Sri Hari Kriahna Budhia @ ... vs The State Of Jharkhand And Another
2023 Latest Caselaw 1968 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2625 of 2013

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Sri Hari Kriahna Budhia @ H.K.Budhiya and Anr. .... Petitioners

-- Versus --

The State of Jharkhand and Another .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Petitioners        :-    Mr. Amitabh, Advocate

       For the State              :-    Mr. V. Pradhan, Advocate

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10/08.05.2023       Heard Mr.Amitabh the learned counsel for the petitioner and

      Mr. V.Pradhan the learned State counsel.

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

proceeding in connection with No.G-80/13 as well as order taking

cognizance dated 16.7.2013, pending in the court of learned Sub

Divisional Judicial Magistrate, Hazaribagh.

3. The complaint case has been filed alleging therein that on

23.4.2013 at 11.30 p.m. an accident took place in which one Bishu Mahto

died. After completion his shift while returning to house, he was crossing

Magnetic Over Head Crane then suddenly hot pig iron fell down on his

chest and he died on spot. It is alleged that occupier and manager had

failed to ensure provisions for maintenance of plant and system of work

in the factory thereby violating section 7-A(2)(c) & (d) of Factories Act

1948 and Rules 55 -A (2) of the Jharkhand Factories Rules, 1950.

4. Mr. Amitabh the learned counsel appearing for the

petitioner submits that the petitioners are the occupier and manager of

Bihar Foundry and Casting Limited and they have been made accused in

this petition. He submits that accident took place in the factory premises

as one hot pig iron fell down on the chest of contract labourer namely

Bishnu Mahto from the magnetic crane and he died on the spot. He

submits that is why by way of making allegation that proper safety

measure was not provided by the company thus, these petitioners have

been made accused for violating the said provisions under the said rules

of the Factories Rules. He further submits that there is no averment that

these petitioners are responsible for such negligence and the company is

not made the party. He submits that in absence of the company being

made the party vicarious liability cannot be fastened against these

petitioners who are the officials of the company. He submits that Rupees

Four Lacs has been paid to the family members of the deceased. He also

draws the attention of this Court towards Sections 97 and 111 of the

Factories Act and by way of referring aforesaid sections, he submits that

the liability and inquiry was required to be looked into in the light of

Sections 97 and 111 of the Factories Act

5. Learned counsel appearing for the petitioners relied upon

the judgments rendered in the case of Sarav Investment and Financial

Consultancy (P) Ltd. Versus Lloyds Register of Shipping Indian Office

Staff Provident Fund, reported in (2007) 14 SCC 753 and also in the

case of Visitor AMU and Ors. Versus K.S. Misra, reported in (2007) 8

SCC 593, wherein in para-13, the Hon'ble Supreme Court has held as

follows:-

―13. The problem can be looked from another angle. If the view taken by the High Court that the provision is directory is accepted as correct, it would in effect amount to making the provisions of sub- clause (c) of Statute 61(6)(iv) otiose. In such a case the consequences provided therein that if no option is exercised within the prescribed time limit, the employee shall be deemed to have opted for the retention of the benefits already received by him would never come into play. It is well settled principle of interpretation of statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the

language, which will render a part of the statute devoid of any meaning or application. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intent is that every part of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the staute. (See Principles of Statutory Interpretation by Justice G.P. Singh Ninth Edition page 68)‖

6. The learned counsel for the respondent State submits that

violation of the provisions have been found as the safety was not

provided and in that background, the complaint case has been filed and

the learned court has rightly been taken cognizance under section 92 of

the Factories Act, 1948.

7. In view of the above submission of the learned counsel

appearing for the parties the Court has gone through the materials on

record and finds that admittedly the said accident has been taken place

within the premises and one hot pig iron fell on the body of the said

labourer and he died on the spot.

8. Rule 55(A(2) of the Bihar (now Jharkhand) Factories Rules,

1950 reads as follows:-

―55A. General safety of buildings, structures, plants, machinery, etc. - (1) No building, wall, chimney, bridge, tunnel, drain, road gallery, passage, walkway or gageway, ladder, stair-case, ramp floor, platform, staging, scaffolding or any other structure of bricks, masonary, cement, concrete, steel or any other material whether of a permanent or temporary character shall be constructed, situated, maintained or allowed to remain or be used in a factory and no machine, plant, equipment including electric

lines, wiring, fitting and apparatus [apparatus as defined in clause (c) of rule 2 of the Indian Electricity Rules, 1956 made under the Indian Electricity Act, 1910], shall be constructed, provided, situated, maintained or allowed to be used or operated in a factory, in such manner as may, or is likely to, cause any accident or any bodily injury. (2) No process or work shall be carried on in any factory and no person shall be allowed to work on any process or any machinery, plant or equipment or in any part of a factory or in any other work in such manner as may, or is likely to cause any accident or any bodily injury. (3) No materials, articles or equipments shall be kept stacked or stored in such manner as may or is likely to cause any accident or any bodily injury. ―

9. On perusal of the said rule it is crystal clear that the

process of any work, which was permitted to be carried out in a manner

as may, or is likely to, cause any accident or any bodily injury. The duty

of the Inspector has been disclosed in sub-Section-9 read with Section

88 of the Factories Act.

10. In the case in hand, the Inspector of Factories alleged that

the occurrence took place due to fall of hot iron pig on the body of the

said labourer. Sections 97 and 111 of the Factories Act also provides

about the offence by the workers and obligations of the workers, which

are quoted hereunder:-

―97. Offences by workers.-- (1) Subject to the provisions of section 111, if any worker employed in a factory contravenes any provision of this Act or any rules or orders made thereunder, imposing any duty or liability on workers, he shall be punishable with fine which may extend to 1[five hundred rupees]. (2) Where a worker is convicted of an offence punishable under sub-section (1) the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention.

111. Obligations of workers.--(1) No worker in a factory-- (a) shall wilfully interfere with or misuse any appliance, convenience or other thing provided in a factory for the purposes of securing the health, safety or welfare of the workers therein; (b) shall wilfully and without reasonable cause do anything likely to endanger himself or others; and (c) shall wilfully neglect to make use of any appliance or other thing provided in the factory for the purposes of securing the health or safety of the workers therein. (2) If any worker employed in a factory contravenes any of the provisions of this section or of any rule or order made thereunder, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both.‖

11. From a bare reading of these two provisions of the

Factories Act, it is crystal clear that the scheme of the Factories Act is

there, at the first instance the occupier and Manager must be

prosecuted in terms of Section 92 of the Act, however, they may seek

exemption under Section 101 of the said Act. Such interpretation would

render the provisions of Sections 97 and 111 of the Act invalid. It is well

settled principle of interpretation of the statute that it is incumbent upon

the Court to avoid a construction, if reasonably permissible on the

language, which will render a part of the statute devoid of any meaning

or application, which has been considered by the Hon'ble Supreme Court

in the case of Visitors AMU and Ors. (Supra).

12. There is no specific violation of any provision of the Act or

the Rules in the complaint and in absence of such illegal act or omission

to fasten the Occupier and Manager on the strength of the alleged

contravention of the general duties would be a dangerous proposition of

law.

13. On perusal of the complaint, it transpires that there is no

material on record to prima facie suggest that the Occupier or Manager

are in any manner responsible for the unfortunate accident. Sections 97

and 111 was not looked into by the Inspector, as admitted in the

complaint itself that the workman concern was passing through. No case

is made out against the petitioners in terms of the Factories Act as

mens rea is not the necessity in invoking the provisions of Factories Act.

Further, Sections 97 and 111 have been ignored by the Inspector of the

Factories while submitting the report and at the time of filing the

complaint.

14. In view of the above facts and the reasons and analysis,

entire criminal proceeding in connection with No.G-80/13 as well as

order taking cognizance dated 16.7.2013, pending in the court of

learned Sub Divisional Judicial Magistrate, Hazaribagh is quashed.

15. Cr.M.P. No. 2625 of 2013 stands allowed and disposed of.

16. Pending petition if any also stands disposed of.

( Sanjay Kumar Dwivedi, J.) SI/,,