Allowed

Rao v. S Alias B v Rao S/O. B Madhusudan v the State of Karnataka

Karnataka HC21 Sept 2023CRL.P/100686/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed criminal proceedings under IPC Sections 287 and 304A against factory officials. The Court held that specific provisions of the Factories Act oust police jurisdiction and prohibit parallel prosecution once the competent officer under the Act has initiated proceedings.

What did the court decide?

The criminal petition was allowed and the proceedings in C.C. No.2590/2022 registered under IPC Sections 287 and 304A were quashed.

Rao v S Alias B v Rao S/O. B Madhusudan Vs the… — Service and Employment | Karnataka HC (2023)

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NC: 2023:KHC-D:11012 CRL.P No. 100686 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 21^ST DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 100686 OF 2023

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BETWEEN:

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RAO V S @ B V RAO S/O. B MADHUSUDAN, AGE. 48 YEARS, OCC. CHIEF GENERAL MANAGER, BMM ISPAT LIMITED, 114, DANAPURA VILLAGE-583222, HOSAPETE TALUK, VIJAYANAGAR DISTRICT.

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VISHAL NINGAPPA PATTIHAL

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Digitally signed by VISHAL NINGAPPA PATTIHAL

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Date: 2023.09.22 10:50:16 +0530

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RANGANATH @ RANGANATHA S/O. KRISHNAPPA, AGE. 52 YEARS, OCC. SENIOR FACTORY MANAGER, BMM ISPAT LIMITED, R/AT. KALAVIBAVI VILLAGE-577545, HIRIYURU TALUK, CHITRADURGA DISTRICT.

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SOMATHA @ SOMANATHA S/O. SIDDAPPA, AGE. 41 YEARS, OCC. MANAGER, BMM ISPAT LIMITED, 114, DANAPUR VILLAGE-583222, HOSAPETE TALUK, VIJAYANAGAR DISTRICT.

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SYED RASOOL S/O SHESHKSHAVALLI, AGE. 37 YEARS, OCC. TECHNICIAN, BMM ISPAT LIMITED, CHELUVADIKERE-583222, HOSAPETE TALUK, VIJAYANAGAR DISTRICT.

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… PETITIONERS

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(BY SRI. CHETAN MUNNOLI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, THROUGH THE INSPECTOR OF POLICE MARIYAMMAHALLI P.S., R/BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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SANGAPPA S/O BASAPPA, AGE. 55 YEARS, OCC. FARMER, R/O. DANAPUR VILLAGE-583222, HOSAPETE TALUK, VIJAYANAGAR DISTRICT.

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… RESPONDENTS

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(BY SRI. MADANMOHAN M. KHANNUR, AGA FOR R1; R2 SERVED)

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THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO ALLOW THIS CRIMINAL PETITION IN EXERCISE OF ITS INHERENT POWERS U/SEC. 482 OF CR.P.C. AND QUASH THE ENTIRE PROCEEDINGS IN C.C.NO. 2590/2022 PASSED BY THE III ADDL. CIVIL JUDGE AND JMFC, HOSAPETE, VIJAYANAGARA DISTRICTAGAINST THE ACCUSED NO. 1 TO 4/PETITIONERS FOR OFFENCES P/U/SEC. 287 AND 304A, IPC ARISING OUT OF CRIME NO. 41/2022 REGISTERED BY MARIYAMMANAHALLI POLICE STATION, HAGARIBOMMANAHALLI CIRCLE, VIJAYANAGARA DISTRICT.

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

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ORDER

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The petitioners are before this Court calling in

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question the proceedings in C.C. No.2590/2022 registered for the offences punishable under Sections 287 & 304(A) of the IPC.

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The learned counsel Shri Chetan Munnoli appearing for the petitioners submits that the impugned proceedings are akin to what is considered by the Co-ordinate Bench and this Court in plethora of petitions, one of which, I deem it appropriate to quote.

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This Court in Criminal Petition No.102370/2017 C/w. Crl.P.No.100844/2018, disposed of on 28th January 2022 has held as follows:

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The petitioners are before this Court calling in question proceedings in C.C.No.515 of 2015 registered for offences punishable under Sections 287 and 304A of the IPC pending before Civil Judge and JMFC, Sandur, Ballari.

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2. Heard Sri Ravi B.Naik learned senior counsel for Sri V.M. Sheelvant and Sri S.H. Mittalkod learned counsel for the petitioners and Sri Ramesh Chagari learned High Court Government Pleader for respondent No.1.

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3. Since there petitions arise out of the same incident, therefore they are taken up together and disposed of by this common order. For the sake of convenience facts obtaining in Crl.P.102370/2017 is considered.

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4. Facts as projected by the prosecution are as follows:

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The petitioners are the site incharge, safety incharge, General Manager and Supervisor of the factory called JSW Steel Limited (for short ‘the Factory’). The factory is registered under the Factories Act, 1948 (‘the Act’ for short). The unit is in to manufacture of HR Coils, CR Coils, Pellets and Liquid Steel with the aid of electricity and around 20000 workers are working in the unit. In furtherance of the production, the petitioners engaged various contractors for various departments. On 27.11.2014 one Mr. Yara Lingamurthy, rigger, and one Mr. Millam Maithi, gas cutter and Mr. Ravishankar Chubay rigger reported to duty at the work place at about 7.45 a.m. They were involved in erection of stove 1 and 2. After lunch they were asked to dismantle a temporary support fixed to the stove. At about 3.30 p.m. the aforesaid workers were working at + 19 meters level trying to dismantle the contact points of the temporary platform fixed at + 16 meters elevation. At that time Mr. Yara Lingamurthy working at +19 meters platform slipped and fell to ground and succumbed to the injuries sustained in the accident. Immediately thereafter the occupier and Manager of the factory was informed and Form No.17 was sent to the Deputy Director of Factories informing the incident.

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5. The Deputy Director of Factories on receipt of Form No.17 visited the factory premises, conducted inspection on 5.12.2014, recorded the statements of various persons and furnished a report of investigation. A show cause notice was issued on 30-12-2014 by the Deputy Director of Factories on

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such inspection and investigation conducted alleging that the petitioners had contravened Section 32(c) of the Act. The petitioners immediately claimed to have sent their reply in great detail bringing out the facts of employment, incident and remedial measures taken. It was also contended that they had not violated any of the norms of the Act.

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6. A complaint invoking Section 200 of the Cr.P.C. was registered by the Deputy Director for offences under Section 92 of the Act against the occupier and Manager of the factory in C.C.No.22 of 2015. After issuance of summons, the occupier and Manager appeared before the Magistrate, pleaded guilty pursuant to which the Magistrate by recording such guilt being pleaded imposed a fine on the occupier and Manager and closed the proceedings. Thus ended the proceedings under the Act.

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7. The Police Sub-Inspector of Torangallu Police Station registers a crime on the complaint lodged by one Milan Maity for offences punishable under Sections 287 and 304A of the IPC in Crime No.182 of 2014 in which a charge sheet also has been filed against the petitioners which is now registered as C.C.No.515 of 2015. It is at that juncture the petitioners have knocked the doors of this Court.

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8. The learned senior counsel representing the petitioners would vehemently argue and contend that the Act is a complete code by itself and the competent officer under the Act once having initiated proceedings under the Act, it was not open for another complaint to be registered and an FIR filed on that basis for offences punishable under Section 287 and 304A of the IPC. He would place reliance upon judgments of the Apex Court in J.K. INDUSTRIES LIMITED AND OTHERS v. CHIEF INSPECTOR OF FACTORIES AND BOILERS AND OTHERS – (1996) 6 SCC 665 and R.S. JOSHI AND OTHERS v. AJIT MILLS LIMITED AND ANOTHER - (1977) 4 SCC 98 and of this Court in ANANTHAKUMAR v. THE STATE OF KARNATAKA

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– Criminal Petition No.5115 of 2014 decided on 28^th May 2019. The complainant is served and remains unrepresented. The learned High Court Government Pleader would however seek to justify the action of registration of the crime and the charge sheet contending that both the proceedings are altogether different and since there was a death occurred Section 304A of the IPC would come into play and would seek that the petitioners have to come out clean in the trial.

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9. I have given my anxious consideration to the submissions made by the learned senior counsel and the learned High Court Government Pleader and perused the material on record.

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10. The afore-narrated facts are not in dispute. The death of a person in the accident while performing his duty in the Factory resulted in a proceeding under the Act for offences punishable under Section 92 of the Act. The Act is a complete code by itself is not in dispute. It is also the law laid down by the Apex Court in the case of J.K.Industries Limited (supra). The Apex Court in the case of J.K Industries Limited has considered the effect of initiation of proceedings under the Act. Once having initiated proceedings under the Act by the competent officer and those proceedings ending in the petitioners pleading guilty and closing the proceedings, it was not open for another complaint to be registered by the complainant and further proceedings being taken up for offences punishable under Section 304A of the IPC. The issue whether proceedings under the IPC could be taken after conclusion of the proceedings under the Act need not detain this Court for long or delve deeper into the matter as this Court in the case of Ananthakumar (supra) while considering identical facts in a petition under Section 482 Cr.P.C. has held as follows:

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“8. Upon hearing the learned counsels appearing for the parties and on going through the material on record, it

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is seen that the contentions raised by the parties are already considered and answered by this Court in AJIT KUKLARNI’s case (supra) wherein considering identical questions of fact and law, this Court framed the following questions for consideration viz.,

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“1. Whether initiation of prosecution under Section 304-A of IPC while prosecution for offences punishable under Section 92 of the Factories Act is legally permissible ?

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2. Whether parallel or simultaneous prosecution is legally impermissible ?

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3. Whether the contravention of Section 29(1)(a)(ii) and Section 32(b) of the Factories Act, 1948 of the Factories Act punishable under Section 92 be clubbed with the offence punishable under Section 304-A of Indian Penal Code?”

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9. Referring to Section 300 of Cr.P.C and Section 26 of the General Clauses Act and relevant decisions on the point, this Court took note of the fact that Section 92 of the Factories Act provides for punishment of imprisonment for a period upto two years for contravention of any provisions of this Act and if such contravention has resulted in an accident causing death or serious bodily injury, minimum fine of Rs.25,000/- in addition to imprisonment. Likewise Section 304-A prescribes that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either

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description for a term which may extend to two years, or with fine, or with both. Considering these provisions in the light of Section 219 of Cr.P.C, it was held that the offences made punishable under Section 92 of the Act and Section 304-A of Indian Penal Code are of the same kind and are punishable with same quantum of punishment and hence, Section 26 of the General Clauses Act becomes applicable requiring the offender to be prosecuted only under one enactment and consequently, the proceedings initiated against the accused therein were quashed. The ratio laid down in the above decision has been followed by this Court in the case of M.ZAKIR AHMED (supra) and V.REVATHI (supra).

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10. I am in respectful agreement with the view taken by this Court in the above decisions. Even otherwise the scheme of the Factories Act does not permit parallel prosecutions under two different Acts against a person accused of committing offences under the Factories Act. Section 92 is the only section under the Act which makes the contravention of the provisions of the Act, punishable fine. as criminal offence and prescribes punishment and fine.

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11. The Section reads as under:

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“92. General penalty for offences.—Save as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given

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thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to 1[two years] or with fine which may extend to 2[one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to 3[one thousand rupees] for each day on which the contravention is so continued: 4[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than 5[twentyfive thousand rupees] in the case of an accident causing death, and 6 [five thousand rupees] in the case of an accident causing serious bodily injury.

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From the reading of the above section, it is clear that whenever contravention of the provisions of the Act or the Rule made thereunder has resulted in an accident causing death or serious bodily injury, in addition to punishment of imprisonment for a term which may extend to two years or a minimum fine of Rs.25,000/- is visited as penalty. This provision if read in the backdrop of Section 88 of the Act, it casts an obligation on the occupier to give notice of the accident within 48 hours immediately following the accident, to the authorities constituted under the Act. Section 9 of the Act deals with the powers of the Inspectors. It empowers the Inspectors to inquire into any accident or dangerous occurrence, resulting in bodily injury, disability and

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to take on the spot or otherwise the statements of any person which he may consider necessary for such inquiry. Thus, the scheme of the Act provides for an independent mechanism for inquiry or investigation into the accident taking place within the premises of the factory by the Inspectors, but it does not invest power on the police to register and investigate the offences against occupiers or other personnel of the factory.On the other hand, Section 105 of the Act mandates that no Court shall take cognizance of any offence under this Act except on complaint by, or with previous sanction in writing of, an Inspector. This provision, therefore, impliedly ousts the jurisdiction of the police to register FIR in respect of the alleged contraventions of the Factories Act and to embark upon investigation thereon even if the contravention leads to accident resulting in death or bodily injury within the factory premises. These special provisions therefore, prevail upon the general provisions contained in Indian Penal code and operate as implied repeal of the substantive offence created under the general law viz. Section 304A of Indian Penal Code as it renders the accused culpable for the same offence as described in Section 92 of the Act in respect of death or bodily injury arising due to contravention of the provisions of the Factories Act. .

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12. The above conclusion is drawn from the well established principle of law that, “when a later statute describes an offence created by an earlier statute and imposes different punishment or varies

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the procedure, the earlier statute is repealed by implication.” This principle of statutory interpretation is reiterated by the Hon’ble Supreme Court in T.BARAI vs. Henry Ah Hoe and another (AIR 1983 SC 150) in the following words :

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“25. It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell v. Brown(1) Lord Cambell put the matter thus :

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"It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute See also Smith v. Benabo (1937) 1 A11 ER 523 (2) In Regina v. Youle, (1861) 158 ER 311-316 (3) Martin, B. said in the oft-quoted passage:

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"If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act."

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The rule is however subject to the limitation contained in Art. 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the sameas in the earlier Act

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i.e. when the essential ingredients of the two offences are different.’

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13. The facts on record clearly disclose that on getting information of the accident, the Deputy Director of Factories and Labour Officer rushed to the spot and took up inquiry/investigation and having ascertained that the petitioners herein contravened provisions of the Factories Act resulting in the death of five of its workers, filed a complaint before the Judicial Magistrate of First Class, Chamarajanagar on 20.11.2012

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The same was numbered as C.C. No.823/2013. It is not in dispute that the learned Magistrate has taken cognizance of the alleged contraventions punishable under Section 92 of the Act and has issued summons to the petitioners. It is also not in dispute that the said complaint is filed prescribed under Section 106 of the Act. Within limitation Undoubtedly, the proceedings in C.C. No.823/2013 are initiated in accordance with law and the same are pending consideration of the learned Magistrate. That being the case, Chamarajanagar Police could not have registered a case in Crime No.240/2012 against the petitioners for the alleged offence punishable under Section 304-A of Indian Penal Code and proceeded with the investigation and filed a charge sheet for the above offences, nor could the learned Magistrate have taken cognizance of the said offence and issued summons to the petitioner. Needless to say that in view of specific bar contained in Section 105 of the Act, learned

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Magistrate could not have assumed jurisdiction to take cognizance of the alleged offence except upon the complaint filed by the authorized officer viz., Inspector appointed under the Factories Act. Moreover, learned magistrate having already taken cognizance of the alleged offence based on the complaint lodged by the Asst. Director of Factories, in view of Section 26 of the General Clauses Act, cognizance taken by the learned Magistrate and the summons issued to the petitioners to face the charges for the alleged offence under Section 304-A of Indian Penal Code being legally untenable cannot be sustained.

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14. In view of the above factual and legal position, the registration of FIR against the petitioners by respondent No.1 and consequent investigation and submission of the charge sheet paving way for the prosecution of the petitioners for the alleged offence under Section 304-A of Indian Penal Code as well as cognizance taken by the learned Magistrate and the prosecution initiated against the petitioners is held as illegal, without jurisdiction and a clear case of abuse of process of court.

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For the above reasons, the petition is allowed. The proceedings in C.C.No.823/2013 initiated against the petitioners are quashed.”

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11. This Court in the afore-extracted judgment was answering a question whether initiation of prosecution under Section 304A of the IPC while prosecution for offences punishable under Section 92 of the Act was legally permissible. Whether parallel or simultaneous prosecution was legally permissible,

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considering various judgments of the Apex Court and the purport of Section 304A, a coordinate Bench of this Court has held that registration of FIR and consequent investigation and submission of charge sheet for alleged offence under Section 304A were all illegal, without jurisdiction and an abuse of process of the Court. The factors obtaining in the case at hand are totally identical to the factors that were obtaining in the aforesaid criminal petition. The offence under Section 287 of the IPC which deals with negligence in respect of machinery also would not be available to be undertaken against the petitioners in the light of the very same reasoning rendered by the coordinate Bench in Ananthakumar’s case. Therefore following the judgment of the coordinate Bench in the case of Ananthakumar (supra), I deem it appropriate to pass the following:

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O R D E R

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(i) The Criminal Petitions are allowed and the proceedings against the petitioners in C.C.No.515 of 2015 and C.C.No.215 of 2018 stand quashed.

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(ii) The quashment of proceedings will not come in the way of the family of the deceased seeking any other relief in a manner known to law.”

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In the light of the issue and the case at hand also being the same that the prosecution under Section 304-A of IPC being already instituted against the petitioners, the initiation of the proceedings under Section 92 of the Act was legally impermissible. Therefore, the

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