Karnataka High Court

State Of Karnataka vs Sharad Agarwal on 4 January, 2023

Bench: P.N.Desai

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                                                             CRL.A No. 1240 of 2012




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 4TH DAY OF JANUARY, 2023

                                                 BEFORE
                                  THE HON'BLE MR JUSTICE P.N.DESAI
                                  CRIMINAL APPEAL NO.1240 OF 2012
                      BETWEEN:

                      STATE OF KARNATAKA,
                      REPRESENTED BY
                      ASSISTANT DIRECTOR
                      OF FACTORIES,
                      BANGALORE.

                                                                         ...APPELLANT

                      (BY SMT. K.P. YASHODHA, HCGP)

                      AND:
Digitally signed by
NAGARATHNA M
Location: HIGH        SHARAD AGARWAL,
COURT OF
KARNATAKA             OCCUPIER/MANAGER,
                      M/S.MALUR TUBES PRIVATE LTD,
                      PLOT NO.57, KIADB INDUSTRIAL AREA,
                      MALUR,
                      KOLAR DISTRICT-563 114.

                                                                       ...RESPONDENT

                      (BY SRI. SRINATHA B.V., ADVOCATE FOR
                          SRI. M.R. NANJUNDA GOWDA, ADVOCATE)

                             THIS APPEAL IS FILED U/S.378(1)&(3) CR.P.C BY THE
                      STATE P.P. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
                      JUDGEMENT AND ORDER DT. 09.12.2011 PASSED BY THE PRL.
                      C.J. (JR. DN.) & JMFC, MALUR C/C II ADDL. C.J. (JR. DN.) & JMFC,
                      MALUR        IN     C.C.NO.537/2006       ACQUITTING         THE
                      RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
                      SECTION 92 OF THE FACTORIES ACT AND THE ORDER DATED
                               -2-
                                    CRL.A No. 1240 of 2012




30.07.2012 PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
KOLAR C/C I ADDL. S.J., KOLAR IN CRL.A.NO.26/2012.


    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal arises out of the judgment of acquittal

dated 09.12.2011 passed in C.C. No.537/2006 by the

II Additional Civil Judge (Jr.Dn.) and JMFC at Malur,

whereby the learned JMFC acquitted the accused for the

offences punishable under Section 92 of the Factories

Act, 1948. Against the judgment of acquittal, the State

has preferred the appeal in Crl.A.No.26/2012 before the

I Additional Sessions Judge, at Kolar, whereby the

learned Sessions Judge vide order dated 30.07.2012

has dismissed the appeal as not maintainable, in view of

Section 378(1)(a) of Code of Criminal Procedure (for

short hereinafter referred to as 'Cr.P.C.,').

2. It is the contention of the prosecution that

the respondent/Corporation - M/s. Malur Tubes Private

CRL.A No. 1240 of 2012

Limited, is situated at Malur, Kolar District. It is further

contended that on 12.04.2006 at about 02:30 p.m. two

contract workers by name Kannan and Narayan Singh

met with an accident while working on the straightening

machine installed in the premises of the factory of the

accused-respondent/Corporation. On the date of

incident, the right hand index finger and thumb of

Narayansingh were caught in between the machine and

he sustained serious crush injuries and Kannan

sustained crush injuries over his right hand fingers and

they were immediately taken to the hospital. The said

workers were working in the factory of the

respondent/accused since 10.4.2006 under contractor.

Then the Assistant Director of Factories had visited the

factory and found that there is some contravention of

Factories Act and Rules by the respondent/accused and

he has not provided any safeguards to the workers. He

also found that the respondent/accused has not taken

CRL.A No. 1240 of 2012

permission to carry out installation of new welding plant

and thereby contravened the Factories Act and Rules.

The Assistant Director of Factories has stated that at the

time of investigation, he has observed that the

straightening machine was not properly fenced by

safeguards and the respondent/accused had not

submitted the intimation of the accident to the

complainant within 24 hours of the accident. Hence, he

lodged a complaint under Section 200 of Cr.P.C.

Thereafter, the learned JMFC took cognizance and

issued summons to the accused.

3. In order to prove its case, the prosecution in

all examined six witnesses as PWs.1 to 6 and got

marked twelve documents as per Exs.P1 to P12.

Recorded the statement of accused under Section 313

of Cr.P.C. The respondent/accused, neither examined

any witnesses nor produced any documents. After

hearing the arguments, the learned JMFC acquitted the

CRL.A No. 1240 of 2012

accused. Aggrieved by the same, the State has

preferred this appeal.

4. Heard Smt. K.P.Yashodha, learned High

Court Government Pleader for appellant/State and Sri.

Srinath B.V., learned counsel appearing for Sri.

M.R.Nanjunda Gowda for the respondent.

5. Learned HCGP argued that the judgment of

acquittal passed by the learned JMFC is contrary to the

law and facts. The learned JMFC has not properly

appreciated the evidence of PW.1/M.A.Somashekar - the

Assistant Director of Factories who visited the factory

premises and found that the respondent/accused

violated the provisions of Factories Act and Rules.

Learned HCGP further argued that the

respondent/accused did not intimate the complainant

about the accident and no documents were maintained

as required under the Factory Rules, in the Factory. The

learned JMFC without appreciating the said facts and

CRL.A No. 1240 of 2012

without considering the documentary evidence produced

by the complainant/the Assistant Director of Factories,

acquitted the accused. Learned HCGP further contended

that both PWs.2 and 3 who are the injured witnesses

have stated about the injuries sustained by them and

they have also stated that the owner of the Factory had

not taken safety measures when the accident took place

and the said aspect has not been considered by the

learned JMFC. PW.6-Doctor who has treated PWs.2 and

3/injured and issued wound certificate as per Exs.P11

and P12. Learned HCGP also contended that the learned

Sessions Judge has wrongly dismissed the appeal

holding that the appeal is maintainable before the High

Court. Hence, with these main arguments, learned

HCGP prayed to allowed the appeal.

6. Against this, learned counsel for the

respondent/accused argued that the learned JMFC has

appreciated the evidence placed before the Court in

CRL.A No. 1240 of 2012

proper perspective and also considered the material on

record and found that the respondent/accused has

complied with the Factory Rules and there is no

violation of any Factories Rules. The learned JMFC has

considered the reply of the respondent/accused which is

submitted in compliance with the show-cause notice

issued by the Assistant Director of Factories and has

rightly come to the conclusion that the complainant has

failed to prove the guilt of the accused beyond all

reasonable doubt and acquitted the accused and there

is no need to interfere with the impugned judgment of

acquittal.

7. I have perused the records and also the

judgment of the Trial Court.

8. Learned trial Judge has framed two points for

consideration and after discussing the evidence of the

complainant, the injured and the Doctor has come to

CRL.A No. 1240 of 2012

the conclusion that the prosecution has failed to prove

beyond all reasonable doubt about the burden cast on

the accused. The prosecution has failed to prove that

the accused has not maintained the records and not

provided safety measures. CW3-Kannan and CW-4-

Narayana Singh have also stated that their work is only

to supply steel rolls to the workers of the factory. There

is no material to show that there was any instructions to

CW-3 and CW-4 to work on the area. The complainant

has not recorded the statements also. Therefore, the

contention cannot be believed. The Trial Court also

found from the medical records that the cause of injury

is not stated in the wound certificates Ex-P11 and P12.

So there is no evidence under what circumstances, the

workers sustained injuries. The Trial Court also found

that, to the show-cause notice of the complainant, the

respondent has replied. Said notice answers all queries

and they have also produced blueprint plan for the

CRL.A No. 1240 of 2012

proposed construction. Thereafter, no such reply to

query were denied, but straightaway a complaint came

to be lodged. Hence, the trial court has acquitted the

accused.

9. From the above the following points arise for

my consideration:

1) Whether the Judgment of acquittal passed by Trial Court is perverse, erroneous and illegal hence need interference by this Appellate Court?

2) What order?

10. I have perused the records.

11. PW-1 M.A. Somasekar is the complainant and

he has lodged a written complaint as per Ex-P1. PW-1

Asst. Director of Factories, Bangalore Division,

Bangalore has reiterated his complaint averment in his

examination-in-chief. It appears only on the basis of the

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CRL.A No. 1240 of 2012

Karnataka Workers Union's request, the complainant

visited the factory premises. He has enquired the

witnesses and he has stated about the violation of the

rules. It is also evident from his examination that the

injured was taken to Kolar Accident and Trauma Centre

and it is the management which has admitted them to

the hospital. It is also evident that the fingers of the

said workers viz., Sri. Kannan and Narayan Singh

caught in the middle of the said rolls and according to

the complainant, no safety measures were taken. How

he came to know about this incident is not forthcoming.

He has also admitted he has not mentioned in the

complaint that he has rejected the reply given by the

accused as per Ex- P8. He has also stated that the

company has furnished the records regarding how many

workers are working in the said factory. But he has

stated that the contract workers list is not given. Such

contention does not hold good, because, contract

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CRL.A No. 1240 of 2012

workers are not permanent workers and not working in

the factory and they may be sent on contract work as

and when requirement arises. They will go on changing

the workers. He has also stated he has not met the

injured and enquired them and only he has taken the

statement of the contractor. So on what basis, the

accident has occurred and whether it has occurred due

to the negligence of either the manager or the occupier

of the factory is not forthcoming. He has clearly

admitted that he has neither seen the incident nor he

has enquired PW-2 and 3 in this regard. He has also

expressed his ignorance as to what work CW-3 and CW-

4 was given on the date of the incident. He has also

admitted that CW-3 and 4 are not expertise workers. On

what basis, he is deposing about violation of rules is not

forthcoming. He simply goes on denying the suggestion,

but on what basis he has filed the complaint is not

forthcoming.

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CRL.A No. 1240 of 2012

12. PW-2-Kannan who is one of the injured has

stated that his finger got cut while putting iron to the

rolling machine. Nowhere he has stated he was not

provided safety measure and he has admitted he is not

permanent worker and he has also admitted it is only

permanent workers who will do such work. He has also

stated that he has no such expertise. He has stated that

his work is only to take sheets and hand over them to

the workers working on the said machines. Therefore,

when it is not his work, why he tried to put iron sheets

to the iron rolls is not forthcoming and who has

entrusted the said work is not forthcoming and

according to him, one Radha Krishna, Contractor had

asked him to come to the factory and he do not know

where is the said Contractor, under whom he is

working. He has clearly stated that neither the accused

nor the Malur Tubes factory had called him for any

work. He has also stated that there is no such written

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CRL.A No. 1240 of 2012

order to work on the said machines. He has clearly

stated that PW-1 has never consulted him nor enquired

him nor has spoken to him about accident and he has

stated that there are no records to show that he has

worked on the said day.

        13.    Similar     is      the       evidence      of   PW-3-

Narayanasingh.       His        cross-examination       reveals    that

there    are    permanent         workers      to   look   after   said

machines. He has also stated he was doing loading and

unloading work in the lorry and his contractor has sent

him for the said work and he has no expertise in the

said work. He has clearly stated that accused has never

informed him to do a particular work in the said factory.

He has also clearly stated that PW-1 complainant Asst.

Director of factories has not enquired him as to how the

accident occurred.

14. PW-4 Devaraj is the Trade Unionist at whose

instance, this complaint came to be lodged. He has

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CRL.A No. 1240 of 2012

clearly admitted CW- 2 and CW-3 gave him the

complaint and based on the same, he informed through

the Union to the Inspector of Factories and accordingly

the Inspector investigated the matter and lodged the

complaint. His evidence will not help the prosecution.

15. PW-5 Radha Krishna. According to him, he

has seen the accused in the said factory. He has clearly

admitted that PW-3-Kannan and PW-4-Narayana Singh

are residents of KGF. He has sent them to the factory of

the accused only to assist the expert workers. He has

clearly stated when he visited the hospital, PW-3 and 4

never informed him as to how they sustained injury. So

his evidence will not support the prosecution.

16. PW-6 Dr. P.V. Manohar, an Orthpaedic has

issued wound certificate as per Ex- P11 and P12 in

respect of injured/workers. He has also stated that since

the injured Kannan and Narayana Singh had taken

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CRL.A No. 1240 of 2012

treatment under him, he has issued Ex-P11 and P12-

Out patient Slips.

17. On perusing the entire evidence of the

prosecution, both oral and documentary evidence, it is

evident that the complaint is lodged without making any

enquiry and without enquiring the injured nor he has

visited the factory premises. Even the wound certificates

also does not support that any such incident had taken

place. Even after issuance of the reply to the show-

cause notice, no further query was made nor in the

complaint, it is stated the reply given by the accused

company is not satisfactory one. Absolutely no material

is produced to show violation of the Factory Act or

Rules, as alleged by the complainant. Even Ex-P11 and

P12 are only out patient slips. If at all the fingers of the

two injured persons were cut or crushed, definitely, they

should have taken further treatment. No such records

were produced. On the other hand, admittedly the

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CRL.A No. 1240 of 2012

injured persons, according to the prosecution witnesses

were sent to assist the main workers. Ofcourse no

records were produced and why they went near the

rollers to put their hand to rollers is not forthcoming.

Therefore, learned JMFC after considering the oral and

documentary evidence has come to the conclusion that

the prosecution has failed to prove the guilt of the

accused beyond all reasonable doubt. In view of the

evidence placed before the Court and also the material

on record, I find that the judgment of the trial court is

neither perverse nor based on any untenable reasons.

On the other hand, the reasons assigned are just and

proper.

18. It is settled principles of law that in an appeal

arising out of judgment of acquittal, this Court will not

interfere simply because another view is possible,

unless the judgment is perverse and not based on any

evidence on record. But I find no such grounds are

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CRL.A No. 1240 of 2012

made out in the appeal. Therefore, I find no ground to

interfere in the judgment passed by the trial court.

Accordingly, I pass the following:-

ORDER

1. The appeal filed by the State-appellant under section 378(1) and (3) Cr.P.C. stands dismissed.

2. Consequently, the judgment and order of acquittal dated 09.12.2011 passed by learned II Addl. Civil Judge(Jr.Dn.) & JMFC, Malur, in C.C.No.537/2006 against the respondent/accused is hereby confirmed.