Allowed

Mr. Pradeep Banerjee v. State of Karnataka

Karnataka HC24 Aug 2021CRL.P/783/2020

Case brief

AI extract

What is this about?

The Karnataka High Court in a criminal petition allowed the quashing of a complaint under Section 482 Cr.P.C regarding an injury to a worker involving a jamming machine. The court held that the injury resulted from the worker's voluntary negligence rather than occupier negligence and that the company need not be impleaded.

What did the court decide?

The complaint in C.C No.610/2017 pending on the file of JMFC II Court, Mysuru is quashed.

Mr. Pradeep Banerjee Vs State of Karnataka — Quashing and FIR | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K.NATARAJAN

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CRIMINAL PETITION No.783 OF 2020

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BETWEEN:

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MR.PRADEEP BANERJEE ERSTWHILE OCCUPIEREXECUTIVE DIRECTOR SUPPLY CHAIN HINDUSTAN UNILEVER LIMITED PLOT NO.424, HEBBAL INDUSTRIAL AREA MYSURU - 570 016.

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MR.HARIRAM GOVIND ERSTWHILE FACTORY MANAGER HINDUSTAN UNILEVER LIMITED PLOT NO.424, HEBBAL INDUSTRIAL AREA MYSURU - 570 016.

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BOTH HAVING REGISTERED OFFICE AT 'UNILEVER HOUSE' B.D.SAWANT MARG, CHAKALA, ANDHERI (EAST), MUMBAI - 400 099.

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…..PETITIONERS

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(BY SRI.K.KASTURI, SENIOR COUNSEL FOR SRI.SURYANARAYANA.T, ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY SPP OFFICE OF THE DEPUTY DIRECTOR OF FACTORIES MYSURU DIVISION 1

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...RESPONDENT

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HAVING OFFICE AT NO.4, 1ST MAIN ROAD, MEDAR BLOCK, YADAVAGIRI, MYSURU - 570 020.

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(BY SRI.MAHESH SHETTY, HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE COMPLAINT IN C.C NO.610/2017 FILED BY THE RESPONDENT BEFORE THE HON'BLE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, (II COURT) AT MYSURU ON 08.06.2017 AND ALL THE PROCEEDINGS IN SAID CASE IN SO FAR AS IT RELATES TO THE PETITIONERS HEREIN (ANNEXURE - A) AND ETC.

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THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is filed by the petitioners-accused

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Nos.1 and 2 under Section 482 of Cr.P.C for quashing the case in CC No.610/2017 pending on the file of JMFC II Court, Mysuru on the complaint filed by the respondent-Deputy Director of Factories, Division-1 Mysuru (hereinafter referred to as 'complainant') for the offence punishable under Section 8(1) of the Factories Act, 1948.

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Heard the learned counsel for the petitioners

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and learned High Court Government Pleader.

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The case of the complainant before the trial

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Court is that the accused was running a factory M/s.Hindustan Unilever Limited at Mysuru manufacturing instant and conventional coffee with the aid of power. On 14.03.2017 at around 12.15 p.m one Mahadevaswamy, a contract worker while working in the unit, sustained an injury on his left hand fingers and the same was reported to the complainant. In turn, a detailed investigation report has been obtained and thereafter, complaint came to be registered under Section 200 of Cr.P.C. Accordingly, the learned Magistrate took cognizance of the offence and proceeded to issue notice to the accused. Hence, the petitioners are before this Court.

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Sri.K.Kasturi, learned Senior Counsel

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appearing for the petitioners contended that cognizance of the offence taken by the learned Magistrate is not in accordance with law. The learned Senior counsel further

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contended that the learned Magistrate has not applied his mind while taking cognizance and has not perused the records. He further contended that even on perusal of the statement of the supervisor and co-worker, which reveal that there is no fault and negligence on the part of the accused who is occupier of the factory. On the other hand, the injured person was cleaning the shrudding machine, who himself voluntarily kept his hand inside inspite of the warning given by the supervisor, thus the injury was caused voluntarily on the insistence of the injured himself, therefore, accused cannot be held responsible. Even otherwise, the learned Senior counsel for the petitioners submitted that injuries are not grievous in nature. The petitioners were ready to pay more compensation and that petitioners have not committed any offence punishable under Section 8(1) of the Factories Act. The learned Senior counsel also submitted that the company was not impleaded as an accused and only occupier was made an accused. Therefore, the complaint is not

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sustainable. Hence, the learned Senior counsel prays for quashing of the same.

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In support of the above contention, the

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learned counsel for the petitioners relied upon the judgment of Co-ordinate Bench of this Court in Crl.P No.2869/2018 and connected matters in the case of Vigneshwar Gopal Krishna Bhat and another V/s State of Karnataka , in Crl.P No.11146/2012 in the case of D.Kumaraswamy v/s State of Karnataka , in Crl.P No.6603/2016 in the case of Sri Aristides Protonotarios (Major) and another V/s State of Karnataka . The learned Senior counsel also relied upon the judgment of Hon'ble Supreme Court in the case of Aneeta Hada V/s Godfather Travels and Tours Private Limited reported in (2012) 5 SCC 661 .

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Per contra, learned HCGP objected the petition and contended that under the Factories Act, normally the Company cannot be impleaded as a party, only an occupier has to be made as accused. Hence, the occupier is punishable for negligence of the act.

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Therefore, the company need not be made as party for any vicarious liability. The learned HCGP submitted that the learned Magistrate has taken cognizance of the offence after verifying the records and there is no fault committed by the Magistrate in order to quash the proceedings. The learned HCGP further submitted that he has not disputed the statement made by the witnesses and supervisor and other co-worker that the injury was sustained by Mahadevaswamy while cleaning the shrudder machine and he has put his hand voluntarily in the machine and the injury is serious in nature as there is amputation of little ring finger. Therefore, he prays for dismissal of the petition.

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Upon hearing the learned Senior Counsel for the petitioners, it is brought to the notice of the Court that in the statement of one Madhu, supervisor, he has stated that when Mahadevaswamy was doing shrudding work along with one Boraiah, the shrudder machine got jammed and by pressing emergency button the machine was stopped. After cleaning the machine,

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Mahadevaswamy asked Boraiah to reverse the engine. The supervisor told Mahadevaswamy to keep his hand away from the machine but despite the warning given by him, Mahadevaswamy's left hand got stuck between two roller cutters. He pulled the hand gloves which got stuck in the machine and pulled his left hand, at that time injury was sustained. Likewise, the statement of one Boraiah, the co-worker also stated that inspite of the warning by the supervisor, the injured himself put his hand and has got stuck in the machine. Another detailed report of Madhu, the supervisor who has categorically stated that the injury has caused voluntarily due to his negligence. In this regard learned Senior Counsel has relied upon the judgment of the Co-ordinate Bench of this Court in Crl.P No.11146/2012 in the case of D.Kumaraswamy v/s

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State of Karnataka , at paragraph 8 which reads as under:

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"8. In this regard, the learned Senior Advocate has placed reliance on the decision of this Court in the case of Ramchandra Vs A.R.Vijendra, ILR 1994 KAR 2437, wherein in identical

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circumstances, no person, who is an occupier, could be held liable for an accident, which takes place on account of negligence. It was held by this Court, as follows:

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"If bodily injury is caused to a worker not on account of any inherent defect in the construction, situation, operation or maintenance of the means of transport, but on account of negligence, then it cannot be said that there is contravention of the Rule."

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In this case, it is stated that if the injury has caused due to the negligence of injured but not on the negligence of the occupier in order to punish the occupier under Section 92 of the Factories Act.

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The learned Senior Counsel for the petitioners also relied upon the judgment of Co-ordinate Bench of this Court at Paragraphs 7 and 8 in Crl.P No.6603/2016 which reads as under:

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"7. Even otherwise, it is not the case of complainant that safety measures was essentially required for the machinery operated by the employee. According to the complainant, it is only after the alleged accident, the Inspector found it necessary to advise the occupier to provide an additional safety measure, and the same was complied by the occupier, by providing a mesh to the

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said stacker. In that view of the matter, it cannot be said that alleged accident had taken place solely on account of non-providing the safety measure by the occupier. As the material on record indicate that the alleged accident has taken place on account of negligent handling of the stacker by injured employee, in my view, prosecution of petitioners under section 21 of the Factories Act is not tenable.

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8. No doubt section 21 of the Factories Act requires occupier to securely fence the machinery by providing necessary safeguards of substantial construction, but in the instant case, the material on record does not disclose that such safeguard was essentially required for the safety of employees. In that view of the matter, it cannot be said that the petitioners have violated the provision of section 21(1)(iv)(c) of the Factories Act rendering them liable for prosecution under section 92 of Factories Act."

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On perusal of the report of Mahadevaswamy who is injured, supervisor and co-worker wherein it is categorically stated that the injury sustained by him is due to negligence. Further, the inspection report submitted by Deputy Director of Factories, Dn-1, Mysuru reveals that there were no guards or barrier to the rotating part of the shrudder and by not providing secured cover guards to the cutters of the shrudder

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equipment it amounts to negligence on the part of the occupier as provided under Section 21(1) (iv) (c) of Factories Act.

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Upon hearing the case and on perusal of the

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case of the petitioners, complainant and the report it reveals that the shrudder machine was stuck while shrudding the waste laminate pouches from the machine and at that time the shredder machine got jammed. As a piece of laminate MIC was stuck, therefore to clear the same, Mahadevaswamy went to remove the laminate pouch and while cleaning the accumulated waste, the injury was sustained. Therefore, the question of making complaint that there was negligence on the part of the occupier by not providing guard does not arise. For the purpose of cleaning the shrudder, injured himself kept his hand inside voluntarily and therefore, the accident has occurred. Therefore, I am of the view that there is no substance made in the complaint to show negligence on the part of the occupier in order to punish the

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petitioners under Section 8(1) of the Factories Act and the complainant has not made a Company as a party whereas other parties are made as a parties. In my opinion, the question of impleading the company does not arise as the occupier has made an accused.

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The learned Senior Counsel relied upon the

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judgment of the Hon'ble Supreme in the case of Aneeta Hada (supra) where the company is required to be made as party as per NI Act in view of Section 141 of NI Act where offences committed by the Company without impleading the company, the director or any person representing the Company cannot be punished here. In this case, the occupier is the accused and the occupier is liable to be punished and not the company and there is no vicarious liability in the Factories Act. Since there is no amendment to the Factories Act in respect of the company, therefore, in my view the case in C.C No.610/2017 is liable to be quashed. Accordingly, the petition is allowed.

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The Complaint in C.C No.610/2017 filed by respondent-Deputy Director of Factories, Division-1 Mysuru pending on the file of JMFC II Court, Mysuru is hereby quashed.

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Sd/JUDGE

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Mr. Pradeep Banerjee v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr. Pradeep Banerjee v. State of Karnataka

Case brief

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