Karnataka High Court
Vijay S Katkar vs The Deputy Director Of Factories on 7 March, 2024
1 CRL.RP.NO.100238/2014
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION No.100238/2014
BETWEEN
1 . SHRI. VIJAY S. KATKAR,
M/S. ASHOK IRON WORKS PVT. LTD,
PLANT NO.2, PLOT NO.67-71 & 95-96,
MACHE INDUSTRIAL AREA,
MACHHE VILLAGE, BELAGAVI-590014.
2. M. N. LINGARAJU,
CHANDRASHEKAR
MANAGER,
LAXMAN
KATTIMANI M/S. ASHOK IRON WORKS PVT. LTD,
PLANT NO.2, PLOT NO.67-71 & 95-96,
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI MACHE INDUSTRIAL AREA,
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.12
MACHHE VILLAGE, BELAGAVI-590014.
16:01:48 +0530
...PETITIONERS
(By SRI. SOURABH HEGDE, ADV. FOR
SRI. SHREEVATSA S.HEGDE, ADVOCATE)
AND
THE DEPUTY DIRECTOR OF FACTORIES,
FIRST DIVISION, NO. 17,
DATTA PRASAD BUILDING,
K. R. LAYOUT, CLUB ROAD, BELAGAVI.
...RESPONDENT
(By SMT.GIRIJA S.HIREMATH, HCGP)
2 CRL.RP.NO.100238/2014
THIS CRIMINAL REVISION PETITION IS FILED U/S. 397
R/W. 401 OF CR.P.C, PRAYING THIS COURT TO, SET ASIDE THE
JUDGMENTS OF CONVICTION DATED 10.09.2012 IN
C.C.NO.1250/2008 PASSED BY THE JMFC II-COURT, BELAGAVI,
CONFIRMED IN JUDGMENT DATED 01.07.2014 PASSED BY THE
V ADDL. DISTRICT AND SESSIONS JUDGE, BELGAUM IN
CRL.A.NO.182/2012.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
12.12.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER/JUDGMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition filed under Section 397 r/w Section 401
Cr.P.C is by the accused Nos.1 and 2, challenging their
conviction and sentence imposed by the trial Court for the
offence punishable under Section 92 of the Factories Act,
which came to be confirmed by the Sessions Court by
dismissing the appeal filed by them.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. The Deputy Director of Factories filed a complaint
against accused Nos.1 and 2 for the offence punishable
under Section 92 of Factories Act, alleging that accused No.1
is the occupier and accused No.2 is the Manager of M/s
Ashok Iron Works Private Ltd. (for short 'the factory')
situated at Machche Industrial Area, Machche Village,
Belgaum. It is engaged in manufacture of castings with caste
iron using electricity. It comes under the jurisdiction of
Deputy Director of Factories.
3.1 On 16.07.2008, at about 10.45 a.m, at the
moulding division one Bharath Kumar B.Mahath (for short
'deceased'), a contract workman was engaged in tightening
the bolts of moulding box used for collecting molton metal.
At that time one Shankar N.Chauhan, Core setter, who was
working with him was shifting the cope i.e., top halve of
moulding box No.2 with the help of 15 tonne crane.
However, crane touched the cope (top halve) of moulding
box No.46 and it slanted and fell on Bharath Kumar from his
back side. He suffered grievous injury to his head and later
died.
3.2 On 16.07.2008, Sri.Sridhar, Deputy Manager
Safety informed the complainant telephonically about the
incident and that injured worker has died. He submitted
Form No.17. Accordingly, on 16.07.2008, complainant visited
the factory and conducted enquiry. On 17.07.2008, he
recorded the statements of concerned witnesses viz.,
Shankar N Chauhan and Prashanth Neelajkar. After
concluding the enquiry, complainant has filed the complaint.
4. The trial Court has taken cognizance and secured
the presence of accused Nos.1 and 2.
5. Accused have pleaded not guilty and claimed trial.
6. In order to prove the allegations against the
accused, on behalf of the complainant, 3 witnesses are
examined as PW-1 to 3 and Ex.P1 to 28 are marked.
7. During the course of their statement under
Section 313 Cr.P.C, accused have denied the incriminating
evidence led by the complainant.
8. Accused have not led any defence evidence.
9. Vide the judgment and order 10.09.2012, the trial
Court convicted the accused and sentenced them to pay a
fine of Rs.50,000/- each, in default to undergo SI for a
period of three months.
10. Accused challenged the same before the Sessions
Court in Crl.A.No.182/2012, which came to be dismissed and
thereby confirming the judgment and order of the trial Court.
11. Being aggrieved by the same, the accused have
come up with this revision petition, contending that the
impugned judgments and orders are contrary to law, facts
and procedure. They are self contradictory and do not satisfy
the mandatory requirement of criminal jurisprudence. The
trial Court has attached much importance to the evidence of
PW-1, who is not an eye witness. The impugned judgments
and orders are based on inferences, surmises and
conjectures. Both Courts have failed to appreciate that proof
of negligence under the Factories Act is different from proof
under penal law. They have based their judgments upon
unsubstantiated statement of PW-2 and erroneously held
that accused have admitted his evidence.
12. After holding that prosecution has failed to bring
out any evidence about the manner of accident, but at the
same time held that the prosecution has successfully brought
home guilt to the accused. The trial Court has placed reliance
upon Ex.P11 to convict the accused, nevertheless the same
does not form part of questionnaire prepared for the answers
from accused under Section 313 Cr.P.C. After observing that
the admissions given in Ex.P11 were withdrawn by the
accused by contesting the claim of the complainant, it has
erred in holding that the admissions operate against the
accused. Viewed from any angle, the impugned judgment
and order are not sustainable and pray to allow the petition,
set aside the impugned judgment and order of the trial Court
and Sessions Court.
13. In support of his arguments, learned counsel for
accused Nos.1 and 2 has relied upon the following decisions:
(i) Mohammed Azeez Vs. Ravindran P
(Mohammed Azeez)1
(ii) Vineet Agarwal and Anr. Vs. State of
Karnataka (Vineet Agarwal)2
(iii) K.Rajashekhar Reddy and Anr. Vs. State of
Karnataka and Anr.(K.Rajashekar Reddy)3
14. On the other hand learned High Court
Government Pleader supported the impugned judgment and
order of the trial Court as well as Sessions Court and sought
for dismissal of the petition.
15. Learned High Court Government Pleader has
relied upon the following decision:
(i) Patrick George Yadauga Vs. State of
Karnataka (Patrick)4
Crl.P.Nos.2570/2021 c/w 2594/2021
16. Heard elaborate arguments of both sides and
perused the record.
17. It is not in dispute that at the relevant point of
time accused were the occupier and Manager of the factory
in question and under the Factories Act, they are responsible
for the day to day working and management of the same
and they are liable under the Factories Act for any violation
and non-compliance. It is also not in dispute that PW-1
Shankar N. Chauhan was working as Core Setter in moulding
division and on 16.07.2008, deceased who was a contract
worker was assisting PW-1 Shankar N. Chauhan as the
regular worker Ramalinga Patil did not come for work. On
that day, in the first shift, both of them were working in the
core setting area. Deceased was tightening the bolts. PW-1
Shankar N. Chauhan in addition to doing core setting was
also shifting the moulding boxes using crane. According to
the complainant he was not trained to operate the crane and
the trained crane operator was not engaged. It has come in
the evidence that while deceased was tightening the bolts,
PW-1 Shankar N.Chauhan brought one mould through crane
and when he was lowering it, it touched another mould and it
fell on deceased as a result of which his head was caught in
between two mould boxes and he sustained crush injuries.
The fact of accident was intimated to the complainant
telephonically and in this regard accused No.2 M.N.Lingaraju
has submitted Form No.17 as per Ex.P2. Upon receipt of the
said report, the complainant who is examined as PW-2 has
visited the factory, inspected the spot, recorded the
statement of witnesses and also enquired with the
management about the incident. He has recorded the
inspection report in the inspection register. Again on
17.07.2008, he has visited the factory and collected
documents. Though the deceased was subjected to post
mortem examination and complainant has requested for PM
report, the same has not been furnished.
18. During the course of his evidence, complainant
who is examined as PW-2 has reiterated the enquiry
conducted by him including the fact of recording the
statements of eye witnesses and other concerned persons.
After conducting the enquiry, he has come to a definite
conclusion that the floor area in the moulding department
was not even and leveled, as a result of which when cope
and drag were kept on the floor, they got imbalanced and fell
on the deceased injuring him. The mould boxes were not
kept with sufficient space in between so as to prevent one
box falling on the other resulting in injury to the workers.
The crane was not operated by the trained operator, but by
the core setter themselves. The crane was also not properly
maintained. The pendant box of the crane was not in good
condition and buttons were also not operating smoothly. The
crane was also not provided with Hooter/Siren in order to
caution the personnel working nearby. The crane was also
not having emergency stop button to stop the load instantly
at the particular desired location.
19. During the course of his evidence, complainant
(PW-2) has reiterated the complaint averments. Except
suggesting that there was no impediment to record the
statement of witnesses on 16.07.2008 and that accident has
occurred due to the negligence of deceased himself, the
evidence of complainant has practically remained
unchallenged. So far as not recording the statement on
16.07.2008 is concerned, PW-2 has stated that as on that
day, the worker had died, the other workers were not
available at the spot. Therefore, he has recorded their
statement on the next day. He has denied the suggestion
that without waiting for receipt of PM report, he has hurriedly
filed the charge sheet.
20. PW-1 Shankar N. Chauhan is the eye witness to
the incident. He was the one who was working with deceased
and in fact deceased was assisting him. He has deposed as
though he was not present when the accident took place.
During his cross-examination, he has stated that when the
incident took place, he had gone to have tea and after
hearing the commotion, he came back and saw the deceased
injured. He has stated that complainant took his LTM to a
blank paper at the factory office. However, in the previous
sentence, he has stated that he did not know the contents of
the documents to which his LTM was taken.
21. Having regard to the fact that the accident took
place in the core setting area and he was the one who was
working as core setter and deceased was assisting him and it
is the specific case of the complainant that he was the one
who was operating the crane when the incident took place, if
PW-1 Shankar N.Chauhan was not present then he has to
disclose who was the person who was operating the crane.
Complainant as the Deputy Director of Factories and as a
responsible Officer has visited the spot immediately after the
incident and made enquiry and recorded the statements of
eye witnesses. It is absured to suggest that he would take
LTM of PW-1 Shankar N. Chauhan to blank paper and fill it
up subsequently. It appears since PW-1 Shankar N. Chauhan
is an employee of the factory working under the accused, to
help them he has come up with such an evidence.
22. In fact Ex.P11 which is the reply given by the
accused to the investigation report at Ex.P7 submitted by the
complainant is contrary to the defence taken by the accused
at the trial. In Ex.P11, while regretting the unfortunate death
of deceased, the accused have admitted the short falls
pointed out by the complainant in the investigation report
and undertaken to correct them and they have stated the
measures taken by them viz.,
(i) To level the floor with RCC so as to keep the
mould boxes on clean and leveled platform.
(ii) Hereinafter the core setting department will work
only one set of mould boxes. No addition mould
boxes will be brought near the working area
unless one set of mould box is completed in all
respect and it will be monitored by the
supervisors.
(iii) Though it is claimed that the core setters are
trained systematically in the operation of EOT
cranes, henceforth it will be ensured that only
trained and competent persons will operate the
crane.
(iv) They have seriously reviewed the maintenance,
practices and now the EOT crane is being
maintained in good condition. It is fixed with new
buttons which provides smooth operation. Also
the safety checks are initiated by safety and
maintenance department to comply with the
same.
(v) The crane is provided with Hooter/Siren to give
caution to the working persons in the vicinity.
(vi) Emergency stop button is fixed on the pendant
box to stop the crane in case of emergency
situation.
23. Thus, through the testimony of PW-1 and 2, it is
established that the accident in question occurred on account
of not properly maintaining the floor area and the crane and
that the crane was operated by untrained person and
thereby the accused have violated the provisions of Rule 84,
which is punishable under Section 92 of the Factories Act.
24. In the present case PM report is not produced and
marked. A suggestion is made to PW-2 that he did not wait
till receipt of PM report and rushed to file the complaint.
Though the complainant has requested for the PM report, it
has not been furnished to him. As per Ex.P12, the Medical
Director of ESI Hospital, Belagavi has written a letter to the
complainant stating that as per the report given by the
factory and as per the medical records, deceased sustained
crushed injuries to his head while working in the factory and
died. As per Ex.P13, the PSI of Belagavi Rural P.S has
written a letter to the complainant stating that in respect of
the said incident, no case is registered in the said P.S as
neither the factory authorities nor relatives of the deceased
have given any complaint.
25. It appears either the dead body is not subjected
to PM examination or it is not made available to the
complainant for obvious reasons. However, fact remains that
deceased sustained injuries while working in the factory in
question and succumbed to the injuries while being taken to
the hospital. In the circumstances it is proved by the
complainant that the death of deceased was on account of
head injuries sustained and it does not lie in the mouth of
the accused to dispute the same.
26. It is not correct for the accused to contend that
Ex.P11 is not referred to in the 313 statement. The same is
referred to in question No.3. Moreover it is the reply given by
the accused undertaking to comply with the necessary
requirements.
27. Learned counsel for accused relying upon Section
107 of the Factories Act submitted that since the
complainant has failed to pass orders on the explanation
submitted by the accused, they have lost opportunity of
challenging the same in appeal and therefore, the
proceedings are vitiated.
28. Chapter X of Factories Act deals with penalties
and procedure. Section 92 of the Factories Act prescribes
general penalty for the offences. On proof of the offence
committed by the accused, they are liable for punishment as
per this Section, which is punishing clause. It does not
require the Inspector to pass any order and therefore it is
not appealable under Section 107. Only Sections 15(3),
38(1), 39 and 40(2) of Factories Act require the Inspector to
pass necessary orders in writing, specifying the measures
which in his opinion should be adopted, and requiring them
to be carried out before specified date.
29. Section 15 deals with artificial humidification i.e.,
the humidity of the air inside the factories required to be
increased.
30. Section 38(1) deals with precautions in case of
fire and require that in every factory, all practicable
measures shall be taken to prevent out break of fire and its
spread, both internally and externally, etc.
31. Section 39 is the power exercised by the
Inspector to require specification of defective parts or test of
stability. It states that if the Inspector is of the opinion that
any building or part of a building or any part of the ways,
machinery or plant in a factory is in such a condition that it
may be dangerous to human life or safety, he may serve on
the occupier or Manager or both of the factory an order in
writing requiring him to furnish drawings, specifications, etc.
to determine whether they can be used with safety. He may
also direct to carry out such tests to...... inform Inspector of
the result thereof. Similarly, Section 40 deals with safety of
buildings and machinery. If the Inspector is of the opinion
that the building........ or plant in a factory is in such a
condition that it is dangerous to human life or safety, he may
serve on the occupier or Manager or both an order in writing
specifying the measures which are required to be
adopted....... carried out before a specified date.
32. In fact Section 107(2) requires that in case of
necessary, the appellate authority may hear the appeal with
the aid of assessors, which itself goes to show that in the
orders passed under Section 15(3), 38(1), 39 and 40(2), the
services of assessor may require to decide the safety
measures already taken or required to be taken. Section 107
has nothing to do with the criminal liability for which
punishment is prescribed under Chapter X. Therefore, the
say of learned counsel for accused that the
complainant/Inspector was require to pass certain order, in
the absence of which the proceedings are vitiated cannot be
accepted and is without any substance. If such an argument
is accepted, then no action could be taken against the
occupier or Manager for violation of the provisions under the
Factories Act, for which penalty is prescribed in Chapter X.
33. While deciding Mohammed Azeez, Vineet
Agarwal and K.Rajashekar Reddy, the Co-ordinate Bench
of this Court has not considered these aspects and therefore,
no reliance could be placed on them. In fact in Patrick and
Yashihirao Horinouchi Vs. The Deputy Director of Factories
(Yashihirao)5 the Co-ordinate Bench of this Court has in
detail examined the provisions of Factories Act and refused
to quash criminal proceedings against the petitioners therein
by holding that for taking criminal action, there is no need
for the Inspector to pass any order on the explanation
submitted by the occupier or Manager as the case may be.
These two decisions are applicable to the case on hand. In
fact in Ex.P11 which is a reply submitted to the accident
investigation report, the accused have admitted that there
are certain lapses and they are being corrected. It has
nothing to do with the criminal liability incurred on account of
the accident that has taken place.
34. Considering the oral and documentary evidence
placed on record, the trial Court as well as Sessions Court
have rightly held that the allegations against accused are
proved beyond reasonable doubt. The conclusions arrived at
by them are in consonance with the evidence placed on
record and this Court finds no justifiable grounds to interfere
with the same.
35. In the result of the petition is liable to be
dismissed and accordingly the following:
ORDER
(i) Petition filed by the accused under Section
397 r/w Section 401 I.P.C is dismissed.
W.P.No.11451/2018 Dt: 06.12.2021
(ii) The impugned judgment and order dated
10.09.2012 in C.C.No.1250/2008 on the
file of JMFC-II, Belgaum and judgment and
order dated 01.07.2014 in
Crl.A.No.182/2012 on the file of V
Addl.District and Sessions Judge, Belgaum
are confirmed.
(iii) The Registry is directed to send back the
trial Court as well as Sessions Court
records along with copy of this order
forthwith.
Sd/-
JUDGE
RR
