Orissa High Court
Ramesh R Pai & Another vs State Of Odisha & Another ……. … on 29 January, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 2834 of 2022
(In the matter of an application under Section 482 of the Criminal Procedure Code, 1973)
Ramesh R Pai & another ....... Petitioners
-Versus-
State of Odisha & another ....... Opposite Parties
For the Petitioners : Mr. S. K. Dash, Advocate
For the Opp. Party No.1 : Mr. S.R. Roul, Addl. Standing Counsel
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 20.09.2024 :: Date of Judgment: 29.01.2025
S.S. Mishra, J.
1. In the present petition, the petitioners have invoked the
jurisdiction of this Court under Section 482 of the Cr.P.C. seeking
quashing of the entire criminal prosecution launched against them and
the order dated 31.08.2020 passed by the learned S.D.J.M., Dhenkanal
in 2(c)CC No.11(A) of 2020, whereby the learned Court below has
taken cognizance of the offence punishable under Section 92 of the
Factories Act 1948 and accordingly summons have been issued to the
accused to face the trial.
2. The complaint case has been initiated at the instance of the
opposite party No.2, the Assistant Director of Factories and Boilers,
Dhenkanal Zone, Dhenkanal.
3. The allegation against the petitioners in the complaint, is that, the
petitioner No.1 was the Director and COO whereas the petitioner No.2
is the Head O&M of M/s. GMR Kamalanga Energy Limited,
Dhenkanal and they were working in the said company since long.
The opposite party No.2 being the Assistant Director of Factories and
Boilers, Dhenkanal Zone, Dhenkanal filed a complaint case before the
Court of the learned S.D.J.M., Dhenkanal which was registered as 2(c)
CC No.11(A) of 2020. In the said complaint, he alleged that M/s.
GMR Kamalanga Energy Limited, Dhenkanal for the purpose of
transportation of ash from Ash Pond to different locations, gave
service order to one M/s. Samal Builders Pvt. Ltd. On 01.06.2020 at
about 9.14 P.M., one Adikanda Behera, who was working as a truck
Page 2 of 13
driver of M/s. Samal Builders Pvt. Ltd. entered with his truck through
material gate and parked his vehicle near the ash loading point and
was waiting there for his turn. The loading of the ash into the dump
truck was done through an Excavator. The complainant further alleged
that, after reaching Lagoon -1, Adikanda Behera parked his truck 20
mtrs away from the loading point queuing behind two other dump
trucks. At 11:00 P.M., Adikanda Behera stepped out to attend the call
of nature. As the loaded truck left, the next vehicle reversed to take
position for loading. While reversing, the driver of the truck namely
Sisir Kumar Chhatar heard a sound and found Adikanda Behera lying
near the left rear wheel of his truck. The Excavator helper informed
his supervisor at 11:15 P.M., who rushed to the scene and despite
immediate rescue efforts, Adikanda Behera was declared dead at the
District Headquarters Hospital, Dhenkanal. Hence, this case.
4. Heard Mr. Soubhagya Kumar Dash, learned counsel for the
petitioners and Mr. S.R. Roul, learned Additional Standing Counsel
appearing for the opposite party No.1-State.
Page 3 of 13
5. The fatal accident took place on 01.06.2020 at about 11.00 P.M.
at the Lagoon-1 of ash loading point. On the next day, i.e., on
02.06.2020 the incident was informed to the concerned authority over
phone. Subsequent thereto, the information was also furnished in the
prescribed format, i.e., Form No.18 on 02.06.2020.
6. On the basis of the aforementioned factual background, the
Opp. Party No.2 had filed a complaint before the learned S.D.J.M,
Dhenkanal on 25.08.2020 which was registered as 2(c)CC No.11(A)
of 2020. Accordingly, the learned Court below has taken cognizance
of the offence under Section 92 of the Factories Act, subsequently
summons have been issued to the accused persons to appear and face
the trial.
7. Mr. Dash, learned counsel for the petitioners has attacked the
impugned order by which cognizance of the offences punishable
under Section 92 of the Factories Act has been taken by the learned
Court below, primarily on the ground that a parallel proceeding has
also been initiated regarding the same incident by registering an F.I.R.
at the instance of the wife of the deceased. The said G.R. Case No.605
Page 4 of 13
of 2020 has been registered for the alleged commission of offences
punishable under Sections 279/304-A of the I.P.C.
Mr. Dash, learned counsel for the petitioners has contended that
registration of two different cases under two different provisions of
law pertaining to the same incident is prejudicial and would not
sustain the scrutiny of law. Apart from that, Mr. Dash, has also
ventured into the merits of the case to impress this Court that prima
facie no case is made out against the petitioners.
8. In so far as the first contention is concerned, it is eminent from
the record that the F.I.R. has been registered at the instance of the wife
of the deceased being G.R. Case No.605 of 2020 arising out of
Kantabania P.S. Case No.52 of 2020 for the offences under Sections
279/304-A of the I.P.C. against one Shishira Chhatar. The present
petitioners are not arrayed as accused in that case. The fact scenario of
the G.R. Case No.605 of 2020 registered against one Shishira Chhatar
is running in completely a different parlance whereas the allegation in
the present complaint case is pertaining to the offence under Section
92 of the Factories Act. The petitioners are the occupier and are liable
Page 5 of 13
for the offence under Section 92 of the Factories Act, which is
absolutely a separate offence under the special statute. Therefore, the
petitioners cannot take the plea of dropping of the present proceeding
in view of the proceeding being initiated against a third person by the
wife of the deceased under the general provision of law i.e. the Penal
Code.
9. Mr. Dash, has relied upon the judgment of the Hon’ble Supreme
Court in the case of J.K. Industries Limited Etc. vrs. The Chief
Inspector of Factories and Boilers and others reported in AIR
Online 1996 SC 1129. The relevant part of the said judgment relied
upon is reproduced as under:-
Thus, we are of the opinion that proviso (ii) to Section
2(n) when considered in relation to Section 92 of the
Act does not offend Article 21 of the Constitution of
India either.
That Section 92 is a perfectly valid piece of legislation
insofar as it makes the occupier or manager of a
factory guilty of an offence for contravention of any of
the provisions of the Act or the rules made thereunder,
even if the actual contravention may not have been
committed by the occupier or the manager, is not
disputed or doubted before us and, therefore, we are
unable to appreciate how the provision contained in
proviso (ii) to Section 2(n) can render the said proviso
read with Section 92 invalid or unreasonable or how itPage 6 of 13
offends Article 19(1)(g) of the Constitution by defining
an occupier to be only the director of the company.
Article 19(1)(g) of the constitution guarantees to a
citizen the right to practice any profession or to carry
on any occupation, trade or business. This right,
however, is subject to Clause (6) of Article 19 which
lays down that nothing in sub-Clause (g) of Article
19(1) shall affect the operation of any existing law
insofar as it imposes or prevents the State from making
any law imposing in the interest of the general public
reasonable restrictions on the exercise of the right.
Clause (6) of Article 19 is intended to strike a balance
between individual freedom and social control.
Keeping in view the object of the Act, we must look to
the reasonableness of the provision requiring the
nomination of a director as the occupier of the factory
under Section 7 of the Act, with a view to determine
whether proviso (ii) to Section 2(n) has a rational
nexus with the object which the legislature seeks to
achieve. It was, as already observed, with a view to
secure proper and effective enforcement of the
provisions of the Act and the Rules made thereunder,
that the legislature considered it appropriate to fasten
the liability for proper implementation of the Act on
one of the directors by insisting that in the case of a
company, which owns the factory, one of the directors
shall be deemed to be the occupier for all purposes,
including prosecution and penalty in respect of offences
committed under the Act. The Legislature has attempted
to plug the loopholes, which existed earlier and
enabled the directors to escape their liability by
passing on the buck, as they say, to an employee. It is
much too obvious that when top persons of the
company are made conscious of their responsibilities
and duties for the implementation of the safety and
welfare measures in a factory and to carry out the
duties prescribed under the Act, at the pain of
punishment in case they choose to overlook, there are
much greater chances that proper care would be takenPage 7 of 13
for maintenance of the factory, particularly in regard to
the safety measures and welfare of workers.
Relying upon the judgment of the Hon’ble Supreme Court in
the case of J.K. Industries Limited Etc. (supra), Mr. Dash, learned
counsel for the petitioners contended that the Inspector of factories
have overlooked the provisions of Section 97 and 111 of the Factories
Act at the time of inspection.
10. Mr. Dash, learned counsel for the petitioners has further relied
upon the judgment of the Bombay High Court in the case of Mylan
Laboratories Limited vrs. The State of Maharashtra, reported in
2021 LCL 9785 Bombay and contended that the victim/deceased is
not a worker within the meaning of Section 2(I) of the Factories Act.
Therefore, there would not be any liability of the petitioners under
Section 92 of the Factories Act towards deceased worker. He has
relied upon paragraphs-12 & 14 of the said judgment, which reads as
under:-
<12. In the matter in hand, the applicant under takes
manufacturing of medicines. The construction of a
staircase for a building near the main gate was
undertaken by the applicant but by engaging the
construction Company. The deceased was an employee ofPage 8 of 13
that Construction Company and was not directly engaged
by the applicant in any activity much less touching the
manufacturing process. So, even if the definition of worker
is borne in mind, the deceased was not employed either
directly or through any agency for utilizing his services in
manufacturing process of the drugs, which is a sine qua
non for him to be a worker under that definition. This is
what has been precisely held in the cases of State of
Kerala Vrs. V.M. Patel and Richard Rushton (supra).
Even the Single Judges of the Karnataka High Court have
taken similar view in the case of D. Kumarswamy and Ors.
Vs. State of Karnataka, MANU/KA/3011/2013, Aristides
Protonotarios and Ors. Vs. State of Karnataka;
MANU/KA/6589/2019 and Shailendra K. Jain and Ors.
Vs. State of Karnataka; MANU/KA/0626/2020. In view of
such state of affairs, even if the allegations in complaint
are accepted at its face value, it cannot be said that the
applicant was having any duty towards the deceased as is
contemplated under Section 7-A of the Act so that a
punishment under Section 92 can be meted out.
14. True, it is, as has been emphatically laid down in the
case of S.M. Datta (supra) and followed in the case of
Skoda Auto Volkswagen Indian Pvt. Ltd. (supra) even if
the principles laid down in the case of State of Haryana
V/s Bhajan Lal: 1992 Supp (1) SCC 335, are to be
followed, it is only in the exceptional cases that this Court
is expected to step in and quash a proceeding under
Section 482 of the Code of Criminal Procedure. The Court
has to be cautious and only if it results in abuse of the
process of law that the complaint should be quashed.
Cautioning ourselves with these riders put by the Supreme
Court in the case of Bhajan Lal, S.M. Datta and Skoda
Auto (supra) the peculiar facts and circumstances of the
matter in hand clearly demonstrates that so far as Section
7-A (2) of the Act is concerned, the deceased was not a
worker within the meaning of Section 2(1) of the Act and
consequently there would be no liability of the applicant
towards him. So far as alleged violation of Rule 4(2) of the
Rules is concerned, the complaint is vague even in respect
of the allegations and the documents annexed to the
Page 9 of 13
complaint also do not substantiate the allegations
muchless prima facie, rather there is not a single
document annexed to the complaint to prima facie
subscribe to its genuinesses in respect of the alleged
violation of the approved plan. In my considered view,
therefore, the present case constitutes one such exception
carved out by the Supreme Court where this Court should
invoke the powers under Section 482 of the Code of
Criminal Procedure in quashing the complaint.=
11. Mr. Dash, further contends that similar view is echoed by the
Hon’ble Supreme Court in the case of S.K. Sinha, Chief Enforcement
Officer vs. Videocon International Ltd. and Ors., reported in 2008
INSC 105 and held thus:-
<The expression ‘cognizance’ has not been defined in the
Code. But the word (cognizance) is of indefinite import. It
has no esoteric or mystic significance in criminal law. It
merely means ‘become aware of’ and when used with
reference to a Court or a Judge, it connotes to take notice
of ‘judicially’. It indicates the point when a Court or a
Magistrate takes judicial notice of an offence with a view
to initiating proceedings in respect of such offence said to
have been committed by someone.
‘Taking cognizance’ does not involve any formal action of
any kind. It occurs as soon as a Magistrate applies his
mind to the suspected commission of an offence.
Cognizance is taken prior to commencement of criminal
proceedings. Taking of cognizance is thus a sine qua non
or condition precedent for holding a valid trial.
Cognizance is taken of an offence and not of an offender.
Whether or not a Magistrate has taken cognizance of an
offence depends on the facts and circumstances of each
case and no rule of universal application can be laid down
as to when a Magistrate can be said to have taken
cognizance.
Page 10 of 13
Chapter XIV (Sections 190-199) of the Code deals with
‘Conditions requisite for initiation of proceedings’. Section
190 empowers a Magistrate to take cognizance of an
offence in certain circumstances. Sub-section (1) thereof is
material and may be quoted in extenso.
1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under
Sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such
offence has been committed.=
12. I have carefully gone through the documents placed on record
and also analyzed the judgments cited at the Bar. The contention
raised by the petitioners in the present petition is poised with the
disputed facts. While considering the legality of the order taking
cognizance by the learned Court below, this Court need not venture
into the disputed questions of facts. The other ground on merit raised
by the learned counsel for the petitioners is also not tenable under law
because it is admitted case on record that the petitioners are the
occupiers of the factory, where the incident had taken place and the
defense raised by the learned counsel for the petitioners to explain
their role needs to be gone into and thrashed out in the trial only. It is
Page 11 of 13
apt to rely upon the judgment of the Hon’ble Supreme Court in the
case of The State Of Gujarat vs Afroz Mohammed Hasanfatta
reported in (2019) 20 SCC 539 under paragraph-21 of its judgment
stated that :
21. In summoning the accused, it is not necessary for the
Magistrate to examine the merits and demerits of the
case and whether the materials collected is adequate for
supporting the conviction. The court is not required to
evaluate the evidence and its merits. The standard to be
adopted for summoning the accused under Section
204 Cr.P.C. is not the same at the time of framing the
charge. For issuance of summons under Section
204 Cr.P.C., the expression used is <there is sufficient
ground for proceeding…..=; whereas for framing the
charges, the expression used in Sections
240 and 246 IPC is < there is ground for presuming that
the accused has committed an offence….. =. At the stage
of taking cognizance of the offence based upon a police
report and for issuance of summons under Section
204 Cr.P.C., detailed enquiry regarding the merits and
demerits of the case is not required. The fact that after
investigation of the case, the police has filed charge
sheet along with the materials thereon may be
considered as sufficient ground for proceeding for
issuance of summons under Section 204 Cr.P.C.
Applying the above principle laid down by the Hon’ble
Supreme court to the present case, the material on record provides
sufficient grounds for issuance of summons under Section 204 of
Page 12 of 13
Cr.P.C. Further, the defence raised by the petitioners regarding their
role in alleged incident pertains to the merits of the case, which can
only be adjudicated upon in the trial.
13. Therefore, at this stage, I am not inclined to entertain the
present petition. Accordingly, the CRLMC is dismissed.
However, dismissal of this petition shall not preclude the
petitioners for resorting to any other remedy available to them under
law. If any remedial measure under law is mooted by the petitioners in
application, the same shall be decided on its merit without being
influenced by the observation of this Court in the present judgment.
……………
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 29th January, 2025/ Swarna
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Reason: Authentication
Location: High Court of Orissa
Date: 31-Jan-2025 19:02:15 Page 13 of 13
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