Himachal Pradesh High Court
Reserved On: 28.06.2025 vs State Of H.P. And Another on 9 July, 2025
2025:HHC:22032
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No.422 of 2019
.
Reserved on: 28.06.2025
Date of Decision: ___July, 2025.
Dibyendu Bera and another ...Petitioners
Versus
State of H.P. and another ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the petitioners : Mr. Neeraj Gupta, Senior
Advocate, with Mr. Harshit
Sharma, Advocate.
For the respondent/State : Mr. Lokender Kutlehria,
Additional Advocate General.
Rakesh Kainthla, Judge
The present petition has been filed for quashing of
the Complaint No.21/2019 filed before the learned Additional
Chief Judicial Magistrate, Nalagarh, District Solan, H.P. (Parties
shall hereinafter be referred to in the same manner as they are
arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present
petition are that the complainant filed a complaint before the
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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learned Trial Court for the commission of offences punishable
under Sections 62, 79, 61, 19(3), 7A (1) (2), and 66 of the
.
Factories Act, 1948 read with Rule 80, 88, 87, 79 and 43 of the
Himachal Pradesh Factories Rules, 1950. It was asserted that the
complainant- Labour Inspector carried out an inspection of the
factory on 17.10.2018 at 2.00 p.m. and found various violations.
He was authorised by the Labour Commissioner-cum Chief
Inspector of Factories, Himachal Pradesh to file a complaint
before the Court; hence, he filed a complaint before the learned
Trial Court on 11.02.2019.
3. Being aggrieved by the filing of the complaint, the
petitioners have filed the present petition for quashing of the
FIR. It has been asserted that "Fresenius" is a leading
pharmaceutical company, which develops, manufactures and
markets pharmaceutical products. It has an impeccable record
regarding the adherence to the rule of law. An inspection was
conducted on 18.02.2018 but no deviation was noticed. The same
Labour Inspector visited the plant on 17.10.2018 to carry out the
inspection and found several deviations. It was impermissible
for the same Inspecting Officer (Labour Inspector) to inspect the
same establishment twice consecutively. The inspecting unit
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was not given 15 days to report compliance. The inspection
report was not uploaded within 48 hours as per the instructions.
.
The deficiencies were not brought to the notice of the factory.
No inspection report was brought to the notice. The defects
noticed by the Inspector are not tenable. The Labour Inspector
did not follow the mandate provided under various notifications
issued by the State Government; therefore, it was prayed that
the present petition be allowed and the complaint filed before
the learned Trial Court be quashed.
4. The petition is opposed by filing a reply making a
preliminary submission regarding the lack of maintainability.
The contents of the petition were denied on merits. It was
asserted that an inspection was conducted on 17.10.2018, and
various violations were detected. A notice was issued on
20.10.2018 to rectify the violation and report compliance within
10 days. A notice was served upon the factory, but no
rectification was made. The petitioner falls within the definition
of a higher-risk industry, and the frequency of routine
inspection is once in six months. The inspection was carried out
after eight months, as per the rules. Therefore, it was prayed
that the present petition be dismissed.
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5. A rejoinder denying the contents of the reply and
affirming those of the petition was filed.
.
6. I have heard Mr. Neeraj Gupta, learned Senior
Advocate, assisted by Mr. Harshit Sharma, Advocate, learned
counsel for the petitioners, and Mr. Lokender Kutlehria, learned
Additional Advocate General, for the respondent/State.
7.
Mr. Neeraj Gupta, learned Senior Counsel for the
petitioners, submitted that the Labour Inspector violated
various notifications issued by the State Government from time
to time, and the complaint filed by the Labour Inspector is not
maintainable. The inspection was carried out on 17.10.2018, and
the complaint was filed before the learned Trial Court on
11.02.2019 after the lapse of more than three months, which is a
violation of Section 106 of the Factories Act. Therefore, he
prayed that the present petition be allowed and the complaint be
quashed.
8. Mr. Lokender Kutlehria, learned Additional Advocate
General, for the respondent/State, submitted that the violation
of the instructions issued by the Government from time to time
will not make the complaint bad, as the violation is a mere
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irregularity and not illegality. Therefore, he prayed that the
present petition be dismissed.
.
9. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. The law relating to quashing of criminal cases was
explained by the Hon'ble Supreme Court in B.N. John v. State of
U.P., 2025 SCC OnLine SC 7 as under: -
"7. As far as the quashing of criminal cases is concerned,
it is now more or less well settled as regards the
principles to be applied by the court. In this regard, one
may refer to the decision of this Court in State of
Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, wherein
this Court has summarised some of the principles under
which FIR/complaints/criminal cases could be quashed in
the following words:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise
to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
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(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety, do not prima facie constitute any offence
.
or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
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(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
.
accused and with a view to spite him due to a
private and personal grudge." (emphasis added)
8. Of the aforesaid criteria, clause no. (1), (4) and (6)
would be of relevance to us in this case.
In clause (1) it has been mentioned that where the
allegations made in the first information report or the
complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused, then
the FIR or the complaint can be quashed.
As per clause (4), where the allegations in the FIR do not
constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order dated by the Magistrate as
contemplated under Section 155 (2) of the CrPC, and in
such a situation, the FIR can be quashed.
Similarly, as provided under clause (6), if there is an
express legal bar engrafted in any of the provisions of
the CrPC or the concerned Act under which the criminal
proceedings are instituted, such proceedings can be
quashed."
11. This position was reiterated in Ajay Malik v. State of
Uttarakhand, 2025 SCC OnLine SC 185, wherein it was observed:
"8. It is well established that a High Court, in exercising
its extraordinary powers under Section 482 of the CrPC,
may issue orders to prevent the abuse of court processes
or to secure the ends of justice. These inherent powers are
neither controlled nor limited by any other statutory
provision. However, given the broad and profound
nature of this authority, the High Court must exercise it
sparingly. The conditions for invoking such powers are
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embedded within Section 482 of the CrPC itself, allowing
the High Court to act only in cases of clear
abuse of process or where intervention is essential to
uphold the ends of justice.
.
9. It is in this backdrop that this Court, over the
course of several decades, has laid down the principles
and guidelines that High Courts must follow before
quashing criminal proceedings at the threshold, thereby
pre-empting the Prosecution from building its case
before the Trial Court. The grounds for quashing, inter
alia, contemplate the following situations : (i) the
criminal complaint has been filed with mala fides; (ii) the
FIR represents an abuse of the legal process; (iii) no prima
facie offence is made out; (iv) the dispute is civil in nature;
(v.) the complaint contains vague and omnibus
allegations; and (vi) the parties are willing to settle and
compound the dispute amicably (State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335)
12. The present petition is to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
13. It was specifically mentioned in the complaint that
the complainant visited the factory premises on 17.10.2018. The
complaint was filed on 11.02.2019. Thus, the complaint was filed
after the expiry of three months from the date of the inspection.
Section 106 of the Factories Act provides a limitation of three
months for filing the complaint. It reads as under:
"106. Limitations of prosecutions. No Court shall take
cognizance of any offence punishable under this Act
unless complaint thereof made within three months of
the date on which the alleged commission of the offence
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came to the knowledge of an Inspector: Provided that
where the offence consists of disobeying a written order
made by an Inspector, complaint thereof may be made
within six months of the date on which the offence is
.
alleged to have been committed.
2 Explanation. -- For the purposes of this section, --
(a) in the case of a continuing offence, the period of
limitation shall be computed with reference to
every point of time during which the offence
continues;
(b) where for the performance of any act, time is
granted or extended on an application made by the
occupier or manager of a factory, the period of
limitation shall be computed from the date on
which the time so granted or extended expired."
14. It was laid down by Hon'ble Supreme Court in P.D.
Jambekar v. State of Gujarat, (1973) 3 SCC 524: 1973 SCC (Cri) 1088:
1973 SCC (L&S) 162: 1972 SCC OnLine SC 489, that the period of
three months prescribed under Section 106 would apply from
the date of the knowledge of the commission of the offence and
the complaint has to be filed within three months. It was
observed at page 526: -
"6. It was argued on behalf of the appellant that when the
report conveyed the information about the accident, the
Inspector should have enquired into it with reasonable
promptness and as Section 106 prescribes a period of only
three months, from the date of the knowledge of the
commission of the offence for filing a complaint the
Inspector ought not have waited for a period of 6 months
for making the inquiry. It was argued that if an Inspector
were to come to know of an accident, he cannot wait till
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such time as he chooses to make the inquiry and then say
that he came to know of the commission of an offence
under the Act as a result of the inquiry and thus postpone
at him whim the starting point of limitation. There can be
.
no doubt that if the Inspector had conducted the inquiry
earlier, he would have come to know of the commission of
the offence earlier. But our attention was not drawn to any
provision in the Act or the rules framed under the Act
which obliged the Inspector to conduct an inquiry within
any specified period after the receipt of the report into the
cause of the accident. And in interpreting a provision in a
statute prescribing a period of limitation of a proceeding,
questions of equity and hardship are out of place. See the
decisions of the privy council in Nagendra Nath v. Suresh
Chandra [AIR 1932 PC 165: ILR (1932) 60 Cal 1 (PC): 137 IC
529] and Maqbul Ahmed v. Pratap Narain [AIR 1935 PC 85:
ILR (1935) 57 All 242 (PC): 155 IC 205]. We have to go by the
clear wording of the section, and the date of knowledge of
the commission of the alleged offence alone is made the
starting point of limitation.
7. In State v. Keshavlal [AIR 1958 Bom 243: ILR 1959 Bom
358: 1958 Cr LJ 756 : (1958) 2 Lab LJ 698], Mudholkar, J.,
had to deal with a similar question. No doubt, he was
concerned with the interpretation of Section 23(2) and
Section 79 of the Mining Act, 1952. Section 79 of the
Mining Act provides:
"No Court shall take cognizance of any offence under
this Act, unless a complaint thereof has been made.
(i) * * *
(ii) within six months of the date on which the
alleged commission of the offence came to the
knowledge of the Inspector."
Section 23(2) states that when a notice given under sub-
section (1) relates to an accident causing loss of life, the
authority shall make an inquiry into the occurrence
within two months of the receipt of the notice. It was
contended on behalf of the State in that case that the
commission of the offence came to the knowledge of the
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Inspector only after the completion of the inquiry and
that the complaint, having been made within six months
of the completion of the inquiry, was within time. On the
other hand, it was contended for the accused that where
.
the knowledge of the commission of an offence was
dependent upon the result of an inquiry, such inquiry,
must necessarily be commenced within two months of the
date of intimation of accident and that the period of two
months cannot be extended by delaying the inquiry.
Dealing with the question, the learned Judge said:
"It was then said that had an inquiry been instituted
earlier, the Inspector would have come to know of the
breach in question earlier and so limitation must be
deemed to have started running from the date of the
notice of the accident or at most from the expiry of two
months of the giving of the notice. It is common
ground that the knowledge of an accident is not the
same thing as the knowledge of an "offence", that is,
of a breach which is made penal. Therefore, the date of
the notice of the accident can in no circumstances be
regarded as a starting point for the commencement of
limitation. The expiry of two months from the date of
notice cannot, for the same reason, be regarded as a
starting point of limitation."
"No doubt, had the inquiry been made earlier, the fact
of the commission of the breach or offence would have
come to the knowledge of the Inspector. But Section
79(ii) does not say that the date on which an Inspector
would or ought to have acquired knowledge of the
commission of an offence had he been diligent or had he
complied faithfully with the provision of the Act,
would also be a starting point of limitation. In the
circumstances, therefore, the delay in making the
inquiry, however irregular or deplorable, cannot affect
the question of limitation."
8. As Section 106 makes the date of knowledge of the
commission of the offence the starting point of the period
of limitation, we find it difficult to read the Section so as
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to make the date on which the Inspector would or ought to
have acquired knowledge of the commission of the
offence had he been diligent, the starting point of
limitation, especially where, as here the statute does not
.
provide for an inquiry into the accident much less the
period with which the inquiry has to be made. It is only in
the jurisprudence of Humpty Dumpty that we can equate
the "date on which the alleged offence came to the
knowledge of an Inspector" with the date on which the
alleged offence ought to have come to his knowledge. We
think that the High Court was right in its conclusion.
15. Similar view by this Court in Rajesh Pandya versus
State of H.P. in Cr.MMO No. 26 of 2014 decided on 28.04.2015,
wherein it was held: -
"2. The complaint lodged beyond a period of three
months by the complainant comprised in Annexure P-2
would render the learned Court before it had come to be
instituted incapacitated to take cognizance thereon only
in event of it having come to be substantiated at this stage
by the petitioners herein that it had come to be lodged at
the instance of a functionary/official who was empowered
as an Inspector. Only in the event of substantiating
material qua the factum of Deputy Director (Factories),
Una being empowered as an Inspector would, the
provisions of Section 106 of the Factories Act barring the
criminal Court of competent jurisdiction to take
cognizance thereon unless it is instituted within three
months from the date of acquisition of knowledge by the
Inspector qua the commission of the offence at the
instance of the petitioners herein come to the aid of the
petitioners herein to anvil a submission that hence, the
criminal Court of competent jurisdiction is barred to take
cognizance thereon."
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16. This position was reiterated in Saugata Gupta v. State
of H.P., 2019 SCC OnLine HP 1672, wherein it was observed:
.
"13. The Factories Act is a special Statute dealing with a
specific field and provides for taking cognisance of certain
offences related to the violation of the Act as well as the
Rules made thereunder, and a specific period of limitation
has been provided under Section 106 of the Act for taking
cognisance of the offences. Explanation thereto also
describes the manner in which the limitation shall be
calculated in a continuing offence. However, there is no
specific provision with regard to extension of the period
of limitation as provided under Section 473 of the Code of
Criminal Procedure (in short 'Cr. P.C'). Cr.P.C. is a Statute
general in nature and Section 4(2) of Cr.P.C., provides that
all offences under any other law shall be investigated,
inquired into, tried and otherwise dealt with according to
provisions of Cr.P.C., but subject to any enactment for the
time being in force regulating manner or place of
investigation, inquiring into, trying or otherwise dealing
with such offence. In the Factories Act, there is a specific
provision providing limitation for taking cognisance of
commission of offence, including continuing offence, but
there is no provision for extension of time of period of
limitation, corresponding to Section 473 Cr. P.C."
17. Therefore, in view of the above binding precedents,
the period of three months is mandatory, and the complaint
could not have been filed after the expiry of three months from
the inspection.
18. It was submitted that the rectification notice was
issued and the petitioners failed to comply with it; therefore, the
period of six months would apply to the present case. This
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submission is only stated to be rejected. The complaint does not
mention any offence of violation of the written order issued by
.
the Labour Inspector. Therefore, the rectification notice will not
extend the period of limitation. It was held in Saugata Gupta v.
State of H.P., 2019 SCC OnLine HP 1672, that the six-month
limitation period will apply only when the offence consists of
disobeying the written order. It was observed:
"10. Proviso to Section 106 of the Act, providing six
months' limitation for filing complaint from the date of
commission of offence shall come into force only where
offence consists of disobeying a written order made by an
Inspector and for that purpose, compliance report if any,
submitted by the offender is required to be considered,
referred and verified by the said Inspector and in case
such disobedience is found, only then, benefit of proviso
shall be available which is lacking in the present case."
19. In the present case, there is no offence of violating
the written order, and the limitation of six months will not
apply.
20. Consequently, the complaint filed before the learned
Trial Court was barred by limitation, and the learned Trial Court
could not have taken cognisance of the same; hence, the present
petition is allowed and the complaint and the consequential
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proceedings pending before the learned Trial Court are ordered
to be quashed.
.
21. The present petition stands disposed of, and so are
the pending applications, if any.
(Rakesh Kainthla)
Judge
__July, 2025
(rupsi) r
