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P.K.Sinha And Anr. v. State of Jharkhand

Jharkhand HC24 Apr 2023Cr.M.P./1270/2011

Case brief

AI extract

What is this about?

The High Court of Jharkhand quashed criminal proceedings under IPC sections against two Tata Motors managers for a chlorine gas leak. The court held that vicarious liability attaches only if explicitly provided by statute under the Factories Act or similar legislation.

What did the court decide?

The entire criminal proceedings and the order taking cognizance dated 24.01.2011 were quashed.

P.K.Sinha And Anr. Vs State of Jharkhand — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 1270 of 2011

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Praveen Kumar Sinha @ P.K. Sinha 2. Ashok Kr. Patel @ A.K. Patel ..... … Petitioners Versus The State of Jharkhand ..... … Opposite Party

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Petitioner : Mr. V.P. Singh, Sr. Advocate. : Mr. A.K. Das, Advocate. : Mrs. Rashmi Kumari, Advocate. For the State : Mr. Nawin Kumar Singh, A.P.P.

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14/ 24.04.2023 Heard Mr. V.P. Singh, learned senior counsel appearing for the petitioners and Mr. Nawin Kumar Singh, learned A.P.P. for the State.

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This petition has been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 24.01.2011, by which cognizance for the offence under Sections 278, 284, 337, 338, 308/34 of the Indian Penal Code has been taken, against the petitioners, in connection with Telco P.S. Case No. 116 of 2008 corresponding to G.R. No. 1150 of 2008, pending in the court of learned Chief Judicial Magistrate, Jamshedpur.

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Telco P.S. Case No. 116 of 2008 was registered on the basis of fardbeyan of Pradip Chaudhary, S.I.-cum-Officer-in-charge with regard to the occurrence alleged to have taken place on 27.5.2008 stating therein that leakage of gas spread in the area from water plant situated near Truck park at Telco Colony and the people are being affected and feeling suffocation. The informant is alleged to have rushed to the place and took step for their treatment and sent them to Telco Main Hospital. The informant has further alleged that he enquired and found an enquiry that the gas was leaking from the said place. The Management of Tata Motors did not inform to the police authorities. According to the informant it was chlorine gas, which was leaking Chlorine gas was used to all the water plant but due to some negligence chlorine gas started leaking from the cylinder. The informant has further stated that section 7A of the Factories Act 1942 cast obligation on the plant occupier to maintain the plant so that nothing untoward happen. The FIR further says that the plant has been given by Tata Motors to Tata water Supply Maintenance to JUSCO and JUSCO had deputed their officer G.S. Basu and Toumy Bith, who are managing the water plant and it was also their responsibility to take and provide safety measure, which was not done by them. It has also been

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alleged that A.K. Patil, G.M. Manufacturing wing and S.K. Ghatak, Supervisor did not take proper step for safety. It has also been alleged that B.K. Sarkar, Manager, Water Supply also did not take proper step and hence the case was instituted against plant head S.B. Borwankar, S.K. Patil, Manoj Rai, B.K. Sarkar, S.K. Ghatak, B.S. Basu, Taumi Bith.

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Mr. V.P. Singh, learned senior counsel appearing for the petitioners submits that M/s Tata Motors has installed a water purification plant under the factory, however, in view of Section 26 of the Factories Act, the name of occupier of the factory is required to be disclosed. He submits that the allegations are made that the occurrence has said to have taken place on 27.05.2008 at 10.00 A.M. with regard to leakage of chlorine gas from the premises of M/s Tata Colony Water Purification plant. He further submits that the liability has been fastened upon the petitioners, who are the Senior General Manager and Deputy General Manager respectively of the said company. He further submits that the Factories Act is a complete Code itself, however, the case has been registered under the penal sections of IPC, which is against the mandate of law and the cognizance has also not been taken under the provisions of IPC. He further submits that the case of the co-accused of this case has already been quashed in Cr.M.P. No. 1102 of 2011 by order dated 19.03.2012 by a co-ordinate Bench of this Court.

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Learned senior counsel appearing for the petitioners submits that Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company. To buttress his argument, he relied in the case of Maksud Saiyed Versus State of Gujarat & Ors. , reported in (2008) 5 SCC 668 , wherein the Hon’ble Supreme Court in para-13 held as follows:-

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“13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable

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for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.”

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On these grounds, learned senior counsel appearing for the petitioners submits that entire proceedings may kindly be quashed.

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Mr. Nawin Kumar Singh, learned A.P.P. appearing for the State submits that the learned court has rightly taken the cognizance.

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In view of the above submissions of the parties, the court has gone through the contents of the FIR as well as the order taking cognizance and finds that admittedly for latches on the part of the company, the FIR has been registered against the petitioner No. 1, who is the Senior General Manager and petitioner No. 2, who is Deputy General Manager of the company, under the penal Sections of IPC. However, in the case in hand, under Section 7 of the Factories Act, the liability can only be fastened only upon the persons, who are looking into the day to day affairs of the company, as has been held by the Hon’ble Supreme Court in the case of Maksud Saiyed (Supra).

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The Factories Act is having a complete provision and so far as the occurrence with regard to the factory is concerned, it is required to be proceeded as per the said Act itself. Reference may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Sharat Babu Digumarti v. Government (NCT of Delhi) , reported in (2017) 2 SCC 18 , wherein the Hon’ble Supreme Court in Paras- 31, 32 and 37 held as follows:-

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“31. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Sections 67-A and 67-B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal and we concur with the same.

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32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect

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notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.

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xxx xxx xxx

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37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.”

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In view of the above facts, reasons and analysis and also considering the judgment of Hon’ble Supreme Court in the cases of Maksud Saiyed (Supra) and Sharat Babu Digumarti (Supra) and the case of the other co-accused has already been quashed by this court , the entire criminal proceedings including the order taking cognizance dated

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24.01.2011, by which cognizance for the offence under Sections 278, 284, 337, 338, 308/34 of the Indian Penal Code has been taken, against the petitioners, in connection with Telco P.S. Case No. 116 of 2008 corresponding to G.R. No. 1150 of 2008, pending in the court of learned Chief Judicial Magistrate, Jamshedpur, are hereby, quashed.

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This petition is allowed and disposed of.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

P.K.Sinha And Anr. v. State of Jharkhand

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P.K.Sinha And Anr. v. State of Jharkhand

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