Jharkhand High Court

Shivji Singh @ Guddu Singh vs The State Of Jharkhand on 25 April, 2023

                                                     1                  Cr.M.P. No. 1029 of 2014


                      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                Cr.M.P. No. 1029 of 2014
                1.   Shivji Singh @ Guddu Singh
                2.   Shambhu Sharan Sharma                      ... Petitioners
                                           -Versus-
                     The State of Jharkhand                     ... Opposite Party
                                             -----

            CORAM:          HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                             -----

            For the Petitioners        : Mr. Ashutosh Ranjan Kumar, Advocate
            For the State              : Mr. Prabhu Dayal Agarwal, S.P.P.
                                             -----

13/25.04.2023        Heard Mr. Ashutosh Ranjan Kumar, learned counsel appearing for the

petitioner and Mr. Prabhu Dayal Agarwal, learned counsel for the State.

2. This petition has been filed for quashing the entire criminal

proceeding including the order taking cognizance dated 18.09.2012 in

connection with Chowka P.S. Case No.31 of 2012, corresponding to G.R.

No.469 of 2012, pending in the court of the learned Judicial Magistrate,

1st Class at Seraikella.

3. The FIR has been lodged on the basis of the written report of the Sub

Inspector of Police, Chowka Police Station wherein it has been alleged that

the deceased labour Nirmal Singh Sardar while working in the sponge iron

of Sidhi Vinayak Metcom Ltd., sustained internal head injuries due to which

he died whereupon an U.D. Case was instituted in Chowka Police Station. In

course of investigation, it transpired that due to lack of proper safety

measures, the accident had taken place resulting to death of the deceased

labourers.

4. Learned counsel for the petitioner submits that the deceased Nirmal

Sardar was not an employee of Sidhi Vinayak Metcom Ltd. and he was

actually a contractor's labourer. He submits that the factum of the death of

the deceased was reported to the Factory Inspector vide letter dated

09.04.2012. He submits that the Factory Inspector has not initiated any

proceeding against the petitioner or the factory under the Factories Act,

alleging any breach of the provisions of the Factories Act. He submits that

the charge-sheet has been submitted against the petitioner and the learned

court has taken cognizance under Section 287, 288 and 304A of the Indian

Penal Code. He further submits that even if the entire allegation made in

the FIR taken to be true, it falls within the ambit of the provisions as

contained in Section 92 of the Factories Act, therefore, if any prosecution on

account of negligence on the part of the management of the said factory

lies, that lies under the Factories Act, which is a special legislation and as

such provision of the said Act would prevail over the general law. He relied

upon the judgment passed in Binod Kumar Das and another v. State

of Jharkhand and another; [2008(1) JCR 601 (Jhr)] and submits that

that FIR of a case under Section 304, which is covered by Section 92 of the

Factories Act is liable to be quashed because Factories Act being special

legislation shall prevail over the general law. He refers Section 4 Cr.P.C. and

submits that where there is special legislation, the general provisions of the

Indian Penal Code will not be applicable. On these grounds, he submits that

entire criminal proceeding may kindly be quashed.

5. On the other hand, learned counsel for the State submits that the

death has occurred in the factory and that is why the case has been

registered and the learned court has rightly taken cognizance.

6. In view of the above submissions of the learned counsel for the

parties, the Court has gone through the materials on record including the

contents of the FIR and intimation to the Factory Inspector, contained in

Annexure-2 of the petition and finds that admittedly the accident has

occurred in the premises of the factory and death has occurred in the

premises of the factory. The case was required to be filed under Factories

Act, 1948. In this regard, a reference may be made to the judgment passed

by the Hon'ble Supreme Court in Sharat Babu Digumarti v.

Government (NCT of Delhi); [(2017) 2 SCC 18]. Paragraphs 31, 32

and 37 of the said judgment are quoted herein below:

"31. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Sections 67-A and 67-B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal and we concur with the same.

32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.

xxx xxx xxx

37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC."

7. Identical was the situation in K.K. Sharan & Ors. v. State of

Jharkhand & another; [2005 (2) East Cr C 407 (Jhr )]. Paragraph 6 of

the said judgment is quoted herein below:

"6. On a careful scrutiny on the facts and circumstances of the case and also the submissions of the parties and legal position in this regard, it appears that petitioners have already faced the trial and they have been acquitted of the charges levelled against them. Now they have also been charge- sheeted under various sections of IPC and when there is a statutory provision for punishing the delinquent, the continuance of the case under other sections of IPC is not justified and not proper. The learned counsel for the petitioners have referred to various sections of the Act and Regulation to show that for the occurrence committed on their part, there is a provision for punishing the delinquent or so under various regulations and, therefore, the instant case should not be allowed to continue and it will amount to abuse of the process of Court. Further a man cannot be prosecuted twice or convicted twice for the. same occurrence or for the same cause of action and here petitioners have already faced criminal prosecution under various sections of Mines Act and Regulation and they have been acquitted of the charges levelled against them and further prosecution of the petitioners under these sections will be violative of the principle of natural justice."

8. On perusal of the judgment passed in Sharat Babu Digumarti (supra),

it transpires that on conclusion, it was held that the High Court has fallen

in error that although charge has not been made out under the

provisions of Information Technology Act, yet the appellant could

be proceeded under Section 292 of the Indian Penal Code. There is

no doubt that when a special legislation has been enacted having

special provisions in a specific cause of action, the same would prevail

over the general law. The FIR seems to be with respect to the death,

which was caused in the factory premises, which would attract the

penal provisions of Section 92 of the Factories Act. Section 119 of the

Factories Act deals with the overriding effect of the provision of the

Factories Act.