Orissa High Court

Ramesh R Pai & Another vs State Of Odisha & Another ....... ... on 29 January, 2025

             THE HIGH COURT OF ORISSA AT CUTTACK

                               CRLMC No. 2834 of 2022
 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973)




Ramesh R Pai & another                        .......                     Petitioners

                                             -Versus-

State of Odisha & another                       .......              Opposite Parties


For the Petitioners                     : Mr. S. K. Dash, Advocate

For the Opp. Party No.1 :                Mr. S.R. Roul, Addl. Standing Counsel



CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA


 Date of Hearing: 20.09.2024 ::                     Date of Judgment: 29.01.2025

S.S. Mishra, J.

1. In the present petition, the petitioners have invoked the

jurisdiction of this Court under Section 482 of the Cr.P.C. seeking

quashing of the entire criminal prosecution launched against them and

the order dated 31.08.2020 passed by the learned S.D.J.M., Dhenkanal

in 2(c)CC No.11(A) of 2020, whereby the learned Court below has taken cognizance of the offence punishable under Section 92 of the

Factories Act 1948 and accordingly summons have been issued to the

accused to face the trial.

2. The complaint case has been initiated at the instance of the

opposite party No.2, the Assistant Director of Factories and Boilers,

Dhenkanal Zone, Dhenkanal.

3. The allegation against the petitioners in the complaint, is that, the

petitioner No.1 was the Director and COO whereas the petitioner No.2

is the Head O&M of M/s. GMR Kamalanga Energy Limited,

Dhenkanal and they were working in the said company since long.

The opposite party No.2 being the Assistant Director of Factories and

Boilers, Dhenkanal Zone, Dhenkanal filed a complaint case before the

Court of the learned S.D.J.M., Dhenkanal which was registered as 2(c)

CC No.11(A) of 2020. In the said complaint, he alleged that M/s.

GMR Kamalanga Energy Limited, Dhenkanal for the purpose of

transportation of ash from Ash Pond to different locations, gave

service order to one M/s. Samal Builders Pvt. Ltd. On 01.06.2020 at

about 9.14 P.M., one Adikanda Behera, who was working as a truck

driver of M/s. Samal Builders Pvt. Ltd. entered with his truck through

material gate and parked his vehicle near the ash loading point and

was waiting there for his turn. The loading of the ash into the dump

truck was done through an Excavator. The complainant further alleged

that, after reaching Lagoon -1, Adikanda Behera parked his truck 20

mtrs away from the loading point queuing behind two other dump

trucks. At 11:00 P.M., Adikanda Behera stepped out to attend the call

of nature. As the loaded truck left, the next vehicle reversed to take

position for loading. While reversing, the driver of the truck namely

Sisir Kumar Chhatar heard a sound and found Adikanda Behera lying

near the left rear wheel of his truck. The Excavator helper informed

his supervisor at 11:15 P.M., who rushed to the scene and despite

immediate rescue efforts, Adikanda Behera was declared dead at the

District Headquarters Hospital, Dhenkanal. Hence, this case.

4. Heard Mr. Soubhagya Kumar Dash, learned counsel for the

petitioners and Mr. S.R. Roul, learned Additional Standing Counsel

appearing for the opposite party No.1-State.

5. The fatal accident took place on 01.06.2020 at about 11.00 P.M.

at the Lagoon-1 of ash loading point. On the next day, i.e., on

02.06.2020 the incident was informed to the concerned authority over

phone. Subsequent thereto, the information was also furnished in the

prescribed format, i.e., Form No.18 on 02.06.2020.

6. On the basis of the aforementioned factual background, the

Opp. Party No.2 had filed a complaint before the learned S.D.J.M,

Dhenkanal on 25.08.2020 which was registered as 2(c)CC No.11(A)

of 2020. Accordingly, the learned Court below has taken cognizance

of the offence under Section 92 of the Factories Act, subsequently

summons have been issued to the accused persons to appear and face

the trial.

7. Mr. Dash, learned counsel for the petitioners has attacked the

impugned order by which cognizance of the offences punishable

under Section 92 of the Factories Act has been taken by the learned

Court below, primarily on the ground that a parallel proceeding has

also been initiated regarding the same incident by registering an F.I.R.

at the instance of the wife of the deceased. The said G.R. Case No.605

of 2020 has been registered for the alleged commission of offences

punishable under Sections 279/304-A of the I.P.C.

Mr. Dash, learned counsel for the petitioners has contended that

registration of two different cases under two different provisions of

law pertaining to the same incident is prejudicial and would not

sustain the scrutiny of law. Apart from that, Mr. Dash, has also

ventured into the merits of the case to impress this Court that prima

facie no case is made out against the petitioners.

8. In so far as the first contention is concerned, it is eminent from

the record that the F.I.R. has been registered at the instance of the wife

of the deceased being G.R. Case No.605 of 2020 arising out of

Kantabania P.S. Case No.52 of 2020 for the offences under Sections

279/304-A of the I.P.C. against one Shishira Chhatar. The present

petitioners are not arrayed as accused in that case. The fact scenario of

the G.R. Case No.605 of 2020 registered against one Shishira Chhatar

is running in completely a different parlance whereas the allegation in

the present complaint case is pertaining to the offence under Section

92 of the Factories Act. The petitioners are the occupier and are liable

for the offence under Section 92 of the Factories Act, which is

absolutely a separate offence under the special statute. Therefore, the

petitioners cannot take the plea of dropping of the present proceeding

in view of the proceeding being initiated against a third person by the

wife of the deceased under the general provision of law i.e. the Penal

Code.

9. Mr. Dash, has relied upon the judgment of the Hon'ble Supreme

Court in the case of J.K. Industries Limited Etc. vrs. The Chief

Inspector of Factories and Boilers and others reported in AIR

Online 1996 SC 1129. The relevant part of the said judgment relied

upon is reproduced as under:-

Thus, we are of the opinion that proviso (ii) to Section 2(n) when considered in relation to Section 92 of the Act does not offend Article 21 of the Constitution of India either.

That Section 92 is a perfectly valid piece of legislation insofar as it makes the occupier or manager of a factory guilty of an offence for contravention of any of the provisions of the Act or the rules made thereunder, even if the actual contravention may not have been committed by the occupier or the manager, is not disputed or doubted before us and, therefore, we are unable to appreciate how the provision contained in proviso (ii) to Section 2(n) can render the said proviso read with Section 92 invalid or unreasonable or how it

offends Article 19(1)(g) of the Constitution by defining an occupier to be only the director of the company.

Article 19(1)(g) of the constitution guarantees to a citizen the right to practice any profession or to carry on any occupation, trade or business. This right, however, is subject to Clause (6) of Article 19 which lays down that nothing in sub-Clause (g) of Article 19(1) shall affect the operation of any existing law insofar as it imposes or prevents the State from making any law imposing in the interest of the general public reasonable restrictions on the exercise of the right. Clause (6) of Article 19 is intended to strike a balance between individual freedom and social control. Keeping in view the object of the Act, we must look to the reasonableness of the provision requiring the nomination of a director as the occupier of the factory under Section 7 of the Act, with a view to determine whether proviso (ii) to Section 2(n) has a rational nexus with the object which the legislature seeks to achieve. It was, as already observed, with a view to secure proper and effective enforcement of the provisions of the Act and the Rules made thereunder, that the legislature considered it appropriate to fasten the liability for proper implementation of the Act on one of the directors by insisting that in the case of a company, which owns the factory, one of the directors shall be deemed to be the occupier for all purposes, including prosecution and penalty in respect of offences committed under the Act. The Legislature has attempted to plug the loopholes, which existed earlier and enabled the directors to escape their liability by passing on the buck, as they say, to an employee. It is much too obvious that when top persons of the company are made conscious of their responsibilities and duties for the implementation of the safety and welfare measures in a factory and to carry out the duties prescribed under the Act, at the pain of punishment in case they choose to overlook, there are much greater chances that proper care would be taken

for maintenance of the factory, particularly in regard to the safety measures and welfare of workers.

Relying upon the judgment of the Hon'ble Supreme Court in

the case of J.K. Industries Limited Etc. (supra), Mr. Dash, learned

counsel for the petitioners contended that the Inspector of factories

have overlooked the provisions of Section 97 and 111 of the Factories

Act at the time of inspection.

10. Mr. Dash, learned counsel for the petitioners has further relied

upon the judgment of the Bombay High Court in the case of Mylan

Laboratories Limited vrs. The State of Maharashtra, reported in

2021 LCL 9785 Bombay and contended that the victim/deceased is

not a worker within the meaning of Section 2(I) of the Factories Act.

Therefore, there would not be any liability of the petitioners under

Section 92 of the Factories Act towards deceased worker. He has

relied upon paragraphs-12 & 14 of the said judgment, which reads as

under:-

<12. In the matter in hand, the applicant under takes manufacturing of medicines. The construction of a staircase for a building near the main gate was undertaken by the applicant but by engaging the construction Company. The deceased was an employee of

that Construction Company and was not directly engaged by the applicant in any activity much less touching the manufacturing process. So, even if the definition of worker is borne in mind, the deceased was not employed either directly or through any agency for utilizing his services in manufacturing process of the drugs, which is a sine qua non for him to be a worker under that definition. This is what has been precisely held in the cases of State of Kerala Vrs. V.M. Patel and Richard Rushton (supra). Even the Single Judges of the Karnataka High Court have taken similar view in the case of D. Kumarswamy and Ors. Vs. State of Karnataka, MANU/KA/3011/2013, Aristides Protonotarios and Ors. Vs. State of Karnataka; MANU/KA/6589/2019 and Shailendra K. Jain and Ors. Vs. State of Karnataka; MANU/KA/0626/2020. In view of such state of affairs, even if the allegations in complaint are accepted at its face value, it cannot be said that the applicant was having any duty towards the deceased as is contemplated under Section 7-A of the Act so that a punishment under Section 92 can be meted out.

14. True, it is, as has been emphatically laid down in the case of S.M. Datta (supra) and followed in the case of Skoda Auto Volkswagen Indian Pvt. Ltd. (supra) even if the principles laid down in the case of State of Haryana V/s Bhajan Lal: 1992 Supp (1) SCC 335, are to be followed, it is only in the exceptional cases that this Court is expected to step in and quash a proceeding under Section 482 of the Code of Criminal Procedure. The Court has to be cautious and only if it results in abuse of the process of law that the complaint should be quashed.

Cautioning ourselves with these riders put by the Supreme Court in the case of Bhajan Lal, S.M. Datta and Skoda Auto (supra) the peculiar facts and circumstances of the matter in hand clearly demonstrates that so far as Section 7-A (2) of the Act is concerned, the deceased was not a worker within the meaning of Section 2(1) of the Act and consequently there would be no liability of the applicant towards him. So far as alleged violation of Rule 4(2) of the Rules is concerned, the complaint is vague even in respect of the allegations and the documents annexed to the

complaint also do not substantiate the allegations muchless prima facie, rather there is not a single document annexed to the complaint to prima facie subscribe to its genuinesses in respect of the alleged violation of the approved plan. In my considered view, therefore, the present case constitutes one such exception carved out by the Supreme Court where this Court should invoke the powers under Section 482 of the Code of Criminal Procedure in quashing the complaint.=

11. Mr. Dash, further contends that similar view is echoed by the

Hon'ble Supreme Court in the case of S.K. Sinha, Chief Enforcement

Officer vs. Videocon International Ltd. and Ors., reported in 2008

INSC 105 and held thus:-

<The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a Court or a Judge, it connotes to take notice of 'judicially'. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

'Taking cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.

Chapter XIV (Sections 190-199) of the Code deals with 'Conditions requisite for initiation of proceedings'. Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) thereof is material and may be quoted in extenso.

1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.=

12. I have carefully gone through the documents placed on record

and also analyzed the judgments cited at the Bar. The contention

raised by the petitioners in the present petition is poised with the

disputed facts. While considering the legality of the order taking

cognizance by the learned Court below, this Court need not venture

into the disputed questions of facts. The other ground on merit raised

by the learned counsel for the petitioners is also not tenable under law

because it is admitted case on record that the petitioners are the

occupiers of the factory, where the incident had taken place and the

defense raised by the learned counsel for the petitioners to explain

their role needs to be gone into and thrashed out in the trial only. It is

apt to rely upon the judgment of the Hon'ble Supreme Court in the

case of The State Of Gujarat vs Afroz Mohammed Hasanfatta

reported in (2019) 20 SCC 539 under paragraph-21 of its judgment

stated that :

21. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is <there is sufficient ground for proceeding.....=; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is < there is ground for presuming that the accused has committed an offence..... =. At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.

Applying the above principle laid down by the Hon'ble

Supreme court to the present case, the material on record provides

sufficient grounds for issuance of summons under Section 204 of

Cr.P.C. Further, the defence raised by the petitioners regarding their

role in alleged incident pertains to the merits of the case, which can

only be adjudicated upon in the trial.

13. Therefore, at this stage, I am not inclined to entertain the

present petition. Accordingly, the CRLMC is dismissed.

However, dismissal of this petition shall not preclude the

petitioners for resorting to any other remedy available to them under

law. If any remedial measure under law is mooted by the petitioners in

application, the same shall be decided on its merit without being