(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)
1. The petitioners - accused Nos.5 to 7 are
the proceedings in C.C. No.789/2023 pending on the file of
of the IPC.
2. This Court qua accused Nos.2, 3 and 4 in terms
No.102165 of 2023 has quashed the proceedings. This
"10. The afore-narrated facts are not in dispute.
The death of a person in the accident while
performing his duty in the Factory resulted in a
proceeding under the Act for offences punishable
under Section 92 of the Act. The Act is a complete
code by itself is not in dispute. It is also the law laid
down by the Apex Court in the case of J.K.Industries
Limited (supra). The Apex Court in the case of J.K
Industries Limited has considered the effect of
initiation of proceedings under the Act. Once having
initiated proceedings under the Act by the competent
officer and those proceedings ending in the
petitioners pleading guilty and closing the
proceedings, it was not open for another complaint
to be registered by the complainant and further
proceedings being taken up for offences punishable
under Section 304A of the IPC. The issue whether
proceedings under the IPC could be taken after
conclusion of the proceedings under the Act need not
detain this Court for long or delve deeper into the
matter as this Court in the case of Ananthakumar
(supra) while considering identical facts in a petition
under Section 482 Cr.P.C. has held as follows:
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"8. Upon hearing the learned counsels
appearing for the parties and on going through the
material on record, it is seen that the contentions
raised by the parties are already considered and
answered by this Court in AJIT KUKLARNI's case
(supra) wherein considering identical questions of
fact and law, this Court framed the following
questions for consideration viz.,
"1. Whether initiation of prosecution under
Section 304-A of IPC while prosecution for offences
punishable under Section 92 of the Factories Act is
legally permissible ?
2. Whether parallel or simultaneous
prosecution is legally impermissible ?
3. Whether the contravention of Section
29(1)(a)(ii) and Section 32(b) of the Factories Act,
1948 of the Factories Act punishable under Section
92 be clubbed with the offence punishable under
Section 304-A of Indian Penal Code?"
9. Referring to Section 300 of Cr.P.C and
Section 26 of the General Clauses Act and relevant
decisions on the point, this Court took note of the
fact that Section 92 of the Factories Act provides for
punishment of imprisonment for a period upto two
years for contravention of any provisions of this Act
and if such contravention has resulted in an accident
causing death or serious bodily injury, minimum fine
of Rs.25,000/- in addition to imprisonment. Likewise
Section 304-A prescribes that whoever causes the
death of any person by doing any rash or negligent
act not amounting to culpable homicide, shall be
punished with imprisonment of either description for
a term which may extend to two years, or with fine,
or with both. Considering these provisions in the
light of Section 219 of Cr.P.C, it was held that the
offences made punishable under Section 92 of the
Act and Section 304-A of Indian Penal Code are of
the same kind and are punishable with same
quantum of punishment and hence, Section 26 of the
General Clauses Act becomes applicable requiring
the offender to be prosecuted only under one
enactment and consequently, the proceedings
NC: 2025:KHC-D:1891
initiated against the accused therein were quashed.
The ratio laid down in the above decision has been
followed by this Court in the case of M.ZAKIR AHMED
(supra) and V.REVATHI (supra).
10. I am in respectful agreement with the view
taken by this Court in the above decisions. Even
otherwise the scheme of the Factories Act does not
permit parallel prosecutions under two different Acts
against a person accused of committing offences
under the Factories Act. Section 92 is the only
section under the Act which makes the
contravention of the provisions of the Act,
punishable fine. as criminal offence and prescribes
punishment and fine.
11. The Section reads as under:
"92. General penalty for offences.--Save as is
otherwise expressly provided in this Act and subject
to the provisions of section 93, if in, or in respect of,
any factory there is any contravention of any of the
provisions of this Act or of any rules made
thereunder or of any order in writing given
thereunder, the occupier and manager of the factory
shall each be guilty of an offence and punishable
with imprisonment for a term which may extend to
1[two years] or with fine which may extend to 2[one
lakh rupees] or with both, and if the contravention is
continued after conviction, with a further fine which
may extend to 3[one thousand rupees] for each day
on which the contravention is so continued:
4[Provided that where contravention of any of the
provisions of Chapter IV or any rule made
thereunder or under section 87 has resulted in an
accident causing death or serious bodily injury, the
fine shall not be less than 5[twenty-five thousand
rupees] in the case of an accident causing death,
and 6 [five thousand rupees] in the case of an
accident causing serious bodily injury.
From the reading of the above section, it is
clear that whenever contravention of the provisions
of the Act or the Rule made thereunder has resulted
in an accident causing death or serious bodily injury,
in addition to punishment of imprisonment for a term
NC: 2025:KHC-D:1891
which may extend to two years or a minimum fine of
Rs.25,000/- is visited as penalty. This provision if
read in the backdrop of Section 88 of the Act, it casts
an obligation on the occupier to give notice of the
accident within 48 hours immediately following the
accident, to the authorities constituted under the
Act. Section 9 of the Act deals with the powers of the
Inspectors. It empowers the Inspectors to inquire
into any accident or dangerous occurrence, resulting
in bodily injury, disability and to take on the spot or
otherwise the statements of any person which he
may consider necessary for such inquiry. Thus, the
scheme of the Act provides for an independent
mechanism for inquiry or investigation into the
accident taking place within the premises of the
factory by the Inspectors, but it does not invest
power on the police to register and investigate the
offences against occupiers or other personnel of the
factory.On the other hand, Section 105 of the Act
mandates that no Court shall take cognizance of any
offence under this Act except on complaint by, or
with previous sanction in writing of, an Inspector.
This provision, therefore, impliedly ousts the
jurisdiction of the police to register FIR in respect of
the alleged contraventions of the Factories Act and
to embark upon investigation thereon even if the
contravention leads to accident resulting in death or
bodily injury within the factory premises. These
special provisions therefore, prevail upon the general
provisions contained in Indian Penal code and
operate as implied repeal of the substantive offence
created under the general law viz. Section 304A of
Indian Penal Code as it renders the accused culpable
for the same offence as described in Section 92 of
the Act in respect of death or bodily injury arising
due to contravention of the provisions of the
Factories Act. .
12. The above conclusion is drawn from the
well established principle of law that, "when a later
statute describes an offence created by an earlier
statute and imposes different punishment or varies
the procedure, the earlier statute is repealed by
implication." This principle of statutory interpretation
is reiterated by the Hon'ble Supreme Court in
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T.BARAI vs. Henry Ah Hoe and another (AIR 1983
SC 150) in the following words :
"25. It is settled both on authority and principle
that when a later statute again describes an offence
created by an earlier statute and imposes a different
punishment, or varies the procedure, the earlier
statute is repealed by implication. In Michell v.
Brown(1) Lord Cambell put the matter thus :
"It is well settled rule of construction that, if a
later statute again describes an offence created by a
former statute and affixes a different punishment,
varying the procedure, the earlier statute is repealed
by the later statute See also Smith v. Benabo (1937)
1 A11 ER 523 (2) In Regina v. Youle, (1861) 158 ER
311-316 (3) Martin, B. said in the oft-quoted
passage:
"If a statute deals with a particular class of
offences, and a subsequent Act is passed which deals
with precisely the same offences, and a different
punishment is imposed by the later Act, I think that,
in effect, the legislature has declared that the new
Act shall be substituted for the earlier Act."
The rule is however subject to the limitation
contained in Art. 20(1) against ex post facto law
providing for a greater punishment and has also no
application where the offence described in the later
Act is not the sameas in the earlier Act i.e. when the
essential ingredients of the two offences are
different.'
13. The facts on record clearly disclose that on
getting information of the accident, the Deputy
Director of Factories and Labour Officer rushed to the
spot and took up inquiry/investigation and having
ascertained that the petitioners herein contravened
provisions of the Factories Act resulting in the death
of five of its workers, filed a complaint before the
Judicial Magistrate of First Class, Chamarajanagar on
20.11.2012
The same was numbered as C.C. No.823/2013.
It is not in dispute that the learned Magistrate has
NC: 2025:KHC-D:1891
taken cognizance of the alleged contraventions
punishable under Section 92 of the Act and has
issued summons to the petitioners. It is also not in
dispute that the said complaint is filed prescribed
under Section 106 of the Act. Within limitation
Undoubtedly, the proceedings in C.C. No.823/2013
are initiated in accordance with law and the same
are pending consideration of the learned Magistrate.
That being the case, Chamarajanagar Police could
not have registered a case in Crime No.240/2012
against the petitioners for the alleged offence
punishable under Section 304-A of Indian Penal Code
and proceeded with the investigation and filed a
charge sheet for the above offences, nor could the
learned Magistrate have taken cognizance of the said
offence and issued summons to the petitioner.
Needless to say that in view of specific bar contained
in Section 105 of the Act, learned Magistrate could
not have assumed jurisdiction to take cognizance of
the alleged offence except upon the complaint filed
by the authorized officer viz., Inspector appointed
under the Factories Act. Moreover, learned
magistrate having already taken cognizance of the
alleged offence based on the complaint lodged by the
Asst. Director of Factories, in view of Section 26 of
the General Clauses Act, cognizance taken by the
learned Magistrate and the summons issued to the
petitioners to face the charges for the alleged
offence under Section 304-A of Indian Penal Code
being legally untenable cannot be sustained.
14. In view of the above factual and legal
position, the registration of FIR against the
petitioners by respondent No.1 and consequent
investigation and submission of the charge sheet
paving way for the prosecution of the petitioners for
the alleged offence under Section 304-A of Indian
Penal Code as well as cognizance taken by the
learned Magistrate and the prosecution initiated
against the petitioners is held as illegal, without
jurisdiction and a clear case of abuse of process of
court.
For the above reasons, the petition is allowed.
The proceedings in C.C.No.823/2013 initiated
against the petitioners are quashed."
NC: 2025:KHC-D:1891
11. This Court in the afore-extracted judgment
was answering a question whether initiation of
prosecution under Section 304A of the IPC while
prosecution for offences punishable under Section 92
of the Act was legally permissible. Whether parallel
or simultaneous prosecution was legally permissible,
considering various judgments of the Apex Court and
the purport of Section 304A, a coordinate Bench of
this Court has held that registration of FIR and
consequent investigation and submission of charge
sheet for alleged offence under Section 304A were
all illegal, without jurisdiction and an abuse of
process of the Court. The factors obtaining in the
case at hand are totally identical to the factors that
were obtaining in the aforesaid criminal petition. The
offence under Section 287 of the IPC which deals
with negligence in respect of machinery also would
not be available to be undertaken against the
petitioners in the light of the very same reasoning
rendered by the coordinate Bench in Ananthakumar's
case."
3. This judgment is subsequently followed
by another co-ordinate Bench in Crl. P.
No.7964/2016 disposed of on 02.01.2023, wherein
this Court has held as follows:
5. It is undisputed that the petitioners have
been convicted for the offence punishable under
Section 92 of the Factories Act and the Co-ordinate
Dench of this Court in Crl.P.No.5115/2014 has held
that stimulates prosecution under Section 304-A of
IPC and Section 92 of the Factories Act is
impermissible, since the offence under Section 92
of the Factories Act and Section 304-A of IPC are of
the same kind and are punishable with same
quantum of punishment and hence, Section 26 of
the General Clauses Act becomes applicable
requiring the offender to be prosecuted only under
one enactment and consequently, the proceedings
initiated against the accused for the offence
punishable under Section 304-A stands quashed. In
view of the ratio enunciated by the Co ordinate
Bench in the aforesaid case, continuation of
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criminal proceedings against the petitioner-accused
will be an abuse of process of law.
4. Learned counsel for the petitioner
submits that an employment is offered and accepted
by the family member of the complainant and is also
given Rs.15 lakhs as compensation for the fateful
incident of the death of the family member of the
complainant.
5. In the light of the said submission and
also the issue standing covered by the judgments
rendered by this Court and that the Co-ordinate
Bench, I deem it appropriate to pass the following:
ORDER
(i) The petition is allowed.
(ii) The impugned proceedings in Crime
No.133/2022 stands quashed."
3. Accused Nos.5 to 7 undoubtedly stand on the
same footing and therefore, they are entitled to the same
relief that is granted by this Court qua accused
Nos.2, 3 and 4.
4. In that light, the following:
ORDER
(i) The criminal petition is allowed.
(ii) The proceedings in C.C. No.789/2023
pending on the file of the Civil Judge and
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JMFC, Hagaribommanahalli registered for
the offences punishable under Sections
287, 304A of the IPC stand quashed qua
petitioners herein.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Vnp / CT: ASC
