T. Mukherjee and Another vs State of Jharkhand and Another

R.R. Prasad, J.—As there does not seems to be any factual controversy and the case is based purely on the question of law, the matter is being disposed of at the admission stage itself.

This writ application has been filed under Article 227 of the Constitution of India for quashing the entire criminal proceeding including the order dated 16,6.2006, passed by Chief Judicial Magistrate, Jamshedpur in C-2 case No. 2345 of 2006 whereby and whereunder cognizance of the offence u/s 92 of the Factories Act, 1948 has been taken against the petitioners.

The facts of the case giving rise this application are that on 20.2.2006 Inspector of Factories, Jamshedpur, Circle 1 got telephonic information that there has been a fatal accident at Sinter Plant-1 within the premises of the factory of M/s. Tata Steel Limited, the Inspector of Factorise visited the place and made enquiry and in course of enquiry came to know that when it was found by the officials of TISCO that layers of base-mix (scale formation) have been deposited over inner surface of Bin No. 303, job was assigned by M/s. Tata Steel Limited to M/s H.K. Singhari and Company to remove scale from inside Bin No. 303 and while three workers employed by M/s. H.K. Singhari and company were removing scale from base of the conical bins, upper layer of scale caved in, as a result of which two workers out of three died under the debris of the scale and the Inspector of Factories came to the conclusion that though the workers were assigned to do hazardous works they were not provided with a safety equipments and, therefore, the accident which took place proved to be fatal.

Thus, a complaint was filed on 16.6.2006 before the Chief Judicial Magistrate, Jamshedpur alleging therein that the petitioners have contravened the provisions of Sections 36(2)(b) and 32(c) of the Factories Act, 1948 and Rule 55-A(1) and (2) of the Bihar/Jharkhand Factories Rules, 1950 punishable u/s 92 of the Factories Act and on the same day Chief Judicial Magistrate, Jamshedpur took cognizance of the offence u/s 92 of the Factories Act.

Being aggrieved with that order, this application has been filed on behalf of the petitioners.

Learned Counsel appearing for the petitioners submits that admittedly complainant came to know about the alleged commission of the offence on 20.2.2006 itself but the complaint has been filed on 16.6.2006 much after 90 days of the. alleged occurrence and hence, cognizance of the offence taken by the Court below much after 90 days of the alleged occurrence is barred by limitation u/s 106 of the Factorise Act particularly when it is not a case of continuing offence nor the case false within the parameter of Sub-section (b) of Section 106 of the Factories Act and, hence, it is fit to be quashed.

Learned Counsel appearing for the petitioners in support of his contention placed reliance of a case of T. Mukherjee and Another Vs. State of Jharkhand and Another,

Heard learned Counsel appearing for the State.

In view of the submission, the provision contained in Section 106 of the Factories Act needs to be taken notice of which reads as follows:

106 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:

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

(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;

(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.

From perusal of the provision, as referred to above, it is evidently clear that any complaint made after 90 days from the date of knowledge of the occurrence is barred by limitation. In the instant case it is apparent from the complaint petition and the enquiry report annexed herewith that the complainant came to know about the occurrence on 20.2.2006 the day when occurrence has itself taken place but the complaint petition which bears the date as 15.6.2006 was filed on 16.6.2006 much after 90 days and on the same/cognizance was taken which is certainly barred by limitation by virtue of the provision as referred to above. It would be significant to point out here that the complainant in his complaint petition has made disclosure of the fact that only after getting sanction for filing prosecution from the Labour Department of the Government of Jharkhand, the complaint was filed which is certainly beyond the period of limitation but the same be condoned and thus, prayer in the complaint petition presumably seems to have been made keeping in view of the provisions as contained in Section 470 of the Code of Criminal Procedure which speaks about the exclusion of time in certain cases in computing the period of limitation. Therefore, it would be appropriate to take notice of Sub-section (3) of Section 470 of the Code of Criminal Procedure which reads as follows:

Exclusion of time in certain cases.--(1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence, another prosecution, whether in a Court of first instance or in a Court of Appeal or revision, against the offender, shall be excluded:

Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is require for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.

No doubt under the provision, as referred to above, time consumed in obtaining consent or sanction from the competent authority, it is to be excluded while making computation of the period of limitation but the exclusion of the period is subject to condition that any sanction or consent under the law is required to be taken from competent authority. But so far Factories Act is concerned, there is no such provision which requires the complainant to take sanction or consent from any authority, rather Inspector himself is a competent authority and, therefore, the plea of exclusion of time consumed in seeking consent is never permissible under the law.

As has been found that order taking cognizance is absolutely barred by limitation, hence, the order dated 16.7.2006 taking cognizance of the offence against the petitioners as well as entire criminal proceeding of a case of C-2 No. 2345 of 2006 pending in the Court of Sri Section Priyadarshi, Judicial Magistrate, 1st Class, or his successor Court is quashed. Consequently, this application is allowed.