Madras High Court
Ajay Sanghi vs State Of Tamil Nadu on 6 July, 2022
Crl.O.P.No.7972 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2022
CORAM:
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
CRL.O.P.No.7972 of 2022
and Crl.M.P.Nos.4643 and 4644 of 2022
Ajay Sanghi
S/o.Madanlal Sanghi
Occupier, SHV Energy Private Limited
LPG Bottling Plant
Plot No.A11/2, Part A
Survey No.32 / 2 Part
SIPCOT Industrial Park
Thervoy Kandigai Village
Gummidipoondi Taluk
Thiruvallur District 601202 ... Petitioner
Vs.
State of Tamil Nadu, Rep. by Deputy Director
of Industrial Safety and Health – II
(Inspector of Factories)
S.F.No.47/1, Block-6
Thiru Vi Ka Industrial Estate
(Near Metro Water Roundtana)
Guindy, Chennai - 32 ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C.,
to call for the entire records in C.C.No.56 of 2022, pending on the file of
Learned Chief Judicial Magistrate, Tiruvallur and quash the same.
Page No.1 of 10
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.7972 of 2022
For Petitioner : Mr.Rahul Balaji
Mr.Palaniandavan
For Respondent : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl. Side)
ORDER
This Criminal Original Petition filed is under Section 482 of
Cr.P.C., to call for the entire records in C.C.No.56 of 2022, for alleged
contravention of Section 41 r/w. R.61-E and R.61-R, punishable under
Section 92 of the Factories Act, pending on the file of Learned Chief
Judicial Magistrate, Tiruvallur and quash the same.
2.It is the contention of the complainant that on 26.08.2020, when
the factory inspector inspected the factory premises of the petitioner,
found certain contravention, thereby, the prosecution has been launched.
The entire complaint except stating that the factory premises was
inspected on 26.08.2020, no other whisper whatsoever is made with
regard to show cause notice and no order passed therein.
3.Learned counsel for the petitioner would submit that after the
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Crl.O.P.No.7972 of 2022
receipt of the show cause notice dated 26.09.2020, appropriate reply was
sent on 06.10.2020 and the same was not considered by the respondent
either in the complaint or before sanctioning the prosecution. Hence,
submitted that the very complaint itself is not maintainable. The learned
counsel also placed reliance on the judgment of this Court vide order
dated 19.08.2019 in Crl.O.P.Nos.23034 and 23035 of 2015.
4.Learned Government Advocate (Crl. Side) appearing for the
respondent would submit that after the issuance of show cause notice,
they have again visited the factory premises on 20.11.2020 and found
some contraventions, therefore, they have filed the complaint.
5.Heard the learned counsel appearing for the petitioner and the
learned Government Advocate (Crl. Side) for the respondent. Perused the
complaint.
6.In the complaint, except stating that the Inspector of Factories
visited the factory premises on 26.08.2020 and found certain violations,
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Crl.O.P.No.7972 of 2022
there is no whisper whatsoever with regard to the detailed reply given by
the petitioner to the show cause notice dated 26.09.2020. Whether any
order passed or not based on the reply is also silent in the complaint and
further there is no whisper made with regard to any subsequent
inspection.
7.As submitted by the learned Government Advocate (Crl. Side), it
is not disputed that the show cause notice was issued and which was
appropriately replied. Such being the position, there must be a proper
order before filing a complaint. In this regard, this Court has held in
Crl.O.P.No.23034 and 23035 of 2015 dated 19.08.2019 as follows:
18.The petitioners have given a detailed reply for the
Show Cause Notice issued by the respondent. This reply has not
been taken into consideration either at the time of granting
sanction or at the time of filing of the complaint. This Court has
already held that where a reply has been given to the Show
Cause Notice, the said reply has to be considered and dealt with
at the time of filing of the complaint, failing which, the
complaint itself becomes unsustainable on the ground of non
application of mind. Useful reference can be made to the
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Crl.O.P.No.7972 of 2022
judgment of this Court in K.Masthan Rao .Vs. State, rep. by
Inspector of Factories, First Circle, Vellore reported in 2014
(3) MWN (Cr.) 86. The relevant portions of the judgment is
extracted hereunder:
“27. As pointed out earlier, the form 3A
intimating notice of change of Deputy Chief
Engineer, minutes of the Canteen Advisory
Committee meeting, minutes of Safety Committee
meeting, the report of examination of cranes,
ropes, etc., building stability certificate were all
forwarded to the respondent/complainant as well
as the head of department. Thereafter, on
28.09.2012, another representation was made
enclosing copy of the building stability certificate
issued by the competent person and
simultaneously requesting the Chief Inspector of
Factories to nominate recognised persons for
signing them stability certificate. Despite all these
factual submissions, the complaints have been
filed by the respondent verbatim repeating the
allegations made in the show cause notice.
Surprisingly, there is no reference to the
explanations submitted by the petitioners and as
to how the petitioners have not complied with the
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Crl.O.P.No.7972 of 2022
deficiencies pointed out, as to how the same stand
rectified and such other matters. In the show
cause notice dated 09.04.2012, it has been stated
that on 22.03.2012, an inspection was conducted
in the factory and the deficiencies, which were
noticed in the course of inspection, were listed out
as serial nos. 1 to 16 and the petitioners were
called upon to explain as to why, prosecution
should not be initiated against them by giving
them seven days time to submit their explanation
in writing, failure to avail the opportunity would
be considered that there is no explanation to offer
and without further notice, action would be taken.
Therefore, the respondent/complainant being a
statutory authority having provided for an
opportunity to the petitioner to show cause ought
to have considered the correctness of the
proprietary of the explanations offered.
28. In terms of Rule 102 of the Tamil Nadu
Factory Rules, 1950, the Occupier, Owner or
Manager of a factory shall furnish information to
an inspector for the purpose of satisfying himself
whether any of the provisions of the Act have been
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Crl.O.P.No.7972 of 2022
complied with or whether any order of the
Inspector has been carried out and any demand
of such information, if made during the course of
an inspection, shall be complied with forthwith or
if made in writing, shall be complied with within
seven days of receipt thereof. Thus, the rule
contemplates an opportunity for compliance. If
the respondent/complainant has pointed out
certain contraventions and if the contraventions
exist, the contravener is bound to comply with
within seven days. The case on hand is slightly
different in the sense that the petitioners have
submitted their explanations showing cause in
respect of the allegations made in the show cause
notice. In such circumstances, the
respondent/complainant cannot ignore the reply
to the show cause notice and proceed to lodge the
complaint, as if he has not received any reply.
29. As noticed above, there is no reference
to the reply submitted by the petitioner. The
complaint was signed by the respondent on
20.06.2012 and filed before the Court on
21.06.2012, presumably not in full form and
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Crl.O.P.No.7972 of 2022
appears to have been returned and re-presented
on 30.09.2013. In the interregnum, the petitioner
has been given the replies dated 16.04.2012 and
31.05.2012. That apart, the further explanations
dated 12.07.2012 and 28.09.2012, were submitted
much prior to the date on which, the complaint
was re-presented i.e., on 30.09.2013. There is no
explanation forth coming as to why the complaint
which was presented on 21.07.2012 was returned
and as to why the complaint was re-presented
after more than one year. Therefore, this Court
has no hesitation to hold that the complaint is
vitiated on account of total non-application of
mind”.
8.Further, the learned Chief Judicial Magistrate, Tiruvallur has also
mechanically took cognizance without applying his mind, which can be
clearly seen from the endorsement affixed in the complaint. Such
approach of the Courts was deprecated in many cases, despite the same,
the trial Court is mechanically affixing a rubber stamp and taking
cognizance, which has been deprecated by this Court vide its order dated
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Crl.O.P.No.7972 of 2022
17.11.2021 in Crl.O.P.No.7347 of 2017 in A.T.Kannan V. The State
represented by P.Rajasekar, Food Safety Officer. Therefore, without any
material about the show cause notice and reply given, a decision has
arrived to proceed further taking cognizance in a mechanical manner is
also nothing but an abuse of process of law.
9.Considering the above judgment and decision and also the fact
that the reasons for the show cause notice has not been reflected in the
complaint, taking cognizance of the same by the Court on the basis of the
complaint which is bereft of details is nothing but abuse of process of
law.
10.In the result, the Criminal Original Petition stands allowed.
C.C.No.56 of 2022, for alleged contravention of Section 41 r/w. R.61-E
and R.61-R, punishable under Section 92 of the Factories Act, pending
N.SATHISH KUMAR, J.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.7972 of 2022
kas
on the file of Learned Chief Judicial Magistrate, Tiruvallur is hereby
quashed. Consequently, the connected miscellaneous petitions are closed.
06.07.2022
(4/5)
kas
Index: Yes / No
Internet : Yes / No
Speaking / Non Speaking order
To
1.The Deputy Director of Industrial Safety and Health – II
(Inspector of Factories)
S.F.No.47/1, Block-6
Thiru Vi Ka Industrial Estate
(Near Metro Water Roundtana)
Guindy, Chennai - 32
2.The Public Prosecutor
High Court of Madras
Chennai 600 104.
CRL.O.P.No.7972 of 2022
and Crl.M.P.Nos.4643 and 4644 of 2022
https://www.mhc.tn.gov.in/judis
