State of Gujarat vs Gordhanbhai G. Patel

J.R. Vora, J.—This criminal appeal is preferred by the State u/s 377 of the Criminal Procedure Code against the judgment and order passed by the Metropolitan Magistrate, Court No. 4, Ahmedabad on 29th September, 1993 whereby the present respondent Gordhanbhai G. Patel on his admitting offence came to be convicted by the learned Metropolitan Magistrate for the breach of the provisions of Section 21(1)(iv)(c) of the Factories Act, 1948, punishable u/s 92 of the said Act. Accordingly, the present respondent came to be convicted on his admitted the offence and was sentenced by the trial Court to pay fine of Rs. 500/- and hence, this appeal by the State for enhancement of sentence.

According to the prosecution case, Factory Inspector Mr. N.S. Asari filed a complaint on 18th January, 1993 against the present respondent stating that the accused, respondent herein was running a factory in the name and style of Shri Balaji Processors Private Limited at Narol, Sarkhej Road, Behind Ranipur Patia Bus Stand, Narol, Ahmedabad. The Factory Inspector, complainant visited the said factory on 16th, 19th, 22nd of September, 1992 as well as on 3rd October, 1992 and 16th October, 1992, while the factory was running. It came to the notice of the complainant that on 23rd June, 1992, in the said factory at 5.00 a.m., Worker Usmankhan Anvarkhan got injuries in Felt Department of Finishing Machine, while cotton was passing through the said machine. According to the complainant, the said machine was devised to Stream Drum and Guide Role which was dangerous devise and for which respondent - original accused was required to take safety measures for such machinery which he had not done and had committed breach of Section 21(1)(iv)(c) of the Factories Act, 1948 which was punishable u/s 92 of the Factories Act, 1948.

It appears that the accused appeared before the Court on 29th September, 1993 and gave an application to take the case on board and admitted the offence and leaned Metropolitan Magistrate, as stated above, vide order impugned in this appeal sentenced the respondent - accused to pay fine of Rs. 500/-.

Leaned APP Mr.H. L. Jani for the appellant - State was heard at length. While notice is duly served to the respondent, but he has not turned up.

It appears that there were other three cases being Criminal Case No. 191 of 1993, 192 of 1993 and 193 of 1993 before the learned Metropolitan Magistrate, but it appears that all the three cases as well as the order passed thereon by the learned Metropolitan Magistrate is not subject matter of this appeal as this appeal is preferred by the State against the order passed by the learned Metropolitan Magistrate in Criminal Case No. 190 of 1993 which was filed for the breach of Section 21(1)(iv)(c) of the Factories Act, 1948. Mostly it is urged that with the amendment in the Factories Act, 1948 with effect from 1st December, 1987, Section 92 which is only punishable section, has been made stringent and minimum punishment provided is to the fine of Rs. 5,000/- and Magistrate erred in sentencing the accused - respondent for the fine of Rs. 500/- only which is against the law and hence, the punishment is required to be enhanced.

While considering the submissions made on behalf of the State, it appears that Criminal Case No. 190 of 1993 was filed by the complainant for the breach of Section 21(1)(iv)(c) of the Factories Act and not for the breach committed for the Rules, framed u/s 87 of the Factories Act, 1948. The Criminal Cases No. 191 of 1993 to 193 of 1993 were filed by the same complainant for the breach of Rules u/s 87 of the Factories Act, 1948, but the orders passed thereon are not subject matter of this appeal which is clear from the memo of appeal.

Now Section 92 of the Factories Act, 1948 reads as under:

General penalty for offences. - Save as is otherwise expressly provided in this Act and subject to the provisions o 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 thereunder, the occupier an manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to [two years] or with fine which may extend to [one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to [one thousand rupees] for each day on which the contravention is so continued:

Provided that where contravention of any of the provisions of Chapter IV or any Rule made thereunder or u/s 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than [twenty-five thousand rupees] in the case of an accident causing death, and [five thousand rupees] in the case of an accident causing serious bodily injury.

Explanation. - In this Section and in Section 94 "serious bodily injury" means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.

From the above, it is clear that the present breach committed by the respondent - original accused is punishable by first part of Section 92 and not by second part. First part of Section 92 provides sentence subject to the provisions of Section 93 for the breach or contravention of the provisions of the Act or Rules framed thereunder to the extent that accused is liable to be punished with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to one thousand rupees for each day on which the contravention is so continued.

While second part of Section 92 of the Factories Act in shape of proviso makes provision for punishment for the breach of Rules made u/s 87 of the Factories Act which is not subject matter of the appeal, but subject matter of this appeal is Section 21(1)(iv)(c) of the Factories Act, 1948 and punishing provisions would be the first part of Section 92 of the said Act.

Though this appeal is required to be considered to the extent that the sentence awarded by the learned Metropolitan Magistrate to the present respondent - original accused is not in consonance with the penal provisions i.e. first part of Section 92 of the Factories Act, 1948. At the same time, it appears from the record that the accused had pleaded guilty while his plea was recorded by the learned Metropolitan Magistrate.

In the above circumstances, it would be in the interest of justice that after setting aside the order impugned in this appeal, Criminal Case No. 190 of 1993 be remanded to the trial Court for deciding afresh and to punish the accused sufficiently according to law if he is found guilty for the breaches complained of under the Factories Act, 1948.

In view of the above, the following final order is passed.

The order impugned in this appeal punishing the respondent, original accused Gordhanbhai G. Patel to pay fine of Rs. 500/- by the learned Metropolitan Magistrate for the breach of the provisions of Section 21(1)(iv)(c) r/w. Section 92 of the Factories Act, 1948, is set aside and the Criminal Case No. 190 of 1993 is remanded to the trial Court i.e. Metropolitan Magistrate for deciding the case afresh right from the stage of recording of plea of the accused. The accused may plead not guilty and in that case or in the case, accused pleads guilty again, the Metropolitan Magistrate shall proceed with the case according to law. The concerned Metropolitan Magistrate shall ensure the presence of the respondent before the trial Court, if necessary, by issuing non-bailable warrant, if circumstances so demand.

The appeal thus stands disposed of in the above terms.