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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 881 OF 2022
Mr.Izhar Nizamulhak Khan, Age 59 years, Occ. Service, Residing at House No. 1595, Reva Agar Road, Mira- Bhayandar (W), Dist. Thane … Applicant
Learned Public Prosecutor, High Court of Bombay, Mumbai.
2. The Investigating Officer, Mira-Bhayandar Police Station, Mira-Bhayandar (W), Dist. Thane … Respondents
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Dr.Dashrath S. Hatle for the Applicant.
Mr.S.V.Gavand, Addl.GP for the Respondent -State.
Mr.Kishor Mane, API, Bhayandar Police Station.
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JUDGMENT
1. The Applicant Accused has put forth prayer clause (a) as under: “a) This, Hon’ble Court be pleased to call for the records and proceeding in RCC No. 1528 of 2022 from of Ld. JMFC Court at Thane (Mira-Bhayandar) and after perusing the same for its correctness, legality and the propriety of the impugned FIR NO. 0047/CR No. 41 of 2022 dated 02/02/2022, instituted by the Bhayandar Police Station under the provision of Section 304A of the Indian Penal Code, be pleased to quash and set aside the same, by allowing the present application”.
2. We have considered the strenuous submissions of the learned Advocate for the Applicant and the learned Addl.PP.
3. The Applicant before us is the Factory Manager of M/s. Shree Shakti Weldtech Private Limited, a Company, registered under the provision of the Indian Companies Act, 1956 (the Act of 1956). The factory was registered under Rule 6 of the Maharashtra Factories Rules, 1963 (in short, ‘the Factories Rules of 1963’) and was issued with the factory license. The said license was renewed for the period from 1st January, 2021 to 31st December, 2022.
4. The Applicant was designated as a Factory Manager within the meaning of Rule 2 (m) of the Factories Rules of 1963. On 31st May, 2021, an accident took place in the premises of the factory at about 3.50 pm. One of the contract labourers, namely, Shri Ilyas Abdul Jabbar Sayyed, working in the factory premises, met with an accident and died on account of the injuries sustained in the said accident. It is admitted position that it was not an industrial accident, meaning that the death was not caused by an accident that occurred during the manufacturing process.
5. On 2nd June, 2021, the accident report was tendered to the Factory Inspector in Form No. 24. On 3rd June, 2021, the Senior Inspector of Vinoba Bhave Nagar Police Station, Mumbai transferred all the documents to the Bhayandar Police Station with regard to the death of Shri Ilyas Abdul Jabbar Sayyed (hereinafter referred to as the deceased), bearing Accidental Death No. 00 of 2021 under Section 174 of the Code of Criminal Procedure, 1973 (‘the Cr.PC’), vide letter bearing reference No. 3532 of 2021. After the letter was received, the Havildar, Shri Rajesh Yashwant Keni, called upon the Occupier of the factory and directed him to furnish the documents such as attendance sheet of the employees as on 31st May, 2021 and the factory license, as well as the letter of declaration about the Factory Manager. The Factory Inspector visited the factory premises on 2nd July, 2021 and served the inspection remarks upon the Occupier.
6. On 5th July 2021, the Factory Inspector served a show cause notice upon the Occupier of the factory, Shri.Chetan Shah. The Occupier replied to the show cause notice on 12th July, 2021. The Factory Inspector prosecuted the Occupier by filing a criminal complaint bearing SCC No. 7738 of 2021 before the learned Chief Judicial Magistrate at Thane.
7. In view of the death of Shri Ilyas Abdul Jabbar Sayyed, the Company paid an ex-gratia amount of Rs. 1,00,000/- to the father of the deceased on 28th October, 2021. His service legal dues were also paid.
8. On 2nd February, 2022, a First Information Report (FIR) bearing No. 0047 of 2022, was lodged against the present Applicant, who was the Manager of the Factory. The Investigating Officer filed the charge-sheet on 31st March, 2022. By order dated 30th August, 2021, passed below Exhibit ‘F’ in SCC No. 7738 of 2021, the learned Chief Judicial Magistrate recorded the admission of guilt by Shri Chetan Shah and after noting that Shri Shah has pleaded guilty voluntarily, he was convicted under Section 252 of the Cr.PC and sentenced to pay fine of Rs.50,000/- for the said offence, under Rule 73-F (a) and (b) of the Factories Rules of 1963, punishable under Section 92 of the Factories Act, 1948 (‘the Factories Act’).
9. The grounds raised by the Applicant in this proceeding, can be summarized as under: (a) The filing of the FIR is improper and erroneous; (b) The lodging of the FIR by the Bhayander Police Station under Section 304A of the Indian Penal Code, 1860 (the IPC) is unwarranted and uncalled for in view of the decision of the Competent Court in SCC No. 7738 of 2021;
(c) Since the Occupier was prosecuted under Section 73-F
(a) and (b) of the Factories Rules of 1963 read with Section 92 of the Factories Act, the Applicant cannot be prosecuted for the same offence, since the provisions under which the Occupier has been prosecuted, would override Section 304 A of the IPC;
(d) The Investigating Officer should have called for a report from the Factory Inspector in respect of the said incident and it being an industrial accident, the Applicant cannot be prosecuted under Section 304A of the IPC. (e) The proposed prosecution of the Applicant is hit by Article 20 (2) of the Constitution of India since the lodging of the FIR against the Applicant would amount to a second prosecution and it would amount to punishment for the same offence as the Occupier of the factory has already been prosecuted. (f) The ingredients under the provisions of the Factories Act and the Rules made thereunder, are one and the same as Section 304A of the IPC. (g) The provisions of the Factories Act and the IPC cannot go together and the special law will prevail over the general law. (h) Though intimation of the accident was given to the Vinobha Bhave Police Station after the death of Ilyas on 31st May, 2021, yet an FIR has been lodged by the Investigating Officer against the Applicant on 2nd February, 2022.
(i) There has been a delay in filing the FIR.
(k) The Investigating Officer would not be in a position to prove the offence against the Applicant under Section 304 A of the IPC.
(l) A safety belt was provided to the deceased and since it broke and the helmet separated from the deceased, the fall of the deceased from the roof of the factory resulted in his death.
(m) After the Occupier was prosecuted under the provisions of the Factories Act, the Manager cannot be prosecuted by invoking Section 304A of the IPC. (n) A person cannot be punished twice for the same offence considering Section 26 of the General Clauses Act, 1897 and prosecuting the Occupier and now prosecuting the Applicant, is out of one and the same incident.
10. The learned Advocate for the Applicant has placed reliance upon the following judgments: i) Manipur Administration, Manipur v. Thokchom Bira Singh[1]; ii) Kurban Hussein Mohamedalli Rangawalla Versus State of Maharashtra[2]; iii) Neeraj Verma Versus State of Madhya Pradesh[3]; iv) Ananthakumar Versus State of Karnataka[4]; v) Ajeet Vikram Bahadur Singh Versus State of Maharashtra[5].
11. The learned Addl.PP has vehemently opposed this Application by contending that the Applicant was never prosecuted under the provisions of the Factories Act and the Rules thereunder. Initially, after the accident was reported to the Police Station, considering Section 92 of the Factories Act. The Occupier was prosecuted considering the fact that he was the person who was responsible for all acts, omissions and commissions in the factory under the provisions of the Factories Act, more particularly, with reference to any accident that may take place in the factory premises while operating the factory.
12. During investigation and before the learned Chief Judicial Magistrate could convict the Occupier under Section 252 of the Cr.PC 1 1965 (1) CRI LJ 120 2 (1965) 2 SCR 622 3 (2016) 149 FLR 784 4 2019 Cri.L.J.3825 and the provisions of the Factories Act, it was revealed in the investigation that, the present Applicant had unauthorizedly directed the deceased to climb up the roof of the factory and install asbestos sheets. The deceased was an employee of the factory and was discharging duties as a welder. No specific agency was called in to repair the torn roof of the factory. Because the Manager directed the deceased, though he was a trained welder and had nothing to do with the installation of the sheet on the roof, he obeyed the Manager and climbed up the roof.
13. The learned Addl.PP further submits, that according to the Investigating Officer, safety measures were not followed. According to the Applicant, a safety belt was given to the deceased. The belt broke since the deceased was destabilized due to strong winds and he fell down from the roof onto the floor in the factory. The death occurred on account of serious injuries caused to the chest and the abdomen of the deceased. Since the Investigating Officer noticed during investigation that the Manager had actually issued the direction, that an FIR has been registered.
14. The learned Advocate for the Applicant has submitted in rebuttal that a statement was made before the learned Chief Judicial Magistrate that a belt was provided along with a helmet, to the deceased.
15. We have considered the above submissions of the respective sides. The FIR is registered against the Applicant and Section 304A of the IPC has been invoked. It is stated in the FIR that the cement sheets on the ceiling of the factory had got damaged. For the purpose of letting natural light, fiber sheets were also installed at different locations on the ceiling. The factory was manufacturing railway bogie chassis and various workers including the deceased were performing their work on the said manufacturing activities. The deceased was a welder. Several co-workers gave statements to the Investigating Officer during the investigation that the Applicant/Manager had called upon the workers as to whether they could mend the broken sheets on the ceiling. Ilyas was one of the workers, who climbed up the ceiling. While trying to fix a new sheet on the ceiling, he fell down from the roof. Iron plates and machines were lying on the floor and that caused injuries to the deceased.
16. Taking into account these aspects which were revealed during investigation, the Investigating Officer formed an opinion that the death of Ilyas was not an incident that occurred while performing the normal duties in the factory for which he was appointed. Since he was sent to the roof to do a job which he was neither trained for, nor was he engaged for, the Investigating Officer formed an opinion that it was because of the order of the Manager that the deceased went to the roof to do the said work.
TWO ISSUES
17. Considering the submissions of the Applicant and the learned Addl.PP, we find that there are two aspects in this matter. Firstly, whether Article 20 (2) of the Constitution of India would have an applicability in the light of the submissions of the Applicant that no person shall be prosecuted or punished for the same offence, more than once. Secondly, was it permissible for the Investigating Officer to register an FIR against the Applicant after noticing his role while carrying out investigation in the incident which was reported to the Police Station.
CONCLUSIONS
18. In Manipur Administration, Manipur (supra) and Kurban Hussein Mohamedalli Rangawalla (supra), the issue had reached the Hon’ble Supreme Court after the conviction of the Accused. In Manipur Administration, Manipur (supra), it was held that the rule of issue-estoppel is not the same as the plea of double jeopardy. Section 403 of the Cr.PC does not preclude the applicability of this rule of issueestoppel. While dealing with the judgment of the Judicial Commissioner of Manipur setting aside the conviction and sentence by the Sessions Judge, it was concluded as under: “It is, therefore, clear that s. 403 of the Criminal Procedure Code does not preclude the applicability of this rule of issue-estoppel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of this Court which has accepted it as a proper one to be adopted, we do not see any reason for dis- carding it. We might also point out that even before the decision of this Court this rule was applied by some of the High Courts and by way of illustration we might refer to the decision of Harries, C. J. in Manickchand Agarwala v. The State. Before parting, we think it proper to make one observation. The question has sometimes been mooted as to whether the same principle of issue-estoppel could be raised against an accused, the argument against its application being that the prosecution cannot succeed unless it proves to the satisfaction of the Court trying the accused by evidence led before it that he is guilty of the offence charged. We prefer to express no opinion on this question since it does not arise for examination. As stated earlier, if Pritam Singh's(') case was rightly decided, it was conceded that the decision of the Judicial Commissioner was right. The appeal, therefore, fails and is dismissed. Appeal dismissed”. On facts, the Hon’ble Supreme Court dismissed the Appeal preferred by the Manipur Administration against the acquittal of the Respondent.
19. In Kurban Hussein Mohamedalli Rangawalla (supra), the Factory Manager was prosecuted for an offence punishable under Section 304A of the IPC. The allegation of causing death of seven workers by rash and negligent act of the Accused, was tried before the Trial Court which handed down a conviction to the Appellant. The Bombay High Court also confirmed the said conviction.
20. On merits, the Hon’ble Supreme Court concluded that the death must be a direct result of the rash or negligent act of the Accused and the act must be ‘efficient cause’ without intervention of another's negligence. It was concluded that the conduct of the Factory Manager, did not lead to the fire in the factory premises. Hence, the Factory Manager was acquitted of the offence punishable under Section 304A of the IPC, but was convicted with punishment of six months rigorous imprisonment for the offence punishable under Section 285 of the IPC.
21. The view taken by the learned Single Judge in Neeraj Verma (supra) and Ananthakumar (supra) and the view taken by the Division Bench of this Court in Ajeet Vikram Bahadur Singh (supra), crystalize the law that a person cannot be prosecuted and punished twice for the same offence.
22. The learned Advocate for the Applicant is unable to convince us that because the Occupier was prosecuted under Section 92 of the Factories Act, the present Applicant is deemed to have been prosecuted, though he was a Factory Manager. Whether the safety belt malfunctioned or broke or whether the helmet was worn by Ilyas and it got blown away, will have to be left for the trial Court to consider since this would be a matter of documentary and oral evidence.
23. Only for the purpose of dealing with this Application under Section 482 of the Cr.PC, we have considered the contents of the FIR which indicate that the Investigating Officer noticed during investigation and from the statement of other co-workers that the deceased had climbed up the roof since it was the Manager who called upon the workers to deal with the said problem. The deceased was not engaged for performing the said task. He would not have climbed up the roof, had the Manager not indicated to him that one sheet of the roof is broken and mending work was required to be undertaken.
24. Being an Occupier, the Joint Director, Industrial Safety and Health, Thane, deemed it appropriate to prosecute the Occupier under Section 92 of the Factories Act, which is in tune with the settled principle of law. Every such accident has to be investigated into and the Department of Industrial Safety and Health can refer the issue to the Chief Judicial Magistrate for prosecuting the Occupier. While the investigation was on and the case was registered before the Chief Judicial Magistrate, the Investigating Officer found that the role of the Applicant may have led to the death of Ilyas and Section 304A of the IPC was invoked. This would not mean that the prosecution of the Occupier is deemed to be prosecution of the Applicant/ Factory Manager. A deeming fiction would not be applicable in such circumstances in criminal jurisprudence. Under criminal law, a particular person can be prosecuted and after trial, can be convicted. If it is noticed that under the IPC, an act committed by a particular person, who is not the Occupier so as to be prosecuted under Section 92 of the Factories Act, we do not find that the Investigating Officer could be faulted for having registered an offence against the Applicant on the basis of the investigation carried out.
25. It is, thus, apparent that the present Applicant was never prosecuted earlier and the registering of the FIR against him, does not amount to his second prosecution. In view of the above, we do not find that this Application for quashing the FIR could be entertained.
27. ‘Sans merite’, this Criminal Application is dismissed. (RAJESH S. PATIL, J.) (RAVINDRA V. GHUGE, J.)