Sinha K.C. vs State of Bihar and Another

N.K. Sinha, J.—Heard Sri P.N. Pandey learned counsel for the petitioner and Sri S.Y. Hussain, learned counsel appearing for the State.

The petitioner is the Manager of M/s. Tata Engineering and Locomotive Company Limited Jamshedpur (hereinafter the ''Company''). He has filed this application u/s 482 of the Code of Criminal Procedure (hereinafter the ''Code'') for quashing of the order dated, June 25, 1997, passed by the learned Judicial Magistrate. 1st Class, Jamshedpur, taking cognizance against him u/s 92 of the Factories Act, 1948 in a complaint case C/2 and No. 14/97.

Only such of the facts as are necessary for disposal of the application need be stated. A prosecution report was filed by the Factory Inspector O.P. No. 2 before the Chief Judicial Magistrate alleging that the petitioner the Manager of the Company as also Saroj J. Gandhi occupier had committed an offence u/s 92 of the Factories Act for violation of the provisions of Section 88 of the said Act read with Rule 36 of the Factories Rules, 1950 inasmuch as one Sri Mithilesh Prasad Kumar had complained of headache while he was on duty inside the company on January 27, 1997 and instead of immediately rushing Sri Kumar to hospital for treatment he was allowed to be taken to his home where he died. Learned counsel for the petitioner argued that even if the prosecution report together with the statements of two witnesses namely Sri S.K. Haldhar, Senior Engineer and Sri A. Islam, a worker of the Crane Maintenance Forge Section are taken into consideration they do not disclose any material on the basis of which any case for violation of the provisions of the Factories Act and the Factories Rules is made out so as to justify taking cognizance for an offence against the petitioner u/s 92 of the Factories Act.

Even if the allegations mentioned in the prosecution report on the basis of which cognizance was taken are taken on their face value all that is disclosed is that Sri Mithilesh Prasad Kumar (deceased) had reported for duty in Crane Maintenance Section in the early hours of morning on March 27, 1997 when he complained of severe headache to another worker Md. Islam is then said to have informed Sri S.K. Haldhar, Section Incharge about the same and on the instructions of Sri Haldhar Md. Ezaz Islam had given a lift to the deceased on his moped and reached him to his house at Govindpur. According to the prosecution report the members of the family of the deceased seeing his condition deteriorating had taken him to the hospital but he died on the way. According to the prosecution report the petitioner had violated the provisions of the Factories Act and the Rules framed thereunder by not immediately removing the deceased to the hospital after he had complained of pain in his head.

Learned counsel for the petitioner argued that on the materials contained in the prosecution report the deceased had himself complained of pain in his head and there was nothing on the record to suggest that the pain had occurred on account of any accident which the deceased got in course of performance of his duties inside the factory/ company. The statements of Sri S.K. Haldhar, Sr. Engineer, and A. Islam which have been made a part of the prosecution report and a copy of which has been filed in this application go to show that the deceased on his own request was taken to his home. In other words there was nothing on the record to suggest that the petitioner as the Manager of the Company had violated the provisions of Section 88 of the Factories Act which required notice of certain accident to be given to the authorities. Since there was no allegation that any accident had occurred inside the factory premises the provisions of the aforesaid Section were not attracted in the present case. It was also argued that Rule 36 of the Factories Rules 1950 was also not attracted for it only deals with the notification of accident by the Manager of the factory and as already observed earlier there was no material on the record to show that any accident took place inside the factory and hence the provisions of the said Rule has no application. Learned counsel for the petitioner argued that there being complete absence of any material on the basis of which any violation of the provisions of the Act or the Rules could have been disclosed no valid order of cognizance u/s 92 of the said Act could have been passed and the prosecution in so far as the petitioner is concerned is an abuse of the process of the Court and its quashing is necessary to secure the ends of justice.

In the circumstances this application is allowed and the impugned order taking cognizance against the petitioner as also his criminal prosecution on that basis is hereby quashed.