Allowed

Gunendu Bikash Roychowdhury v. the State of Jharkhand and Anr.

Jharkhand HC6 Dec 2023Cr.M.P./1753/2015

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition, the High Court of Jharkhand quashed criminal proceedings against the petitioner under Sections 92 and 96A of the Factories Act, 1948. The court held that the order taking cognizance reflected non-application of judicial mind and proceeded to dismiss the prosecution due to lack of mens rea.

What did the court decide?

The entire criminal proceedings including the order taking cognizance dated 28.04.2014 in Complaint Case No. C-III-127/2014 are quashed.

Gunendu Bikash Roychowdhury Vs the State… — Pension and Retirement Benefits | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 1753 of 2015

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Gunendu Bikash Roychowdhury ..... … Petitioner Versus 1. The State of Jharkhand. 2. The Factory Inspector, Ranchi. ..... … Opposite Parties -------- CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI -----For the Petitioner : Mr. Shubham Sinha, Advocate. : Mr. Nipun Bakshi, Advocate. For the State : Mr. Sanath Kumar Jha, A.P.P. ------

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05/ 06.12.2023 Heard Mr. Shubham Sinha, learned counsel appearing for the petitioner and Mr. Sanath Kumar Jha 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 28.04.2014, by which, cognizance for the offence under Sections 92 and 96A of the Factories Act, 1948 has been taken against the petitioner, in connection with Complaint Case No. C-III-127/2014, pending in the court of learned Additional Chief Judicial Magistrate, Ranchi.

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The complaint case was filed against the petitioner by the opposite party no.2 on a prosecution report dated 26.04.2014. The present petitioner has been arraigned as Accused No.1 in the said prosecution report in his capacity as the 'Occupier' of the factory of M/s THE WAXPOL INDUSTRIES LIMITED at Butty in Ranchi, which is manufacturing lubricants and polishes. The allegations in the complaint prosecution report are:

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(a) A shed for keeping finished products has been extended without prior sanction which is violation of Rule 3 and 20 of Jharkhand) Factory Rules, 1950.

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(b) There is no Occupational Health Centre in the factory which is violation of Section 41C of the Factories Act, 1948 read with Rule 62OH of the Jharkhand Factory Rules, 1950.

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(c) Some workers alleged that health check- up was carried out by the factory- management three years ago whereas some others have stated before the Factory Inspector that no health check-up was ever carried out. It has also been alleged that the management of the factory did not produce any document to show that the health check-up is being conducted regularly despite written

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notice, which is violation of Rule 62NH of the Jharkhand Factory Rules.

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(d) No safety and health policy has been prepared and filed with the Chief Inspector of Factories which is violation of Rule 62 BH of the Jharkhand Factory Rules.

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The above alleged violations are punishable under Sections 92 and 96A of the Factories Act of 1948.

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Mr. Shubham Sinha, learned counsel appearing for the petitioner submits that M/s Waxpol Industries Limited was inspected and allegations are made of certain discrepancies of not complying the Rule of the Jharkhand Factories Rules. He submits that pursuant to the inspection report, the application dated 13.03.2014 was filed for seeking one month time for complying the said discrepancies. He further submits that the O.P. No. 2 on 14.03.2014 allowed one week time to comply the direction. He further submits that the direction has already been complied on 21.03.2014. He further submits that about the said compliance, there is no mention in the complaint and straightway the prosecution has been lodged. He further submits that the order taking cognizance is not in accordance with law, as the word cognizance has been filled up in a blank space, which also reflects the non-application of judicial mind. He relied in the case of Mehmood Ul Rehman Versus Khazir Mohammad Tunda & Anr. , reported in (2015) 12 SCC 420 and he only refers to paras -20 to 23 of the said judgment.

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Learned counsel appearing for the petitioner further submits that in view of Section 117 of the Factories Act, the protection was provided to the authorities as well as any person. He submits that this aspect of the matter has been considered by the Andhra Pradesh High Court in the case of Public Prosecutor Versus Mangaldas V. Thakkar, reported in 1957 SCC OnLine AP 128 . Paras-5, 6 and 7 of the said judgment is as under:-

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5.Having regard to the wording of the punitive provisions of the Act, mere contravention of the rule may be punishable under rule. However, being a criminal offence, in view of the wording of Section 117, it can be argued that there should be mens rea or criminal intention. The acts complained of do not suggest in any manner any oblique motive or

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criminal intention The workers were not required to work beyond a period of 8 hours that day. The difficulty in keeping up to the time-table was due to some supervening facts which detained the workers from coming to the factory and starting the work. Naturally the time-table had to start from 9 a.m. instead of 7-30 a.m. The usual interval was granted. The number of hours of work was not exceeded.

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So then the action taken was neither detrimental to the interests of the workers nor was a source of unlawful gain for the factory but was in keeping with the principle that the adult workers should not be required to work for more than 8 hours after due interval. Similarly, the entries which have to be made in the register, were not made that very moment. But it was due to the unavoidable absence of the clerk who was summoned to the Court. He could not possibly, attend the Court and make the entries in the register at the same time. A provisional arrangement was, however .made and the entries were made on a rough paper so that these entries may be made according to law in the register concerned after the clerk returned.

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6. That the acts of this kind in these circumstances are not punishable is clear from the observations in Ranjit Singh v. Emperor 44 Ct LJ 523: A.I.R. 1943 Oudh 308 (A) and Ranjit Singh v. Emperor 44 Cr. LJ 527 : A.I.R. 1943 Oudh 311; (Bi. Therein it was held that unless there is a deliberate breach of the rule on the part of the occupier or the manager, the case may be covered by Section 81 of the Factories Act, (Corresponding to Section 117 of the present Act). A delay of a few minutes in posting the attendance register could not be a deliberate breach of the rule entailing the punishment as observed at p. 529 (of Cri LJ) : at PP. 312-313 of A.I.R. in the ruling above referred to. The Calcutta High Court observed that the Factories Act affords protection in the matter of prosecution for commission of offence to persons acting in good faith and if

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the manager had acted in good faith, he will not be liable to punishment for any of the infringement of the provisions with which he is charged.

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See Superintendent and Legal Remembrancer, Bengal v, Watson A.I.R. 1934 Cal 730 (C). Section 117 says that no person for anything which he does in good faith or intends to do under the Act can be prosecuted or proceeded against civilly or criminally. The words are wide enough not only to cover the officers or servants of the Government but also the managers. Protection of this kind has been given in other laws But in most of such legal enactments it is limited to the Government Servants and officers only. For example, Section 56 of the Madras Prohibition Act reads as under:

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No action shall lie against the Government or against any Prohibition, Police or other Officer, for damages in any civil Court for any act bona fide done or ordered to be done in pursuance of this Act.

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7. Similar are the provisions of Section 17 of the Madras General Sales Tax Act, Section 14 of the Madras Preservation of Private Forests Act of 1949 and Section 40 of the General Excise Act.

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On the above grounds, learned counsel appearing for the petitioner submits that the entire criminal proceedings may kindly be quashed.

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Mr. Jha, learned A.P.P. appearing for the State submits that the compliance of the direction is not there, that’s why the learned court has taken the cognizance and in view of that no case of interference is made out.

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In view of the above, it appears that the petitioner has moved before the authorities concerned for compliance and demanded certain time and a week time was allowed on the petition filed by the petitioner, however, on 26.04.2014, the complaint case has been lodged. There is no averment in the complaint that which aspect of the matter has not been complied by way of the compliance report dated 21.03.2014. Further the mens rea is one of the aspect for initiating the

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prosecution, as has been held in the case of Public Prosecutor (Supra) and further the word cognizance has been filled up in the order taking cognizance, which suggests that there is non-application of judicial mind.

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As such, the entire criminal proceedings including the order taking cognizance dated 28.04.2014, by which, cognizance for the offence under Sections 92 and 96A of the Factories Act, 1948 has been taken against the petitioner, in connection with Complaint Case No. C- III-127/2014, pending in the court of learned Additional Chief Judicial Magistrate, Ranchi, 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/-

Gunendu Bikash Roychowdhury v. the State of Jharkhand and Anr.

Case brief

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Gunendu Bikash Roychowdhury v. the State of Jharkhand and Anr.

Case brief

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