported in

AIR 1958 SC 119, Hon'ble Supreme Court while considering

challenge to prosecution under Section 120B of IPC after

imposition of penalties under Section 167 (8) of the Sea

Customs Act by the Custom Authorities, observed that offence

under Section 120B of IPC is not the same offence as that

under Sea Customs Act, and held thus:-

"4..... The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences."

20. The Constitution Bench of Hon'ble Supreme Court while

dealing with issue of double jeopardy under Article 20 (2) of the

Constitution, observed that second prosecution and

consequential punishment must be for 'same offence', they

should be identical and therefore, necessary to analyze and

compare not the allegations in two complaints but the

ingredients of two offences, and held thus;-

"16. The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to 'the act or commission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence'. If the offences are not the same but are

distinct, the ban imposed by this provision also cannot be invoked."

21. In the case of Union of India v. P.D. Yadav, reported in (2002)

1 SCC 405, Hon'ble Supreme Court while dealing with issue of

double jeopardy held as under:-

"25...... This principle is embodied in the well-known maxim nemo debet bis vexari, (si constat curiae quod sit) pro una et eadem causa, meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others. Article 20 (2) expressly provides that "No one shall be prosecuted and punished for the same offence more than once." Offences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise for prosecution on criminal side and also for action in civil court/other forum for recovery of money by way of damages etc., unless there is a bar created by law. In the proceedings before General Court Martial, a person is tried for an offence of misconduct and whereas in passing order under Regulation 16(a) for forfeiting pension, a person is not tried for the same offence of misconduct after the punishment is imposed for a proved misconduct by General Court Martial resulting in cashiering, dismissing or removing from service. Only further action is taken under Regulation 16(a) in relation to forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making

order under Regulation 16 (a) are entirely different. Hence, there is no question of applying principle of double jeopardy to the present cases."

22. In State of Rajasthan v. Hat Singh, reported in (2003) 2 SCC

152, point for consideration was whether prosecution and

punishment for the offence under Section 5 of the Rajasthan

Sati (Prevention) Ordinance 1987 [later repealed by Rajasthan

Sati (Prevention) Act, 1987], is violative of Article 20 (2) of the

Constitution or the rule against double jeopardy, and Hon'ble

Supreme Court held thus;-

"13. The gist of the offence under Section 5 is the commission of an act, which amounts to glorification of Sati. It is the commission of act by itself, which is made punishable on account of the same having been declared and defined as an offence by Section 5 of the Ordinance/Act. The gist of the offence under Section 6 of the Ordinance/Act is the contravention of the prohibitory order issued by the Collector and District Magistrate. Section 5 punishes the glorification of Sati. Section 6 punishes the contravention of prohibitory order issued by the Collector and District Magistrate, which is a punishment for the defiance of the lawful authority of the State to enforce law and order in the society.

What is punished under Section 5 is the criminal intention for glorification of sati; what is punishable under Section 6 is the criminal intention to violate or defy the prohibitory order issued by the lawful authority. We do not agree

with the High Court that the ingredients of the offences contemplated by Section 5 and Section 6(3) are the same or that they necessarily and in all cases overlap or that prosecution and punishment for the offences under Sections 5 and 6 (3 both are violative of Article 20(2) of the Constitution or of the rule against double jeopardy.

14. We are, therefore, of the opinion that in a given case, same set of facts may give rise to an offence punishable under Section 5 and Section 6 (3) both. There is nothing unconstitutional or illegal about it. So also an act which is alleged to be an offence under Section 6(3) of the Act and if for any reason prosecution u/s 6 (3) does not end in conviction, if the ingredients of offence under Section 5 are made out, may still be liable to be punished under Section 5 of the Act. We, therefore, do not agree with the High Court to the extent to which it has been held that once a prohibitory order under sub- section (1) or (2) has been issued, then a criminal act done after the promulgation of the prohibitory order can be punished only under Section 6 (3) and in spite of prosecution u/s 6(3) failing, on the same set of facts the person proceeded against cannot be held punishable u/s 5 of the Act although the ingredients of Section 5 are fully made out."

23. The law laid down in the aforementioned decisions of Hon'ble

Supreme Court is that in order to attract provisions of Article 20

(2) of the Constitution of India i.e. doctrine of double jeopardy,

or Section 300 CrPC, the ingredients of offence in earlier case

as well as in later case must be same and not different. Motive

for committing offence cannot be termed as ingredient of

offence to determine the issue. In the case at hand, undisputed

facts are that the Deputy/Assistant Director, Industrial and

Health Security & Factory Inspector filed complaint before the

Court of Judicial Magistrate 1st Class/ Labour Court, Raigarh

for violation of provisions under Section 41 of the Act of 1948

read with Rule 73 (1) of the Rules of 1962, punishable under

Section 92 of the Act of 1948. Whereas, the Enquiry Officer

(SDM) proposed for registration of crime due to negligence on

the part of petitioners herein in not providing necessary

protecting devices to workers which resulted in death of

deceased workman, based upon which FIR against petitioners

is registered under Section 304A of IPC. The Judicial

Magistrate while dealing with case registered on complaint

under the Act of 1948 had concluded that deceased workman

was not provided necessary protective appliances/equipments,

which amounts to contravention of Section 7A (1) of the Act of

1948, punishable under Section 92 of the Act of 1948. Rule 73

of the Rules of 1962 talks about providing protective

appliances to the workers with ISI certification. Section 304A of

IPC talks of causing death by negligence. From the definition

under Section 304 of IPC it is apparent that provisions of

Section 304A applies to such acts which are rash and

negligent and direct cause for death which does not amount to

culpable homicide.Ingredients of offence under Section 304A

IPC are as under:-

" i. causing death.

ii. by a rash and negligent act."

Ingredients of the cases registered against petitioners based

on complaint under the Act of 1948 and Section 304A of IPC,

in the opinion of this Court, are not one and same. The

offences under both the statutes are not same, therefore,

prosecution of petitioners under Section 304A of IPC after

imposing sentence of fine under the Act of 1948, does not

attract provisions of Article 20 (2) of the Constitution of India.

24. In the case of Sangeetaben Mahendrabhai Patel (supra),

quashment of criminal proceeding was sought on the plea of

double jeopardy for the reason that appellant has already been

tried and dealt with under provisions of Section 138 of the

Negotiable Instruments Act, 1881 and therefore, prosecution

under Section 420 of IPC is not permissible. In such

circumstance, Hon'ble Supreme Court after discussing its

earlier decisions on issue, held thus:-

"33. In Hira Lal Hari Lal Bhagwati v CBI, AIR 2003 SC 2545, this Court while considering the case for quashing the criminal prosecution for evading the customs duty, where the matter stood settled under the Kar Vivad Samadhan Scheme 1988, observed that once the tax matter was settled under the said Scheme, the offence stood compounded, and

prosecution for evasion of duty, in such a circumstance, would amount to double jeopardy."

In the case of Sangeetaben Mahendrabhai (supra), issue as

to whether ingredients of both the offences were same had

neither been raised nor decided and therefore, ratio of

aforementioned decision does not apply to the facts of present

case. Hon'ble Supreme Court, considering its earlier decisions

in G. Sagar Suri v. State of U.P., reported in (2000) 2 SCC

636 and Kolla Veera Raghav Rao (supra), which was also

taken note by learned Single Judge in order of reference, has

held as under:-

"35. The learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri & Anr. v. State of UP & ors, (2000) 2 SCC 636, wherein during the pendency of the proceedings under Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case.

36. Same remained the position so far as the judgment in Kolla Veera Raghav Rao v.

Gorantala Venkateswara Rao & anr, (2011) 2 SCC 703, is concerned. It has been held therein that once the conviction under Section 138of N.I.

Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20 (2) of the Constitution and Section 300 (1) Cr.P.C."

25. In the case of Kolla Veera Raghav Rao (supra), appellant

was tried and convicted earlier under Section 138 of the Act of

1881 and thereafter he was again tried for the offence under

Section 420 of IPC. In aforesaid facts, a two Judges Bench of

Hon'ble Supreme Court, taking note of Section 300 (1) CrPC,

has held that as Section 300 (1) CrPC is wider than that of

Article 20 (2) of the Constitution of India and provide not only

for same offence but even for a different offence but on the

same facs, and allowed the appeal. This issue was again

considered by Bench of two Judges in case of Sangeetaben

Mahendrabhai (supra) and taking note of decision in Kolla

Veera Raghav Rao (supra), it was held that for attracting

provisions of Article 20 (2) of the Constitution or Section 300

CrPC or Section 71 of IPC or Section 26 of General Clauses

Act, the ingredients of offence under earlier case as well as in

later case must be same and not different. It is not the

allegations but identity of ingredients of offence is relevant.

26. From the above discussion, it is clear that the law is well

settled that in order to attract provisions of Article 20 (2) of the

Constitution of India or Section 300 of CrPC or Section 26 of

the General Clauses Act, the ingredients of offence in earlier

case and later case must be one and same. To ascertain

whether two offences are same or not, identity of ingredients of

offence is to be seen and not identity of allegations. As

discussed above, ingredients of offence under the Act of 1948

and that of under Section 304A of IPC are different.

27. For the foregoing reasons, we are of the view that view taken

by learned Single Judge in case of Feroz Alam (supra) is

correct one. Reference is answered accordingly. The case be

placed before the learned Single Judge for further proceedings

in accordance with law.

                    Sd/-                                    Sd/-
           (Arup Kumar Goswami)                     (Parth Prateem Sahu)
               Chief Justice                              Judge
roshan/-