Mr. Bijay Kamath (Factory ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 3111 MP

                                                                                              1

               IN THE HIGH COURT OF MADHYA PRADESH
                                      AT GWALIOR
                                          BEFORE

                   HON'BLE SHRI JUSTICE ATUL SREEDHARAN

                            ON THE 21st OF FEBRUARY, 2023

             MISC. CRIMINAL CASE No. 53386 of 2022
       Between:-
       MR. BIJAY KAMATH (FACTORY OCCUPIER)
       FLAT NO. 1303 OCTAVIUS HIRANANDANI
       GARDEN     POWAI    MUMBAI    400076
       MAHARASHTRA (MAHARASHTRA)

                                                                          .....APPLICANT
       (BY SHRI ARVIND DUDAWAT - SENIOR ADVOCATE WITH
       SHRI ANSHUMAN DUDAWAT - ADVOCATE)

       AND

1.     STATE OF MADHYA PRADESH, THROUGH
       STATION HOUSE OFFICER, POLICE STATION
       MALANPUR,    DISTRICT  BHIND  (MADHYA
       PRADESH).
2.     FACTORY INSPECTOR, INDUSTRIAL HEALTH
       AND SAFETY GWALIOR AND CHAMBAL
       DIVISION, MOTI MAHAL GWALIOR.

                                                                     .....RESPONDENTS
       (BY SHRI NAVAL KUMAR GUPTA - PUBLIC PROSECUTOR)
-----------------------------------------------------------------------------------------------
       This application coming on for admission this day, the court passed the
following:
                                        ORDER

1. The present petition has been filed by the petitioner who is Factory Inspector of M/s Cadbury India Limited. The incident relates to 20-

11-2013 when the deceased Virendra Singh Rathore was maintaining the AHU (Air Handling Unit) which is a part of HVAC system (Heating Ventilation and Air Conditioning) installed at the premises of M/s Cadbury India Limited which manufactures chocolates. Upon opening the gate for the maintenance of the AHU, the deceased Virendra Singh was sucked in to the unit because of the low pressure generated by the rotating blades of the AHU and his body was dismembered. In this case, initially an FIR was registered by the police on the complaint given by the brother of the deceased in which petitioner herein was not named as an accused. Offence was for Section 304-A and 287 of IPC in which all the accused persons have been acquitted as so stated by learned senior counsel for the petitioner. Factory Inspector also inspected the premises and prepared a report which has been referred to by the learned counsel at page 48, on the basis of which he submits that the deceased was working in a new factory premises of M/s Cadbury India Ltd. when the incident happened.

2. The thrust of the learned senior counsel's argument is on the basis of definition of Manufacturing Process which is defined under Section 2(k) of the Factories Act, 1948 (for brevity "the Act of 1948"). The same reads as follows:

"(k) "manufacturing process" means any process for -

(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any

article or substance with a view to its use, sale, transport, delivery or disposal; or

(ii) pumping oil, water, sewage or any other substance;or

(iii) generating, transforming or transmitting power; or

(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding; or

(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or

(vi) preserving or storing any article in cold storage."

3. The focus of learned senior counsel for petitioner has been on definition of Section 2(k)(i) which according to learned senior counsel is a restrictive definition of Manufacturing Process and not inclusive and therefore, the ambit and scope of phrase Manufacturing Process cannot be expanded beyond what is given in sub clauses (i) to (vi) of clause (k) of Section 2 of the Act of 1948. Under the circumstances, learned senior counsel submits that the act that was being undertaken by the deceased was not for making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal. He has further referred to the judgment of Hon'ble Supreme Court in Lanco Anpara Power Limited Vs. State of Uttar Pradesh and others, (2016) 10 SCC 329 in order to buttress his arguments and place a

postulate before this Court that the activities of the deceased was related to construction of a new building, would fall under the definition of construction which includes building or other construction work under Section 2(i)(d) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (for brevity "the Act of 1996") and the same would make the provisions of the Act of 1948 inapplicable to construction of civil works, factory buildings, buildings intended to be setup as factory where no manufacturing process have started. In this case documents of the prosecution referred to the place where incident happened as a new factory of M/s Cadbury India Ltd. There is dispute or lack of clarity whether Manufacturing Process has started there or not. The documents do not refer that on the date of incident no production has started in such factory or that the factory was not functional.

4. Same notwithstanding, another peculiar fact about this case is that the entire trial has come to an end, evidence has been recorded, stage of 313 of Cr.P.C. is concluded and the case was posted for orders on 16- 01-2023. However, learned JMFC was of the opinion that offence in which petitioner was found guilty was punishable with sentence upto 7 years which was beyond his authority. He referred the same to the Chief Judicial Magistrate under Section 325 of Cr.P.C. for enhancement of the quantum of punishment.

5. Learned counsel for the petitioner has referred to Section 325 of Cr.P.C. and states that the procedure adopted by learned JMFC itself

goes to reflect that the trial had not concluded and the CJM to whom matter was being referred under Section 325 of Cr.P.C. had to further examine the witness as provided under Section 325(3) of the Cr.P.C. In this regard, learned counsel for the petitioner has referred judgment of Punjab and Haryana High Court in the case of Karnail Kuar and Anr. Vs. State of Haryana, 2019 1 AICLR 689. In that case, in a case inter alia of Section 420 IPC where multiple accused persons were involved and where trial Court had acquitted some and convicted another for lesser punishment than 3 years but one accused was sought to be awarded punishment beyond 3 years, the same was referred to the CJM under Section 325 of Cr.P.C. In para 11 of the said judgment, the Hon'ble High Court of Punjab and Haryama held that intent of the Code for inserting Section 325 of Cr.P.C. was not to make the CJM an appellate authority but only to ensure that in case where higher sentence is imposed, matter be dealt with by a more experienced Judge of the rank of Chief Judicial Magistrate rather than a Magistrate who may be a newly appointed person.

6. It further held that under the scheme of Code as per Section 325 of Cr.P.C., CJM has been vested with vast power in the matter so as to admit fresh evidence and even differ with the opinion of the referral Magistrate. This Court is in humble agreement of the finding of Hon'ble High Court of Punjab and Haryana. However it is necessary to appreciate Section 325 of Cr.P.C. in its entirety in order to examine whether the option of further examining or recalling witness is a compulsion under Section 325 of Cr.P.C. or merely an option given to

the CJM. Section 325 of Cr.P.C. reads as hereunder:

325. Procedure when Magistrate cannot pass sentence sufficiently severe.

(1) Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate. (2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub- section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate. (3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law.

7. Sub-section (1) of Section 325 of Cr.P.C. requires the Magistrate to form an opinion of guilt before referring the matter under Section 325 of Cr.P.C. to the CJM. Besides that, learned JMFC should also be of the opinion that the accused must receive a punishment different in kind or more severe than what he could inflict upon the accused. Thereafter he was to record his opinion and submit the proceedings and forward the accused to the learned CJM to whom such JMFC is subordinate.

8. The crux of learned senior counsel's arguments is based upon his reading of sub-section 3 of Section 325 of Cr.P.C. As per sub-section 3, CJM is required to examine the parties and recall and examine any witness only if he so thinks fit who has already given evidence in the case. Thus, sub-section 3 does not compel the CJM that he must necessarily examine the parties and recall and examine any witness who has already given evidence in the case. It is a discretion that is vested upon the CJM where if he is of the opinion that those witnesses who have already been examined have to be reexamined or that further evidence is required to be adduced then he may resort to under sub-section 3. Under sub-section 3, it is clear that the CJM can straightway pass the sentence or order without calling for additional evidence if he is convinced with the finding arrived at by the JMFC is correct and his opinion calls for no interference. In this regard, last sentence of sub-section 3 is very relevant where it says ............'and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law'. Thus, sub-section 3 provides that CJM

may accept the opinion of the JMFC itself as a judgment and thereafter go ahead and sentence the accused for punishment exceeding 3 years. Therefore, with great deference to the learned senior counsel for the petitioner, this Court is of the opinion that sub- section 3 vests discretion upon the CJM and does not bind him to a procedure where he is compelled to adduce further or additional evidence and thereafter pass a judgment.

9. In this case what is relevant is that entire trial proceedings have concluded before the JMFC, evidence has been adduced and evidence has been appreciated by the JMFC, at this juncture question before this Court is whether it should interfere using its inherent power under Section 482 of Cr.P.C. Several judgments have also been referred by learned senior counsel for the petitioner which are Mylan Laboratories Limited Vs. The State of Maharashtra, High Court of Bombay (Aurangabad Bench) MANU/MH/1839/2021 and 1976 JLJ 18 which is the judgment of Madhya Pradesh High Court in Mustaq Bai Vs. State of Transport Appellate Tribunal, Madhya Pradesh. In view of what the Court proposes to find in this particular case, reference to other judgments are not relevant but for the Full Bench judgment of this Court. In the Full Bench judgment, this Court held that question of limitation or delay does not arise when the order is without jurisdiction which cannot be allowed to remain on record for merely a technicality. The said judgment was passed in a case under the Motor Vehicles Act where power to dismiss the appeal in default of appearance was being considered by the Full Court as to

whether same was available to the Appellate Tribunal prior to 11-08- 1972. As the facts itself suggests, said judgment is not applicable in the facts and circumstances of this case.

10. Undoubtedly, powers of High Court under Section 482 of Cr.P.C. are wide. It can go to any extent where it feels that injustice or abuse of process of law results from the continuation of criminal proceeding against a person accused of a crime. However, such wide powers also come the discretion and the responsibility to be circumspect whether in the factual aspects of a particular case said power should be exercised.

11. In this case, the most striking feature is that the trial itself has concluded but for the proceeding under Section 325 Cr.P.C. which is still pending and all that is left is merely the order of sentence to be passed by the CJM or if he exercises discretion and considers the recall and further examination of witnesses and thereafter pass the judgment as provided for under Section 325(3) of Cr.P.C. As the said proceedings under Section 325 Cr.P.C. are still pending before the learned CJM, it would not be appropriate to reflect extensively on the highly disputed questions of fact which have arisen in this case less it prejudice either to the prosecution or the defence one way or the other.

12. However, in view of the peculiar facts and circumstances of this case, as the trial has concluded before the learned JMFC and the proceedings under Section 325 are only pending before the learned CJM and in view of the extensive evidence already drawn and

concluded by the prosecution before the Court of CJM, this Court feels that it is not an appropriate case where it must exercise its jurisdiction under Section 482 of Cr.P.C. and therefore, the petition is dismissed.

It is also stated very clearly that this order shall not influence the learned CJM in any manner and the observations made herein are purely for the purpose of deciding this 482 petition and same shall not be considered by the learned CJM either directly or indirectly.

(ATUL SREEDHARAN) JUDGE Anil*

ANIL KUMAR CHAURASIYA 2023.02.23 16:30:09 +05'30'