Rabindra Rout & Others vs Unknown
2021 Latest Caselaw 3415 Ori

                    CORAM :- HON'BLE SHRI JUSTICE S.PUJAHARI
                                 CRLMC NO.2072 OF 2010

                          Rabindra Rout & others.
                                                            ........ Petitioners
                                -Versus-

                          State of Odisha.
                                                            ........ Opp.party

                                             ORDER

17. 09.03.2021 This is an application filed under Section 482

of Cr.P.C. for quashing the order dated 14.10.2009

passed by the learned J.M.F.C., Chandbali in G.R.

Case No.1064 of 2007 framing charge under

Sections 287/304-A/34 of I.P.C. against the

accused-petitioners.

2. Heard the learned counsel for both the parties

and perused the impugned order vis-à-vis the

relevant papers on record.

3. At the outset, it be mentioned here that as per

the true copies of the death certificates produced by

the learned counsel for the petitioners, the petitioner

- Niranjan Jena died on 17.01.2016 and the

petitioner - Banwarilal Agarwal died on 10.07.2014.

There being no dispute on record regarding death of

those two accused-petitioners, the proceeding

against them in the Court below stands abated.

4. Notwithstanding the above, it is the contention

of the learned counsel for the petitioners that not

only the allegations made by the prosecution vide the

charge-sheet submitted by Chandbali Police make

out no case under the I.P.C. against the petitioners,

launching of a parallel prosecution at the instance of

police vis-à-vis the proceeding already initiated

under Section 92 of the Factories Act vide 2(C) C.C.

Case No.62 of 2007 before the same learned

Magistrate, cannot be maintained. Admittedly, while

for the selfsame incident, on the report of the father

of the deceased - Renti Sirika, police registered a

case and on completion of investigation, submitted

charge-sheet leading to the impugned order which is

under challenge, on a complaint being lodged by the

Asst. Director of Factories and Broiler, Cuttack,

Zone-III, 2(C) C.C. No.62 of 2007 was registered, and

as per the order dated 05.11.2007 the learned

J.M.F.C., Chandbali has taken cognizance of offence

under Section 92 of the Factories Act against one

Khetrabasi Nayak, shown to be the Manager of the

Factory, namely, M/s. Shree Hanuman Rice Mill

where the alleged incident took place.

5. It is, however, the contention of the learned

Addl. Standing counsel appearing for the State that

since for different offences both the G.R. Case and

the complaint case have been registered, the

impugned order passed in the G.R. Case warrants no

interference, inasmuch as the accidental death of the

daughter of the Informant inside the Factory

premises is an admitted fact.

6. As it reveals from the papers on record,

Kumari Renti Sirika, daughter of the Informant was

working as a helper on daily wage basis in the

aforesaid Factory premises, and that on 03.08.2007

at 8.40 p.m. she died when her wearing cloth came

in contact with the shafting roller and she got

pressed in polisher. According to the prosecution,

the death was caused due to absence of safety

measures or wire fence near the shafting rollers and

polisher to prevent danger inside the factory

premises, and that the owner and Manager of the

Factory and the machine operator, namely, Rabindra

Rout were responsible and liable for the said

incident. To reiterate, the case against the owner and

machine operator as charge-sheeted by police stands

abated and it is now to be seen as to whether the

impugned order as against the petitioner no.1 -

Rabindra Rout shown to be the Manager of the Mill

can sustain.

7. 2(C) C.C. No.62 of 2007 has been registered

against one Khetrabasi Nayak shown to be the

Manager of Hanuman Rice Mill whereas police has

shown the present petitioner no.1 - Rabindra Rout

as the Manager and, accordingly, charge-sheeted

him. Hence, there is a factual controversy as to who

was the Manager of the Factory at the relevant time.

Be that as it may, it has already been held by this

Court in the case of Sri Jaiprakash Pandey and

others vrs. State of Orissa, reported in (2008) 41

OCR 550 that for selfsame incident, there cannot be

two prosecutions, one under Section 92 of the

Factories Act and the other under Section 304-A and

other Sections of IPC. Referring to a judgment of

Jharkhand High Court in the case of Ashwini

Kumar Singh and another vrs. State of

Jharkhand, reported in 2007 LLR 866, the single

Bench of this Court in the case of Sri Jaiprakash

Pandey (supra) held as follows:-

"xxxxxxxx Whenever, there is parallel provision in a general statute and special statute, the provision of the special statute will override the general statute. Keeping this in mind, the Jharkhand High Court in Ashwini Kumar Singh (supra) ruled that a police case under Sections 287, 288, 304-A and 338, I.P.C. is not maintainable, when for the selfsame incident a case under Section 92 of the Factories Act is pending. I am in respectful agreement with the view expressed in that case that for the self same incident there cannot be two prosecution. Since the entire allegation is covered in Criminal Case No.1392 of 2008, there is no scope for continuance of proceeding of G.R. Case No.274 of 2008 against the petitioners. Therefore, the proceeding of G.R. Case No.274 of 2008 pending in the Court of learned S.D.J.M., Jharsuguda is quashed. The other case under Section 92 of the Factories Act against the petitioners will never continue."

8. The present case being similarly situated, the

impugned order of framing charge against the

petitioner no.1- Rabindra Rout cannot be sustained.

9. Accordingly, this CRLMC is allowed

discharging the petitioner no.1- Rabindra Rout in

G.R. Case No.1064 of 2007 with quashment of the

proceeding of the said case.

...........................

S.Pujahari, J.

MRS