K.S. Harish and Others vs State of Karnataka

A.N. Venugopal Gowda, J.—The petitioner is the Proprietor of M/s. Prakruthi Agro Cocopeat Industries, situated at No. 1859/01, 10th Main, Banashankari II Stage, Kodihalli, Bengaluru -70. Mr. K.S. Harish S/o Shekarappa, is the designated occupier of the said factory. On 27.01.2012, one Smt. Chandramma, working at coconut coir wastage stock yard met with an accident, sustained grievous injury and succumbed on the spot. A complaint having been filed by Mr. Rangappa, Srirampura Police registered FIR in Crime No. 14/2012 against the petitioner and said K.S. Harish, for the offences punishable under Sections 287 and 304(A) r/w Section 34, IPC. After investigation, charge sheet having been filed, cognizance of the offences under Sections 287, 304(A) r/w 34, IPC, was taken, CC. No. 262/2012 was registered against the petitioner and said K.S. Harish. Summons having been issued, petitioner and said K.S. Harish, arraigned as accused Nos. 2 and 1 respectively having appeared were enlarged on bail by the Additional Civil Judge and JMFC, Hosadurga. Seeking quashing of the said proceeding, this petition was initially filed by both K.S. Harish and the petitioner, occupier and proprietor respectively of said M/s. Prakruthi Agro Cocopeat Industries. By an order dated 29.07.2015, petition insofar as K.S. Harish is concerned was dismissed as withdrawn by recording submission of Sri. S.B. Pavin, learned advocate. This petition was confined for consideration of the case of Mr. Varun C.P., arraigned as accused No. 2 in C.C. No. 262/2012, on the file of Additional Civil Judge and JMFC, Hosadurga. Petitioner having informed the Labour Officer and the Commissioner of Workmen''s Compensation regarding the said tragic incident in his factory premises, pursuant to a claim made by the LRs'' of said deceased and the judgment and award dated 02.02.2012 vide Annexure- G, Rs. 4,26,510/- was deposited as the workmen compensation and is stated to have been released in favour of the claimants.

The Assistant Director of Factories, Davanagere Division, appointed as the Inspector of Factories, under the Factories Act, 1948, filed a complaint vide Annexure-E against C.P. Varun, by showing him as the Occupier and his father - C.P. Prasanna, as the Factory Manager of M/s. Prakruthi Agro Cocopeat Industries. Cognizance of the offence was taken and C.C. No. 232/2012 was registered by the Civil Judge and JMFC, Hosadurga, on 26.04.2012. In response to the summons, both accused having appeared and pleaded guilty, by an order dated 08.08.2012, in exercise of the power under Section 252, Cr.P.C., the accused were convicted for the offences punishable under Section 21(1)(iv)(b) of Karnataka Factories Act, 1948 and sentenced to pay fine of Rs. 40,000/- each, and in default of payment of fine to undergo SI for a period of one month. The accused were convicted for the offence punishable under Rule 3(1) of the Karnataka Factories Rules, 1969 and sentenced to pay fine of Rs. 5,000/- each, and in default of payment of fine to undergo SI for a period of one month. They were convicted for the offence punishable under Rule 4(1) of the Karnataka Factories Rules, 1969 and sentenced to pay fine of Rs. 5,000/-, in default, to undergo SI for a period of two months. The total fine amount imposed was Rs. 1,00,000/- and all the sentences were ordered to run concurrently. The fine amount has been deposited, which is clear from the order sheet of the case annexed to this petition.

This petition was filed to quash the proceedings of C.C. No. 262/2012, on the file of Additional Civil Judge and JMFC, Hosadurga, on the ground that in view of the prosecution in C.C. No. 232/2012 and the judgment of conviction and the order of sentence dated 08.08.2012 passed therein, there is abuse of process and insofar as accused No. 2 i.e., Varun C.P., who is the proprietor land not the occupier of the factory premise''s; the occupier being accused No. 1 - K.S. Harish.

Sri. S.B. Pavin, learned advocate contended that on account of the judgment passed in C.C. No. 232/2012 and the sentence imposed therein, the respondent is unjustified in prosecuting the petitioner in respect of the same incident, again in C.C. No. 262/2012. Reliance was placed on the decision in Ashwini Kumar Singh & another v. State of Jharkhand, 2007 LLR 866 and an order dated 10.11.2014 passed in Crl. P. No. 6042/2014.

Sri. B. Visweswaraiah, learned HCGP, fairly conceded that the dual prosecution in respect of the same violation under the Factories Act, which was the subject matter of consideration in C.C. No. 232/2012 and the sentences imposed vide order dated 08.08.2012, there cannot be prosecution of accused No. 2 in C.C. No. 262/2012.

In the case of Ashwini Kumar Singh (supra), an incident had taken place within the factory premises and on the information given, preliminary enquiry was conducted and factory inspector filed a complaint against the Occupier and Director of the company for the violation under Section 92 of Factories Act i.e., for the violation under Sections 32(a) and 33(i) of the Act. The said persons having been sought to be proceeded, under Sections 287, 288, 304A and 338 of IPC and the same having been questioned by filing a petition under Section 482, Cr.P.C., it has been held that both proceedings shall not run concurrently i.e., for the same cause of action. Upon considering the materials which were brought on record, it has been held as follows:

"7. The law is settled in the various decisions that the special law shall prevail over the general law but both shall not run concurrently for the same cause of action. I find that when the complaint case has been instituted vide CI 2 No. 5211/05 under Special law (Factories Act, 1948) the continuation of the criminal prosecution against the petitioners for the offence prescribed in the general law of Indian Penal Code is unsustainable. In both the statutes viz. under section 304A,. Indian Penal Code (general law) and under section 92 of the Factories Act, 1948 the sentence prescribed to the convict is similar but with additional fine to the extent of Rs. One lakh in the Special Act to the occupier and in this manner the extent of fine is more server in special law and both cannot proceed at a time. The criminal prosecution of the petitioners, therefore, under Indian Penal Code is unsustainable."

In Crl. P. No. 6042/2014 vide order dated 10.11.2014, it has been held as follows:

"3..........In this view of the matter, since the company has named the Occupier and the Factory Manager who shall be responsible to face the action in respect of contravention of the provisions to the Factories Act and the Rules made there under, it is appropriate that the proceedings against present petitioners be quashed or otherwise it results in the company being prosecuted twice for the same offence against two sets of officers. Consequently, the proceedings initiated in C.C. 540/2013, is hereby quashed."

Since the petitioner was prosecuted in respect of the very same incident in C.C. No. 232/2012 and in view of the judgment of conviction and the sentence of fine having been deposited, the respondent has abused the process of law in prosecuting the petitioner in C.C. No. 262/2012. The prosecution of the petitioner, yet again in respect of the same incident i.e., in C.C. No. 262/2012 would amount to double jeopardy.

In the result, petition is allowed and the proceedings of C.C. No. 262/2012, on the file of the Additional Civil Judge and JMFC, Hosadurga, insofar as accused No. 2-Varun C.P. S/o C.P. Prasanna, Proprietor of M/s. Prakruthi Agro Cocopeat Industries, Bengaluru - 70, shall stand quashed. However, in view of me clarification by Sri. S.B. Pavin, that the occupier of the factory premises is K.S. Harish, arraigned as accused No. 1, in C.C. No. 262/2012, shall proceed in accordance with law.