Madras High Court
The State Represented By Its vs M.Palaniyandi on 5 March, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C (MD).Nos.488 and 489 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.12.2024
PRONOUNCED ON : 05.03.2025
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.R.C (MD).Nos.488 and 489 of 2021
The State represented by its
The Deputy Director – II,
Industrial Safety and Health,
Trichy. ...Petitioner in both the Revisions
Vs.
M.Palaniyandi ...Respondent in both the Revisions
Prayer in both the Revisions: The Criminal Revision Cases filed under
Section 397 read with Section 401 of Cr.P.C. to call for the records in
S.T.C.Nos.14 and 13 of 2017 on the file of the Chief Judicial Magistrate
Court, Karur, order dated 26.12.2017 and in C.A.Nos.116 and 117 of 2018
respectively on the file of the Additional Sessions Court/Fast Track Mahila
Court, Karur, dated 28.02.2019 and set aside the same.
1/23
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For Petitioner : Mr. S.Vinoth Kumar,
Govt. Advocate(Crl.Side)– in both the RCs
Respondent : Mr.N.R.Elango, Senior Advocate for
Mr.V.Anandhamoorthy – in both the RCs
*******
COMMON ORDER
These criminal revisions have been filed against the concurrent
judgment of conviction and sentence passed by the learned Chief Judicial
Magistrate, Karur, in S.T.C.Nos.14 and 13 of 2017 dated 26.12.2017, as
confirmed by the learned Additional Sessions Judge, Fast Track Mahila
Court, Karur, in C.A.Nos.116 and 117 of 2018, respectively dated
28.02.2019.
2 The petitioner in both the revisions is complainant and the
respondent is accused. It is the case of the complainant that the respondent
is running a Factory, in which, in the primary crusher, large size stone was
crushed into smaller one and the same were conveyed by beltconveyor. The
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said beltconveyor was not provided with handrails and railings on the open
side of the walk-way. Therefore on 08.09.2016 at about 3.00 p.m., when the
conveyor was in operation, one M.Balasubramanian, employee of the
respondent, has fallen down into tail end pulley of the conveyor, due to
which, his right hand was caught between conveyor belt and roller drum
and then his body was dragged into the roller drum, which resulted in his
death on the spot. The said accident came to the knowledge of the
complainant through Malaimalr news paper on 09.09.2016 and hence the
petitioner made inspection in the respondent's Factory on 10.09.2016 and it
was found that the respondent/accused had violated the safety measures
contemplated under the Factories Act, 1948, and the Tamil Nadu Factories
Rules, 1950.
3 On noticing the violations of the mandatory provisions under
the Factories Act, 1948, and the Tamil Nadu Factories Rules, 1950, by the
occupier and Manager, P.W.1 lodged two complaints on 08.12.2016 under
Section 105 of the Factories Act, 1948, before the learned Chief Judicial
Magistrate, Karur, one is for contravention of Section 88 r/w Rule 96(1)(2),
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Section 112 r/w Rule 103 of the Factories Act, 1948, and Tamil Nadu
Factories Rule, 1950 and the other complaint is for the offence under
Section 6(1)(d) r/w Rule 4(1)(2)(3), Section 21(2) r/w Rule 53(1), Schedule
XI Part A Item 2(3) r/w Section 7(A)(1)(2)(d) r/w Section 92 of the
Factories Act, 1948, and Tamil Nadu Factories Rule, 1950, and the same
were taken on file in S.T.C.Nos.14 and 13 of 2017 by the learned Chief
Judicial Magistrate, Karur.
4 To prove the charges, the complainant was examined as P.W.1
and 15 documents were marked as Exs.P1 to 15. The trial Court, after trial
and hearing the arguments advanced on either side, by judgments dated
26.12.2017, acquitted the accused/respondent from all the charges, against
which, the complainant preferred appeals before the learned Additional
Sessions Judge, Fast Track Mahila Court, Karur, in C.A.Nos.116 and 117 of
2018. The learned Additional Sessions Judge, by judgments dated
28.02.2019, dismissed the appeals and confirmed the acquittal of the
respondent/accused. Aggrieved over the concurrent judgments of acquittal,
the complainant is before this Court, with the present criminal revision
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cases.
5 The learned Government Advocate (Crl.Side) for the petitioner
would submit that the respondent is an occupier and Manager of the
Factory, who has been arrayed as accused. The District Collector executed
lease deed in favour of the accused and the license is covered under the
provisions of “The Mines and Mineral Act”. The respondent obtained
consent letter Ex.P9 from the Tamil Nadu Pollution Control Board to
operate industrial plant, which will not absolve the accused from the
criminal case registered against him, since he violated the provisions under
the Factories Act, 1948, and the Tamil Nadu Factories Rules, 1950. The
petitioner came to know about the death of the victim, which took place
within the premises owned by the accused and hence made inspection,
wherein, it found that the respondent violated the mandatory provisions
under the Factories Act, 1948. Hence a show cause notice has been issued
to the respondent by the authorities concerned constituted under the
Factories Act, 1948. Both the Courts below have failed to consider the facts
while they acquitting the accused.
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5.1 The trial Court given a finding that the respondent will not
come under the definition of Factory as per the provisions of the Factories
Act, 1948, and acquitted the respondent/accused, whereas the appellate
Court found that the respondent company is a Factory, comes under the
Factories Act, 1948, but, acquitted the accused on the ground of non
examination of complainant and non recording of the complainant's sworn
statement.
5.2 The lower appellate Court failed to consider that Section 200
Cr.P.C. is very clear that when the complaint is made in writing, the
Magistrate need not examine the complainant. In the present case, the
complainant filed complaint in writing before the Magistrate only in the
official capacity and hence the question of examination of the complainant
before the Magistrate does not arise. Therefore the finding of the lower
appellate Court that non examination of complainant is fatal to the case of
the complainant and acquitting the accused on that ground is perverse.
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5.3 The trial Court has failed to look into the safety provisions
contemplated under the Act, which has been violated by the respondent,
which resulted in the workman fatal accident took place in the Factory of
the respondent.
.
5.4 The accused company is a dangerous operations Factory,
within the meaning of section 2(k), 85 and 87 of the Factories Act, 1948
along with Ex.P2 G.O.Ms.No.1248, Labour Department, dated 13.06.1988.
The lower appellate Court has failed to consider the fact that the licensing
authority under the Act is the Joint Director of Industrial Safety and Health
(the Deputy Chief Inspector of Factories) only. As per the provisions of the
Factories Act, 1948, handrails or railings should be provided on open sides
of the walkway along the entire length of the belt to prevent workers from
falling into the conveyor belt, whereas the accused in his Factory did not do
so. The trial Court failed to note Section 85(1) of the Factories Act, 1948
and the Government Order Ex.P2, wherein it is declared that all or any of
the provisions of this Act shall apply to any place where manufacturing
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process is carried on and the petitioner's Factory is manufacturing road
material (Jalli), but without appreciating the above facts, the trial Court
erroneously acquitted the accused observing that the respondent company is
not a Factory.
5.5 The Tamil Nadu Factories Rule 95 Schedule XIX provisions
applies to stone crushing operations being done in the Factory of the
respondent/accused. The complainant/P.W.1 has categorically deposed that
only after their inspection, they reached a conclusion that the accused herein
alone is responsible for the accident and the death occurred in the Factory
premises of the respondent.
5.6 Both the Courts below have failed to consider the above facts
and erroneously acquitted the accused, which warrants serious interference
of this Court.
6 The learned Senior Counsel for the respondent would submit
that the revisions itself are not maintainable and the petitioner has miserably
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failed to prove that the Company runs by the respondent is a Factory falls
under the Factories Act, 1948. Further the learned Senior Counsel relying
on the decision of the Hon'ble Supreme Court reported in (2001) 2 SCC
496 in the case of Lakshmani Stone Products and Ors vs. Union of India
and Ors contended that stone quarry although engaged also in cutting or
chipping stones to appropriate sizes either manually or mechanically before
marketing them is to be an establishment covered by the notifications dated
12.12.1977 and 19.02.1977 and not a Factory as alleged by the petitioner.
6.1 The learned Senior Counsel would further submit that the
scope of revision is very limited and the Revisional Court cannot re-
appreciate the evidence and give its finding and it can only see as to
whether there is any perversity in appreciation of evidence by the Court
below or not. Furthermore in criminal jurisprudence, especially, while
dealing with the petition filed against the order of acquittal, when two views
are possible, the Revision Court cannot take the other view and convict the
accused. Further the revision itself is barred under Section 401(3) Cr.P.C.
either on merits or by technicality. The appellate Court re-appreciated the
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evidence independently and given different reason for acquittal and
therefore the revisions are liable to be dismissed.
7 Heard the learned Government Advocate(Crl.Side) appearing
for the petitioner and the learned Senior Counsel for the respondent and
perused the materials available on record.
8 Admittedly the petitioner made two complaints against the
respondent before the Chief Judicial Magistrate, Karur, for violations of the
provisions under the Factories Act, 1948. The victim met with an accident
during the course of employment due to violations of the safety measures
contemplated under the provisions of the Factories Act, 1948, by the
respondent and died on 08.09.2016. The main contention of the petitioner
is that even the accident was not informed to the competent authority by
reporting under Form-18 and the petitioner came to know about the
accident only through news reported in Malaimalar Newspaper on
09.09.2016 and thereafter made inspection in the Factory of the respondent
and found violations of the provisions under the Factories Act, 1948, and
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the Tamil Nadu Factory Rules, 1950. Therefore show cause notice was
issued, but there was no reply within the stipulated time and hence the
petitioner filed two complaints, one is for violations of safety measures
under the Act, which resulted in death of the victim, i.e. Section 6(1)(d) r/w
Rule 4(1)(2)(3), Section 21(2) r/w Rule 53(1), Schedule XI Part A Item 2(3)
r/w Section 7(A)(1)(2)(d) r/w Section 92 of the Factories Act, 1948, and
Tamil Nadu Factories Rule, 1950, and the other one is for contravention of
Section 88 r/w Rule 96(1)(2), Section 112 r/w Rule 103 of the Factories
Act, 1948, and Tamil Nadu Factories Rule, 1950, before the learned Chief
Judicial Magistrate, Karur.
9 It is an admitted fact that while the petitioner made inspection
in the respondent's Factory on 10.09.2016, found the respondent utilising
516.5 horse power engine and recorded statements of employees, who were
working and found the respondent was not maintaining the Muster Roll in
Form-25 for all the employees as per Rule 103 of the Tamil Nadu Factories
Rule, and ever after demanding the same by the petitioner, the respondent
did not produce. The petitioner also collected the copy of FIR Ex.P10
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registered regarding the accident. Even till the filing of complaint, the
respondent did not register his Factory and obtain license for the same by
paying the prescribed fee through Demand Draft as per the Factories Act,
1948. The petitioner has stated that the respondent violated the provisions
under the Factories Act, 1948, and Rules by not following the safety rules,
not informing the accident, not submitting the prescribed Forms-18 and
Form-25. Therefore the respondent committed offence under the Factories
Act, 1948 and is liable to be punished for the above said deviations found in
the respondent's factory under Section 92 of the Factories Act, 1948.
10 Even though the respondent's Factory did not fall under
Section 2(m) of Factories Act, 1948, however, it is Factory under Section
85(1) of the Factories Act, 1948 r/w G.O.Ms.No.1248 dated 13.06.1998,
which was also marked as Ex.P2. Though the trial Court failed to consider
the above facts, the appellate Court re-appreciated the evidence and rightly
concluded that the respondent's company is a Factory, but, however
acquitted the respondent for different reason.
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11 The respondent admitted that he was running crushes unit with
less than 10 workers and six members were working on the date of
inspection by the petitioner. Even though, during trial, the respondent
denied the allegations of the petitioner, they have not taken defence of
technicality that the respondent's company is not a Factory.
12 It is the main contention of the learned Senior Counsel for the
respondent that the petitioner has no authority to take action against the
respondent under the Factories Act, 1948, since the respondent unit was not
registered under the Factories Act, 1948, and if at all they found any
violations, they can only close the unit and they cannot fasten criminal
liability and punish the respondent.
13 It is to be noted that even though the appellate Court given a
finding that the complainant was not examined, which is fatal to the case of
the petitioner, but rightly held that even though respondent's unit was not
registered under the Act, a combined reading of Section 2(k) Section 85(1),
87(a), and Rules 95 Schedule XIX and 96(1) along with Ex.P2 undoubtedly
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the respondent unit is a Factory, which falls under the Factories Act, 1948,
for the purpose of filing complaint under the provisions of the Factories
Act, 1948, and the said finding of the appellate Court was not challenged by
the respondent. Admittedly, the respondent is operating a crushing unit
where larger stones are crushed into smaller ones. Furthermore, the
machinery utilized in the factory includes a 516.5 horsepower engine and
the machine crushes large stones into smaller ones, which are then
conveyed by a belt conveyor. It is also evident that dangerous operations
are involved; as such, the nature of the work falls under hazardous
processes. Even though the petitioner contended that lesser than ten
workmen have involved, Section 85(1) of the Factories Act, 1948, clearly
states that when a manufacturing process is carried out with the aid of
power, or is ordinarily so carried on, even with lesser than ten workmen, the
place where they are working can still be notified as a factory. At this
juncture, it would be useful to refer the relevant provisions of the Factories
Act, which are as follows:
Section 2(k)(i)
(k) “manufacturing process” means any process for— (i) making,
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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
Section 85(1)
“85. Power to apply the Act to certain premises.—(1) The
State Government may, by notification in the Official Gazette,
declare that all or any of the provisions of this Act shall apply to
any place wherein a manufacturing process is carried on with or
without the aid of power or is so ordinarily carried on,
notwithstanding that— (i) the number of persons employed therein
is less than ten, if working with the aid of power and less than
twenty if working without the aid of power, or “
Section 87(a)
87. Dangerous operations.—Where the State Government is
of opinion that any 1 [manufacturing process or operation]
carried on in a factory exposes any persons employed in it to a
serious risk of bodily injury, poisoning or disease, it may make
rules applicable to any factory or class or description of factories
in which the 1 [manufacturing process or operation] is carried on
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— (a) specifying the 1 [manufacturing process or operation] and
declaring it to be dangerous;
Rule 95 Schedule XIX
1. Application: This Schedule shall apply to all factories or
parts of factories in which manipulation of stone or any other
material containing free silica is carried on. This shall include the
manufacturing process pertaining to Stone Crushers, Gem and
Jewellery, Slate Pencil Making, Agate Industry, Cement Industry,
Potter and Glass Manufacturing.
Rule 96(1)
96 Notification of accidents (1) when any accident or
dangerous occurrence specified in the schedule occurs in a factory
the manager of the factory shall forthwith send notice thereof by
telephone, special messenger or telegram to the Inspector and the
Chief Inspector;
In view of the above legal provisions, the contention of the learned
Senior Counsel that the respondent company is not a Factory, is not
acceptable and the respondent violated the mandatory provisions of the
Factories Act, 1948.
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14 It is seen that the appellate Court confirmed the acquittal of the
respondent on two grounds one is non examination of the complainant by
the Magistrate and non recording of sworn statement of the complainant
and the other reason is that the petitioner does not have any authority to
take action against the respondent under the Factories Act, 1948.
15 The lower appellate Court failed to understand Section 105 of
the Factories Act, 1948 and Section 200 Cr.P.C. and misconstrued the law,
which resulted in acquittal of the respondent, who in fact committed offence
under the Factories Act, 1948. Section 105 of the Factors Act enable the
petitioner to file a complaint against the respondent before the Magistrate
and better understanding the same is extracted hereunder:
“105. Cognizance of offences.—(1) No Court shall take
cognizance of any offence under this Act except on complaint by,
or with the previous sanction in writing of, an Inspector. (2) No
Court below that of a Presidency Magistrate or of a Magistrate
of the first class shall try any offence punishable under this Act.”
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16 Therefore the petitioner is the competent authority to initiate
criminal action for violations of safety measures contemplated under the
Factories Act, 1948, and the Tamil Nadu Factories Rules. Further it is
useful to refer Section 200 Cr.P.C., which reads as follows.
“200. Examination of complainant - A Magistrate taking cognizance
of an offence on complaint shall examine upon oath the complainant and the
witnesses present, if any, and the substance of such examination shall be
reduced to writing and shall be signed by the complainant and the witnesses,
and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate
need not examine the complainant and the witnesses—
(a) if a public servant acting or purporting to act in the discharge of
his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 192:
Provided further that if the Magistrate makes over the case
to another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not re-
examine them.
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17 Therefore it is clear that when the complaint is reduced to
writing and signed by the complainant, the Magistrate need not examine the
complainant. In this case, the complaint was in writing, which was given by
P.W.1 while discharging official duty for violation of statutory provisions
under the Factories Act, 1948. Therefore mere non examination of the
complainant is not fatal to the case of the complainant and the decision
referred to by the appellate Court reported in 2017 MWN (Cr.)197 in the
case of Soumitra Hazra vs. The Inspector of Factories, is not applicable to
the facts of the present case on hand. Hence in the present case, the
Magistrate shall determine whether the complainant has established its case
through the documents produced by the complainant, which are only
official documents.
18 From Ex.P11 the Postmortem report of the deceased, Ex.P10
FIR, and Exs.P6 to 8, the statements recorded from the employees of the
respondent's Factory, clearly show that the victim died during the course of
employment under the respondent, due to non providing of safety measures.
The respondent has not proved contra to the complainant's case that they
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followed mandatory provisions under the Factories Act, 1948 and given
reply to the show cause notice.
19 In view of the above observations, this Court finds there is
perversity in appreciation of evidence and legal provisions by both the
Courts below and the appellate Court misconstrued the statutory provisions
under Section 200 Cr.P.C. Further the decision referred to by the learned
Senior Counsel for the respondent is not applicable to the facts of the
present case on hand.
20 Therefore this Court is inclined to set aside the concurrent
judgment of both the Courts below acquitting the respondent. However, this
Court being a Revisional Court, cannot convict the respondent, since the
revisions are being filed against the order of acquittal, as per Section 401(3)
Cr.P.C., which reads as follows:
“401. High Court's powers of revision
(3) Nothing in this section shall be deemed to authorise
a High Court to convert a finding of acquittal into one of
conviction.”
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21 Therefore both the order and judgment of the trial Court and
the appellate Court are hereby set aside and the matter is remitted back to
the appellate Court. The appellate Court is directed to re-hear the matter and
reverse the findings of the trial Court, keeping in mind the views and
observations expressed by this Court in these revisions and dispose of the
appeals in accordance with law.
22 With the above observations and directions, these Criminal
Revision Cases are disposed of.
05.03.2025
Index : Yes/No
cgi
To
1. The Chief Judicial Magistrate Court, Karur.
2. The Additional Sessions Court/Fast Track Mahila Court, Karur.
3. The Public Prosecutor, High Court of Madras.
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P.VELMURUGAN, J.,
cgi
Pre-Delivery Order in
Crl.R.C (MD).Nos.488 and 489 of 2021
05.03.2025
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