Allowed

Smt Maligireddy Alivelu and Another v. the Inspector of Factories and Another

Telangana HC17 Oct 2022CRLP/7864/2017

Case brief

AI extract

What is this about?

The High Court allowed the criminal petition, setting aside the trial court's cognizance order due to tolling of limitation. It held the complaint filed after 27.06.2012 was time-barred as the inspection date triggered the limitation, and the offence did not involve disobeying a written order.

What did the court decide?

The orders dated 21.06.2017 passed in Crl.M.P.No.1830 of 2016 in C.C.No.1368 of 2015 are set aside.

Smt Maligireddy Alivelu and Another Vs the… — Writ and Judicial Review | Telangana HC (2022)

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[^325s ]

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IN THE HIGH^{COURTFORTHE STATE OF TELANGANA} AT HYDERABAD

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MONDAY ,THE SEVENTEENTH^{DAYOF OCTOBER} TWO THOUSAND AND^{TWENTY TWO}

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PRESENT

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THE HONOURABLE DR.^{JUSTICED.NAGARJUN}

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CRIMINAL PETITION^{NO: 7864 OF 2017}

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Between:

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Smt Maligireddy Alivelu,^wJo. _^{Ramanja.Reddy, Sri RarnanjaneyaRiceMill,} Kukkadam" Villaie, Vemulapally^{Mandal, Nalgonda District'}

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z. rrrtlnireddv Raftinia neciOv,'^{Manager,S-/o. Latchi Reddy,Aged55} -Yrs, Sri - ii;;;;1";,tvi'ni"E i'airr. kuti(joa, Viilase, Vemulapallv Mand'al, Nalgonda District

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...PETITIONERS/ACCUSED

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AND

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'1 . The Inspector of Factories, Nalgqndg ll Circle, Nalgonda District' Z. fne Starie "f Telangana, A'ep Ui^{its Public Prosecuior,HighCourt Bldgs, Hyderabad.}

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...RESPONDENTS/COMPLAINANT

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Petition under section⁴⁸² of^{cr.P.cprayingthat in the circumstances} stated in the Memorandum^{of Groundsof criminalPetition, the High court may be} pieased to call for the records relating^{to orders passedin Crl MP No. 1830/2016} in CC No. 1368/2015 on^{the tile of Judicial Magistrate of First Class,Miryalaguda} and^quash the same as^illegal.

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.A. NO: 1 OF 202'l

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Petition under Section^{482 of cr.P.cprayingthat in the circumstances} stated in the Memorandum^{of Groundsof criminalPetition, the High court maybe} pieased To extend the interim stay^{grantedon 191912017 passedin CrlP} No.7 86412017 until further^orders.

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l.A. NO: 1 OF 2019

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Petition under section^{482 of cr.P.cprayingthat in the circumstances} stated in the Memorandum^{of Groundsof criminalPetition, the High court maybe} pieaseo to extend the interim^{stay granted on 30--12-2018 passed in crl.P.No.} 7864 of 2017 until further^orders.

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l.A. NO: 2OF 2019

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Petition under section⁴⁸² of^{Cr.P.C praying that in the circumstances} stated in the Memorandum^{of Groundsof criminalPetition, the High court maybe}

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pleased to extend t re stay granted on 2710312019^passed in Crl.P.No^{7864 of} 2017 until further orc ers

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I.A. NO: 2 OF 2017((;RLPMP. NO: 13614 OF 2017)

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Petition unde Section 482 of Cr.P.C^pray'ing that ir the^{circumstances} stated in the Memorrtndum of Grounds of Criminal^{Petition, tl e High Court may be} pleased may be plez sed to extend the Stay granted on 19-9-.lcr17^passed in Crl.P. No.786412017 until urther orders.

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l.A. NO :^'t OF 2017((;RL PMP. NO: 8316 OF 2017)

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Petition unde Section 482 of Cr.P.C^praying that in the^{circumstances} stated in the Memorirndum of Grounds of Criminal Petition, tte^{High Court may be} pleased to grant sta' of all further proceedings in CC No. 13,)8/20'15 on the file of Prl Judicial Magistrzte of First Class, Miryalaguda^pending disposal of^Criminal Petition.

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l.A. NO: 1 OF 2020

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Petition under Section 482 of Cr.P.C^praying that i1 the^{circumstances} stated in the Memor: ndum of Grounds of Criminal Petitron, tl'e^{High Court may be} pleased to extend tl e interim stay granted on 1,9-09-2017 prilssed in Crl P No, 7864 of 2017 until fu ther orders

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This Petition :oming on for hearing, upon^perusing :he Memorandum^of Grounds of Crimina Petition and upon hearing the argurrents of Sri^KIRAN PALAKURTH, Advoc ate for the Petitioner and the Public^Prc secutor^{on behalf of} the Respondent No.2 and None appeared for the Respondent^No.2

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The Court made the following: ORDER

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-t ,'

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THE HON'BLE DR. JUSTICE D. NAGARJUN

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CRIMINAL PETITION No.7864 of 2OL7

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ORDER:

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This petition is frled questioning the orders dated 21.06.2017 passed in Crl.M.P.No.1830 of 2OL6 in C.C.No.1368 of 20 15 on the liie of Judicial Magistrate of First Class, Miryalguda.

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The facts in brief as per the compiaint are that the L"t respondent/ Inspector of Factories of Nalgonda-ll Circle, has filed a complaint on the file of the Judicial Magistrate of First Class, Miryalguda, alleging that he has inspected the factory belonging to petitioner No.1 on 27.06.2072, which is Sri Ramanjaneya Rice Mill, situated at Kukkadam village, Vemulapally Mandai and found that the petitionei's failed to comply with the provisions of the Factories Act (for short, "the Act") arld the Rules and the petitioners have acted in contravention of the provisions of the Act and the Rules ald thereby 1iab1e for punishment under Section 92 of the Act.

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It is stated further that as per Sectiol r 6 and Rule 3(1)(b) of he Rules, petitioner No.1 (1) fail:cl to get the plans app. 'oval from the Director of Factor ie s, A. p. and manufactu ring process (Paddy shelling and ric:e polishing) is being ca:ried on the premises, (2) failed to :btain a valid license frc m the Inspector of Factories, Ir algonda ald carrying o n the manufacturing process ir the factory premises e nd (3) failed to provide secure an ct substantial weld mesh box guard fully enclosing the V- lelt drives of paddy cleener. rubber she1ler, destoner, arrl rice sieve. The said c tmplaint was taken cognizance bl. the learned Magistrate for the offences under Section 5 and Rules 3(1Xb), 4(1 arld (6) of the Rules and Section 21(1)(iv)(b) of the Act against A1 and 42.

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Aggrir:ved by the same, petitioner N<,. I has filed Crl.M.P.No. 1B3O of 2016 in C.C.No.1368 of 2015 alleging that the complaint is filed beyond the period of limitation and therefc re, taking cognizalce itself is irregurlar. The l"t respondent /Inspector of Factories Iiled a cour.l-r:r and after full fledgec enquiry the trial Court has d srnissed the

petition. Aggrieved by the same, the present petition is filed with the following grounds:

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Heard the learned counsel for the petitioners and the Sri S.Ganesh, learned Additional Public prosecutor and perused the record.

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Now, the point for determination is whether the orders dated 21.06.2017 passed ln Crl.M.P.No.1830 of 2016 in C.C.No.i368 of 2015 can be set aside?

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The simple allegation of the de-facto complainant/ 1"t respondent is that as per the complaint he has inspected Sri Ramanjaneya Rice Mill belonging to petitioner No.1 situated at Kukkadam village, Vemulapally Mandal, Nalgonda District on 27.06.2012 and found violations under Section 6 and Rules 3(1)(b), a(1) and (6) and Section 21(1)(iv)(b) of the Act, thereby he field a complaint on 16.1o.2012.

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It is submitted by the learned counsel for the petitioners that Section 106 of the Act mandates that the complaint has to be filed within three months from the

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date of kn,rwledge of the offences and therebl.filing of the complaint tn 17.1O.2012 is beyond the periorl ,rf limitation and thereby this petition has to be allowed.

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Learr ed Additional public prosecutor on the other hand subn itted that as per Section 106 of the Act, though the comple int is required to be Iiled within -hree months from the date of knowledge of the alleged o lfence by the Inspector, he proviso to Section l06 speaks rhat if offence consists of disobeying of the written orders made by the Inspector, :omplaint may be filed within six months from the date o n which the offence is alleged t c have been committed. According to the learned Additional public Prosecutor after inspection by the l *t rer;ponclent on 27.06.2012, he has issued a show caus3 notice on I8.O7.2OI2 to the petitioners stating that thele are certain violations f tund in the factory when he ha; visited the factory on 27.06.2012 and asked the petitioners to show cause. It s submitted further by the learn ecl Assistant Public Pror ,ecutor that since the petitionet.s have not responded 10 the said notice, the l"t respond,:nt r.r,ill have

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six months time from 27.06.2012 thereby the complaint

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filed is well within the limitation

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Section 106 of the Act reads as under:

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"1O6. 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:

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Provided that where the offence consists of disobeying a written order made by an Inspector, compiaint thereof may be made within six months of the date on which the offence is alleged to have been committed.

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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;

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(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."

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On plain reading of Section 106 of the Act, as quoted above, it is crystal clear that the Act mandates that within

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three months from the date of knowledge of commission of the offence to the Inspector, the complaint is required to be .lited, \

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1 1 . [n th e case on hand, admittedly, the ] ,,1 respondent has visited the factory on 22.06.2012 and fot.nd that there are certair violations under the Act, thereby tl.re limitation for frling tlre complaint starts to run from 2?.06.2012 and will expire by 26.09.2012. The complaint should have been filed on or before 26.09.2012. However, admittedly, the complzint is frled on 16.10.2012 alter expiry of period of limitaticn. Section 468 Cr.p.C., also imposes a bar to take cogn: zance of the offence after lapse of period of limitation l rrescribed by the statute.

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The serious contention of the leam e<l Assistant Public Pror,ecutor is that as per the proviso of Section 106 of the Act, if the offence consist of disobeyir g5 the written order madt by the l"t respondent and then ht,rvill have six months for filing the complaint from the date of knowledge of the comr nission of the offence. Therefore, tlre question is whether t he offence atlegedly committed consist of disobeying the written order made by the [rrspector or violation of the provisions or the Rules made u nder the Act.

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I 3. The counter filed by the I st respondent in the trial Court which is part of the record go,to show that he has visited M/s. Sri Ramanjaneya Rice Mill, Kukkadam Village, belonging to the petitioners on 22.06.2012 and, observed violations under Section 6 and Rules 3(1)(b), a(1) and (6) and Section 21(l)(iv)(b) of the Act. Therefore, this statement of the l.t respondent would go to show that he has realised that the petitioners have committed violations under the Act. On 27.06.2012 only the 1"t respondent has got the knowledge about the commission of the offences by the petitioners.

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If at all the offence is committed only on account of not responding to the show cause notice issued by the lst respondent then, as rightly submitted by the learned Additional Public Prosecutor the limitation could have been extended six months. However, respondent No.l came to know that the offence is committed on 27.O6.2OL2 when he was visited the premises.

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Therefore, it is a clear case that the limitation starts to run from 27.06.2012 and thereby as per Section 106 of

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the Act, t re complaint could have been filed u.ithin six months uhich expired by 26.09.2012. Ilence, taking cognizance of the offence is barred by the provisions of Section 463 Cr.P.C., is incorrect.

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In J. I. Irani and another vs. State of Jharkhandr, the Hon'bl: Supreme Court at paragraphs l3i, 14 and 15 heid as un ler:

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" 13. The High Court took the view that it :ann,tt be said that the complainant came to knc rl ol the comn ission of the offence in the preliminary- inrluiry condr cted on 5-3- 1989 by the Chief In: ioectr>r of Facto'ies in his presence by distinguir;hrng the differr nce between "knowledge of an acci lent,, and "knov ledge of commission of the offence,,. 'the High Court observed that the complainant c< u [d have know: r of the breach onlv when the <:ause of accidr nt, which was inquired into, was reported by the C rief Inspector of Factories in his repo;:t, u.hich was r:ceived by the complainant on 23-4-.99O; and it war only from the inquiry report that it could be gathe: ed that the accident of fire took plac: because of bre rch of provisions of the law.

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We have heard the matter and consi ierec. the issue at length and we find ourselves r rnable to uphol I the reasoning of the High Court. )ombekar case la.D. Jambekar v. State of Gujaral, (19:'.3) 3 SCC 524 : 1973 SCC (Cri) 1088 : 1973 SCC (L&S) 1621 is of no rssistance in deciding the present case:. In that case this Court accepted that from a read:nq ol' the report of the incident it was difficult for r.n yor e to come .o the conclusion that an offence undr:r Se<;tion 21(1)(:u)(c) has been committed. The Irrscector,s staten rent that the report did not con\rey tc lLim any knowl :dge that the offence was commi [[cd was

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'^{(zore) rs scc t} r

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accepted and this Court concluded that the Inspector did not acquire the knowledge of the "commission of the offence" when he received the report. The case before us is entirely different. Here the Inspector was himself a part of the team, which conducted the preliminary inquiry between S-3-19S9 and 6_3_19g9. As observed earlier, the inquiry is a detailed investigation going into all aspects of the occurrence. In these circumstances it is not possible to hold that the Inspector of Factories, who undertook a detailed inquiry into the accident along with the Chief Inspector of Factories, remained ignorant that the offences in question have been allegedly committed. It is proper to assume that an officer, conducting an investigation, comes to know what has happened, that being the only purpose of the investigation.

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We hnd that it has not been disputed at any stage that the complainant was not associated with 3.td^{did notparticipate in thepreliminary} investigation from 5-3- 1989 to 6-3- 1989 along with the Chief Inspector of Factories. This is obvious from the letter/report of preliminary inve stigation dated g_ 3-1989. The Inspector must be taken as having acquired knowledge of the alleged commission of the offence soon before or at least on g-3-1989, when the report of preliminary investigation was sent to the Commissioner of Labour, Bihar. In fact, a perusal of allegations of the offence against the appellants, makes it clear that an inquiry or investigation at the site of the accident was not necessary in order to gain knorvledge of the alleged breach. For instance, the failure to submit "plans of pandals and structures" as required under Section 6(l)(aa) of the Act read with Rule 8 of the Bihar Factory Rules, 195O;,.not drawing up an "on-sight" emergency plan and disaster control for pandals and structuies as required under Section a1-B(4) of the Factories (Amendment) Act, 1987 are alleged breaches, which could have been ascertained even lrom the office record of the Inspector. The third breach is not .^{taking precautionsin case ol fire} as envisaged under ''-section 38 of the Factories Act, l94g read'with Rule 62 of the Bihar Factories Rules, 1950 or providing a safe means of escape in the event of hre for all persons, and providing necessary equipment and

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facili ies for extinguishing fire, can be ,:,a sily and must have been ascertained at the fir-st in:;r::ction of the s ite. We are clearly of the view that l. was not nece{ sar!' for the Inspector to have lr,aited to receive the r, :port on 23-4- 1990 from the Governrr ent under cover of the letter dated 21-4-199O clirectinq hrm to Iile a complaint for the prosecution of the e_1t pellants. We t rus agree with the view of the leartred Chief Judirial Magistrate, Jamshedpur and disrLsree rvith the v ew of the High Court.,,

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In H:mant Madhusudan Nerukar anc. another vs.

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State of Iharkhand and another2, the Figh Court of

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Jharkhanc at Ranchi held at paragraph 10 as under:

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."10. It is an admitted fact that the comlrlaint was llled rn 2O.O9.2OI2. However, the occurr:nce took place on 19.06.2012. From the complain, itsell in parag:aph nos. 3 and 4, it is clear that it rras in the know edge of the Inspector that the occurrerLce took place on 19.06.2012 and there is no pr tvision of condc nation of delay. The revisional courl's finding about the knowledge of date of liling of the repc,rt is erronr ous as Section 106 of the said A:t clearly speak; that no Court shall take cognizan:e: of anv offenc -- punishable under this Act unless ::mplaint therec f is made within three months of th : date on which the alleged commission of the offenc,: oarne to the k rowledge of an Inspector. The Court has also perus,:d the cognizance order dated 24.O9.2C12 and finds that the leamed Judicial M agist:ate, Jamsl.edpur has taken cognizance in formz t iherebv he ha:; lilled up the lines and section. It ap1 e;rs thai he ha; not applied his .iudicial mind in orcer taking cogniz rnce. The complaint petition itsell js time barrec under Section 1O6 of the Factories A<:r_.

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'?2021^SCCOnlin Jhar 624

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17 . In view of the above and considering the facis and circumstances of the case, taking cognizance of offence by the trial Court against the petitioners is beyond the period of limitation. Hence, the criminat petition is allowed and the orders dated 21.06.2017 passed in Crl.M.p.No.1830 of 2016 in C.C.No.1368 of 2015 by the Judicial Magistrate of First Class, Miryalguda are hereby set aside.

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Miscellaneous petitions, if any, shall stald closed.

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Sd/.N.CHANDRA SEKHAR RAO ASSISTANT REGISTRAR //TRUE COPY// I

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': t_./ SECTIOMOFFICER

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To,

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1 . The Principal J' rdicial Magistrate of First Class, Miryalaguda, Nalgonda District. 2. The lnspector of Factories Nalgonda ll Circle, Nalg6nda District.^- 3. Two CC to the Public Prosecuior, High Court for the State of Telangana at Hyderabad. [OUT]

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