Orissa High Court

Rajeev Mittal vs State Of Odisha And Another on 15 July, 2025

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                            CRLMC No. 2153 of 2024

            Rajeev Mittal                       ....         Appellant(s)
                                 Mr. Haripad Mohanty, Advocate
                                 -versus-
            State of Odisha and another    .... Respondent(s)


                                                    Mr. A.K. Apat, AGA

                                      CORAM:

                       JUSTICE SIBO SANKAR MISHRA

                                   ORDER

Order No.                         15.07.2025
                            I.A. No. 1382 of 2025
   03.      1.       This   is   an   application    for   recall     and

modification of the judgment dated 10.04.2025 passed in CRLMC No. 2153 of 2024.

2. The petitioner has moved the present I.A. seeking recalling of the judgment and order dated 10.04.2025, whereby this Court dismissed the CRLMC.

3. Learned counsel for the petitioner submitted that due to the mis-calculation of limitation period from the date of incident to the date of filing the complaint case, the error has occurred. He has taken me to the complaint, at the extreme right at the top of the complaint, it is found that the Sub-Divisional

Magistrate, Athagarh has received the complaint on 25.08.2018. He has also placed on record the register maintained by the Sub-Divisional Magistrate, Athagarh, which indicates that the complaint indeed was filed on 25.08.2018. Taking me to the cognizance order, the learned counsel for the petitioner submits that the learned Court below has taken cognizance of the offence on the same day when the complaint was filed, i.e., on 25.08.2018. However, the confusion really occurred because of the fact that the complaint appears to have been prepared and signed by the complainant on 02.08.2018. Although the complaint was ready to be filed on 02.08.2018, but it appears that the complaint was presented only on 25.08.2018 and on the same day, the cognizance of offence has been taken. That is the reason, the confusion has arisen which led to the dismissal of the CRLMC. In the light of the aforementioned, the learned counsel for the petitioner seeks recall of the judgment and order dated 10.04.2025. If 25.08.2018 is taken on record as the limitation period, the complaint is completely time barred.

4. In view of the aforementioned, the judgment dated 10.04.2025 is recalled.

5. The petitioner in the aforementioned I.A. has made an additional prayer for modification of the judgment and order dated 10.04.2025.

6. In view of the above, The I.A. is allowed and the judgment and order dated 10.04.2025, passed by this Court in CRLMC No. 2153 of 2024 is modified and be read as under: -

"1. In the present petition, the petitioner has invoked the jurisdiction of this Court under Section 482 of the Cr.P.C. seeking quashing of the entire criminal prosecution launched against him and also challenged the order dated 25.08.2018 passed by learned S.D.J.M., Athgarh, in 2(c) CC No.08 of 2018, whereby the learned Court below has taken cognizance of the offence punishable under Section 92 of the Factories Act, 1948 and accordingly summons has been issued to the accused-petitioner to face the trial.

2. Heard Mr. Haripad Mohanty, learned Counsel appearing for the petitioner and Mr. S.N. Biswal, learned Additional Standing Counsel appearing for the opposite party-State.

3. The complaint case has been instituted at the instance of the opposite party No.2, the Assistant

Director of Factories and Boilers, Cuttack Zone-II, Cuttack.

4. The allegation in the complaint, inter alia, is that M/s Aarti Steels Ltd. is a registered factory bearing Regn. No. CK-647 which is situated At- Ghantikhala, P.O. Mahakalabasta, Khuntuni, Dist- Cuttack. The incident so happened that one Manas Swain, who happened to be an unloading helper was engaged in unloading of hard coke at the aforementioned factory. He met with an accident at about 12:00 Noon on 04.05.2018 being hit on the abdominal area by a truck and on the next day, i.e., on 05.05.2018, at around 3:00 AM he succumbed to the injuries at M/s Aswini Hospital, Cuttack.

5. The aforementioned incident had taken place on 04.05.2018 at about 12.00 P.M. at the coke yard area in the Ferro Alloys Plant, which was inside the plant premises. Immediately, on the same day, telephonic information was given by the Management to the concerned authority. Subsequent thereto, the information was also furnished in the prescribed format, i.e., Form No.18 on 05.05.2018.

6. On the basis of the aforementioned factual scenario, the Opp. Party No.2 had although got the complaint ready to be filed on 02.08.2018, but the

same was only instituted on 25.08.2018 before the learned S.D.J.M., Athgarh on 25.08.2018, which was registered as 2(c) CC. No.08 of 2018. Accordingly, the learned court below has taken cognizance of the offence on the same day i.e on 25.08.2018 under Section 92 of the Factories Act, 1948. Subsequently, summonses have been issued to the accused persons.

Section 92 of the Factories Act prescribes penalty for imprisonment for a term which may extend to two years or with a fine which may extend to Rs.1 lakh or both.

7. The factual aspects which have been enumerated in the preceding paragraphs are uncontroverted. Learned counsel for the petitioner has questioned the cognizance order on many grounds. However, the prime attack is on the ground of limitation.

8. Mr. Mohanty, learned Counsel for the petitioner, at the outset, has read out Section-106 of the Factories Act, which is reproduced:

"106. Limitation of prosecutions.--No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector:

Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months

of the date on which the offence is alleged to have been committed.

[Explanation.-- For the purposes of this section,--

(a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues;

(b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired.]"

9. Learned counsel for the petitioner, relying upon Form-18 and the complaint filed by the Assistant Director of Factories and Boilers, Cuttack Zone-II, Cuttack, has submitted that the occurrence took place on 04.05.2018 and was telephonically informed to the authorities under the Factories Act on the same day. Subsequently, Form No.18, as prescribed under the Rules, was submitted on 05.05.2018. The learned Counsel for the petitioner contended that the complaint is time barred as the complaint has been filed beyond the statutory limitation period on 25.08.2018 with a delay of about 21 days. Therefore, under the statutory prescribed limitation in the Factories Act, the learned trial Court was incapacitated to take the cognizance of the offence beyond three months. He further submitted that, if the limitation is reckoned either from 04.05.2018 or from or from 05.05.2018 (Form.18

received date), the complaint was time barred, as the complaint was filed much after three months.

10. Learned counsel for the State on facts had nothing to contradict. On the premises of the aforementioned admitted facts, I proceed to examine as to whether the complaint filed by the opposite party No.2 against the petitioner is indeed barred under the limitation prescribed by Section 106 of the Factories Act, 1948.

11. Section 106 of the Factories Act, clearly prohibits the trial Court to take cognizance of the offence under the Factories Act unless the complaint is made within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspector.

12. The prime consideration to evaluate limitation is the date of 'knowledge' acquired by the Inspector. The expression employed in the provision makes it abundantly clear that, once any of the Inspectors working under the jurisdiction acquires the knowledge of the incident the limitation reckons from that day and the complaint must be filed within three months. It is not required under the said provision that the knowledge of the cause required to be known to the Officer in the higher echelons.

13. In the instant case in the complaint itself, it is averred that the unfortunate incident which happened on 04.05.2018 at around 12.00 Noon was communicated to the Inspector over phone, on the following day that is on 05.05.2018 it was followed by the submission of the prescribed format of Form-18. Therefore, the limitation is required to be reckoned from 04.05.2018 or at best from 05.05.2018. Accordingly, the complaint ought to have been filed on or before 4th August, 2018. However, in the instant case, the complaint has been filed on 25.08.2018 and on 25.08.2018 the Court of the learned S.D.J.M, Athagarh had taken cognizance of the offence, which is completely in contravention with the provision of Section 106 of the Factories Act, 1948 being much beyond the limitation period.

14. Mr. Mohanty, learned Advocate submitted that 3 months limitation connotes 90 days, this position of law has been settled. To substantiate the aforementioned submission, learned counsel for the petitioner has relied upon the judgment of the Hon'ble Jharkhand High Court in the case of Hemant Madhusudan Nerurkar and Another Vs. State of Jharkhand and Another, (2021) SCCOnline Jhar 624 vide Order dt.15.09.2021 where the Hon'ble Court

had quashed the complaint on the ground of limitation U/s. 106 of the Factories Act, the relevant paragraph Nos. 10 & 11 are reproduced hereunder:-

"10. It is an admitted fact that the complaint was filed on 20.09.2012. However, the occurrence took place on 19.06.2012. From the complaint itself in paragraph nos.3 and 4, it is clear that it was in the knowledge of the Inspector that the occurrence took place on 19.06.2012 and there is no provision of condonation of delay. The revisional court's finding about the knowledge of date of filing of the report is erroneous as section 106 of the said act clearly speaks that no Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. The Court has also perused the cognizance order dated 24.09.2012 and finds that the learned judicial magistrate, Jamshedpur has taken cognizance in format thereby he has filled up the lines and section. It appears that he has not applied his judicial mind in order taking cognizance. The complaint petition itself is time barred under section 106 of the Factories Act.

11. In view of the aforesaid facts, the entire criminal proceedings in connection with C/2 Case No. 442 of 2012, pending in the court of learned Judicial Magistrate, 1st Class, Jamshedpur, including the order dated 21.02.2013 passed by the learned Principal Sessions Judge, Jamshedpur in Criminal Revision No. 297 of 2012 and also the order dated 24.09.2012 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in C/2 Case No. 442 of 2012 are, hereby, quashed. Petitioner has also relied upon the judgment of Hon'ble Jharkhand High Court in case of B. Sri Kumar and Others Vs. State of Jharkhand and another, (2007)

SCC Online Jhar 609. Relevant paragraphs-11, 12 & 14 are reproduced here below:

"11. A mere perusal of the above provision makes it abundantly clear that the complaint must be filed within three months of the date on which commission of offence came to the knowledge of the Inspector. The period three months referred in section 106 of the Act means three calendar months i.e 90 days calculated at the rate of 30 days per month. This view finds support from the judgment of the Division Bench of the Andhra Pradesh High Court in the case of V.S Mehta reported in 1970 Crl.L.J 797.

12. In the instant case, even as admitted by the complainant/Inspector of Factories in his report of inquiry annexed to the petition of complaint, the information about the occurrence relating to the death of two workers in the factory premises of the petitioners was received by him in the night of 31.1.2005 The inspector thereafter proceeded on 1.2.2005 to inquire into the incident and in course of which, he had come to the finding that the occupier and Manager of the Factory had violated the specific provisions of the Rules and thereby, they had committed offences punishable under the Act. Even if the date of Knowledge of the commission of the alleged offence is taken to be 1.2.2005 for the purpose of computing the period of limitation, complaint should have been filed within 90 days thereafter and therefore, the complaint ought to have been filed by 3.5.2005, whereas the instant case was filed on 7.5.2005 and cognizance was taken of the offences on the same day by the learned Chief Judicial Magistrate. Apparently, there is a delay of four days in filing of the complaint.

14. As observed herein above, neither the Act nor the Rules framed thereunder provide for previous sanction of the State Government for prosecuting the offender under the Act. The Inspector of Factories, who in the instant case, is the

complainant himself, was competent to file complaint and to prosecute the offenders. The Explanation offered that the delay was occasioned on account of time consumed for obtaining sanction for prosecution from the State Government, is without basis. Section 106 of the Factories Act is a special Act and it provides specific period of limitation within which complaint should be filed. The nature of offence as alleged in the instant case, confines the period of limitation to three months. Since this is specific provision under the Special Act, the provisions of Chapter- XXXVI of the Cr.P.C will not apply. In the light of the above discussions, I find merit in this application. Accordingly, the same is allowed. The impugned order of cognizance dated 7.5.2005 passed by the Chief Judicial Magistrate, Jamshedpur in C/2 Case No. 1621 of 2005, is hereby quashed.

15. I have carefully gone through the judgments cited by the learned counsel for the petitioner and evaluated the said judgments in the light of the provision of law cited by learned counsel for the petitioner and the facts of the present case. There is no quarrel on the proposition of law propounded by the learned counsel for the petitioner regarding the period of limitation. It is mandated under law that every complaint needs to be filed within three months from the date of acquiring the knowledge by the Inspector of Factories. Accordingly, in the instant case, benefit must be extended to the present petitioner, as the complaint by the Opp. Party No.2 has been filed after the lapse of the limitation period. Because admittedly the incident had taken

place on 04.05.2018, although it is claimed that on the same day the information was furnished over phone to the authority, but it is factually disputed as to whether the information indeed was furnished to the Inspector or not. Be that as it may under the Rule, officially the Form 18 was filed on 05.05.2018. Therefore, the limitation shall be reckoned from that day. Since the complaint was filed on 25.08.2018 much beyond 90 days, hence, the same is barred by Section 106 of the Factories Act. Hence, the present CRLMC deserves to be allowed.

16. Therefore, the entire criminal proceeding and the impugned order dated 25.08.2018 passed by the learned S.D.J.M., Athagarh in 2(C) CC. Case No.08 of 2018 is set aside.