Rabindra Agarwal vs State of Jharkhand and Another

R.R. Prasad, J.—This application has been filed for quashing the entire criminal Proceeding of Gamharia (Kandra) P.S. case No. 17 of 2008 (G.R. No. 146 of 2008) including the order dated 16.1.2009 passed by the learned Chief Judicial Magistrate, Seraikella wherein cognizance of the offences under Sections 287, 337, 338 and 304A of the Indian Penal Code has been taken.

The facts giving rise this application are that one Lal Tudu gave his Fardbeyan on 2.3.2008 stating therein that while he, being a contract labour, was on duty along with other labourers on 28.2.2008 at kiln, a unit of factory known as M/s. Adhunik Alloys and Power Limited, they were informed that the temperature of the kiln has fallen to zero. On getting this information, when he and other three labourers came to transfer Chute along with the Assistant Engineer for making inspection, sponge iron fell down from the inner roof of the chamber, as a result of which temperature shoot up suddenly to a great extent and on account of that they received bum injuries. It has been alleged that Management never cared to supply safety equipment} though the labourers were working at dangerous places and due to negligence on the part of the Management, the accident took place.

On the said Fardbeyan, Gamharia (Kandra) P.S. case No. 17 of 2008 was instituted under Sections 287, 337, 338 but subsequently Section 304A of the Indian Penal Code was added as one of the workers succumbed to burn injuries.

On completion of investigation, charge sheet was submitted under Sections 287, 337, 338 and 304A of the Indian Penal Code against the petitioner, Manager of the factory, namely, M/s. Adhunik Alloys and Power Limited and other accused persons. Upon which cognizance was taken of the aforesaid offences against the petitioner and others.

Being aggrieved with that order, this writ application has been filed.

Learned Counsel appearing for the petitioner submits that the allegation made in the FIR certainly falls within the ambit of the provision as contained in Section 92 of the Factories Act and therefore, if any prosecution lies that lies under the Factories Act, if the authorities would have found the case of negligence, as the Factories Act being special legislation would prevail over the provision of the general law.

It was pointed out that when similar question arose before this Court for consideration, this Court taking into consideration the provision as contained in Section 4 of the Code of Criminal Procedure did hold in a case of Binod Kumar Das and Another Vs. State of Jharkhand and Another, that the prosecution under the general law on the allegation which falls within the province of the special legislation is not permissible. Similar is the case here as the allegation, upon which FIR was lodged and the cognizance of the offence has been taken under the Indian Penal Code, certainly falls within the ambit of Section 92 and hence, any prosecution under the general law that is to say under the Indian Penal Code would be bad.

I do find sufficient force in the submission. There has been no doubt that the allegation upon which FIR was lodged comes well within the ambit of the provision as enshrined u/s 92 of the Factories Act and as such prosecution under the general law in view of Section 4 of the Code of Criminal Procedure is not permissible and this proposition of law has already been laid down in a Case of Binod Kumar Das and Anr. v. State of Jharkhand and Anr. (supra).

Accordingly, the order dated 16.12009 under which cognizance of the offences under Sections 287, 337, 338 and 304A of the Indian Penal Code has been taken is hereby quashed, so far as the petitioner is concerned.

In the result, this application is allowed.