TMI Blog2022 (6) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... ce cannot be looked into by the Revisional Court especially when such plea is sought to be established by any other evidence or document which is yet to be proved in accordance with law. The said aspect however does not apply to the evidence collected by the Investigating Agency and sought to be relied upon by the agency for proving its case against an accused. The Revisional Court has not properly appreciated the evidence available on record and its admissibility in law along with necessary ingredients required for prosecuting a person for commission of the offence in question. Petition allowed. - Hon'ble Judges Vinod S. Bhardwaj, J. For the Appellant : Sumit Kalyan, Advocate for Gursimran Singh, Advocate For the Respondents : Amarjit Kaur Khurana, DAG DECISION Vinod S. Bhardwaj, J. 1. The present petition has been filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') challenging the order dated 16.07.2019 (Annexure P-2), passed by Sub-Divisional Judicial Magistrate, Sultanpur Lodhi, whereby, charge has been framed against the petitioners in case FIR No. 310 dated 19.11.2018 under Sections 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners appeared before the Court and eventually vide order dated 16.07.2019, charge against the petitioners along with Parshotam Singh (non petitioner) was framed for offence under Section 304-A IPC, which reads thus:- That on 19.11.2018 at about 11:00 am in the area of Dudianwal, you all accused were running Sidhu industrial Corporation for making ground of boxes which were delivered to railway coach factory Kapurthala and to Rae Bareli and the machines and bedding press installed in the factory were already in expiry date and by using expiry bedding press in your factory, you all accused committed rash and negligent act, due to Kewal Singh and Balbir Singh were died and your this act of using expiry bedding machine falls within the preview of causing death of both the afore said persons not amounting to culpable homicide and as such, you all thereby committed an offence punishable under section 304A IPC and within the cognizance of this Court, And, I hereby direct that you be tried by this Court. 2.5 Aggrieved of the said order a revision petition was filed by the accused, wherein it was specifically urged out that the petitioners Dilpreet Singh and Dhanpreet Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a separate proprietorship firm by the name of Manjit Techno Fab, which is situated in Industrial Area II, Khor Rae Bareli, Uttar Pradesh. The registration certificate under the GST was appended as Annexure P-5. He further submits that petitioner-Dilpreet Singh runs a separate sole proprietorship firm by the name of Nagina Engineering Works having its separate GST registration. The said proprietorship of petitioner-Dilpreet Singh is situated in Village Dhudhianwal, Sultanpur Road, Kapurthala itself. The registration certificate under the GST has been appended as Annexure P-6. Insofar as Sidhu Industrial Corporation is concerned (proprietorship where the incident occurred), the same is in the ownership of Parshotam Singh and registration certificate is appended with the petition as Annexure P-7. 4. Learned counsel appearing on behalf of the petitioners has vehemently argued that the petitioners are not employed in the factory Sidhu Industrial Corporation and have their own sole proprietorship. Despite completion of investigation by the Police, there is no evidence collected by them to reflect as to how and under what manner the petitioners were responsible for the affairs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmanent 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.] Section 93. Liability of owner of premises in certain circumstances.-- (1) Where in any premises separate buildings are leased to different occupiers for use as separate factories, the owner of the premises shall be responsible for the provision and maintenance of common facilities and services, such as approach roads, drainage, water supply, lighting and sanitation (2) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out of the provisions of subsection (1). (3) Where is any premises, independent or self-contained, floors or flats are leased to different occupiers for use as separate factories, the owner of the premises shall be liable as if he were the occupier or manager of a factory, for any contravention of the provisions of this Act in respect of-- (i) latrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputing for the purposes of any of the provisions of this Act the total number of workers employed, the whole of the premises shall be deemed to be a single factory.] 6. By placing reliance on the same, it is also argued that the liability under the Factories Act, 1948 has to be fastened upon the occupier and manager of the factory and as the petitioners do not fall under either of the said category, they cannot be prosecuted. He further points out that the liability of owner has also been prescribed under Section 93 of the Factories Act 1948 under a specific set of circumstances. 7. While propagating the said argument, he further summits that 'Occupier' has been defined under Section 2(n) of the Factories Act, 1984 and the petitioners do not fall under the said categories. In support of his contention, he has made a reference to the judgment of the Hon'ble Supreme Court in the matter of Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra, AIR 1965 (SC) 1616. He has further made a reference to the judgment of the High Court of Karnataka passed in the matter of Mr. Ananthakumar Ors. Vs. State of Karnataka Ors, 2019 Cr.L.J. 3825 to contend that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) on his chest. Swaran Singh sustained serious injuries on his leg. Thereafter, the Owners/accused with the help of other workers got Kewal Singh (now deceased) and Balvir Singh (now deceased) admitted to Government Hospital Kapurthala where they died. Then a ruqa was written against the owner Parshottam Singh and his sons Dhanpreet Singh and Dilpreet Singh (petitioner No. 1 and 2) who were looking after the machines of the factory and accounts, and sent to the Police Station for registration of present FIR. 5. That it is respectfully submitted that the Impugned Order dated 16.07.2019 passed by the Ld. Trial Court for framing the charge against the petitioners and their father/co-accused Parshottam Singh and the Impugned order dated 08.11.2019 whereby revision petition is dismissed, have been passed by Ld. Trial Court rightly. 6. That it is respectfully submitted that the present petitioners were looking after and supervising the work and machines of Sidhu Industrial Corporation along with their father Parshottam Singh, and thus, have been rightly named as accused. The petitioners were aware about the conditions of the machines and the power press which were outdated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners as well as the fact that GST registration reflects that Sidhu Industrial Corporation (where the incident in question had occurred) was a sole proprietorship owned and registered in the name of Parshotam Singh (non-petitioner). She also could not refer to any material on the basis whereof it could be ascertained that equipment/machinery was subjected to any examination by any expert and that any report has been obtained by the prosecution to prove that the machinery in question was outdated and had outlived its life. DISCUSSION: 10. I have considered the submissions advanced by the counsel for the respective parties. 11. The submission of the petitioners that the incident in question would be governed by the Factories Act 1948, which is a special statute and would not fall under the Indian Penal Code, does not inspire much strength. Reference was made by the counsel for the petitioners to the statement of objects and reasons of the Factories Act, 1948 which read as thus:- STATEMENT OF OBJECTS AND REASONS The existing law relating to the regulation of labor employed in factories in India is embodied in the Factories Act, 1934. Experience of the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specialised, and hazardous nature of the processes employed in the factories it is too much to expect Inspectors to possess an expert knowledge of all these matters. The detailed provisions contained in the Bill will go a long way in lightening their burden. Some difficulties experienced in the administration of the Act, specially relating to hours of employment, holidays with pay, etc., have been met by making the provisions more definite and clearer. The penalty clauses have also been simplified. An important provision has also been made in the Bill empowering Provincial Governments to require that every factory should be registered and should take a licence for working to be renewed at periodical intervals. Provincial Governments are further being empowered to require that before a new factory is constructed or any extensions are made to an existing one, the plans, designs and specifications of the proposed construction should receive their prior approval. 12. Perusal of the same shows that the aforesaid provisions are largely with regard to the working conditions and for protection of the workers in relation to hazards as a result of working conditions in violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the matter of The State of Maharashtra Anr. Vs. Sayyed Hassan Sayyad Subhan Ors, in Criminal Appeal No. 1195 of 2018 decided on 20.09.2018 held as under:- 7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. 1. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. 2 The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows: Provisions as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; T.S. Baliah v. ITO with reference to Section 52 of the Income Tax Act, 1922 and Section 177 of the IPC; Collector of Customs v. Vasantraj Bhagwanji Bhatia, with reference to the provisions of the Customs Act 1962 and the provisions of the Gold (Control) Act, 1968; State of Bihar v. Murad Ali Khan with reference to the provisions of Sections 447, 429 and 379 of the IPC and provisions of the Wildlife (Protection) Act, 1972; Avtar Singh v. State of Punjab with reference to Section 39 of the Electricity Act, 1910 and the provisions of theft under the IPC; and Institute of Chartered Accountants of India v. Vimal Kumar Surana with reference to the provisions of the Chartered Accountants Act, 1949 and offences under Sections 419, 468, 471 and 472 of the IPC. Elucidating on the provisions of Section 4 read with Sections 21 and 22 of the Mines Regulation Act and the offence under Section 379 of the IPC, it was observed in Sanjay (supra): 69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. (emphasis supplied) 16. Hence, in view of the authoritative pronouncement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be described as criminal. A mere carelessness is not sufficient for conviction. While 'rashness' amounts to doing of an act with an awareness of the consequences that follow coupled with a hope that they do not; 'negligence', is a breach of duty imposed by law. In order to establish criminal liability, the facts must be such that the negligence of the accused went beyond a mere matter of comprehension and showed disregard for life and safety of others (Russell on Crimes: 1960 Edition). The prosecution must prove that the rash and negligent act of the accused was proximate cause that resulted in death, even though it may not be an immediate cause. 'Criminal negligence' would move a step higher where the act must involve gross and culpable neglect to exercise that reasonable care and precaution as was required to guard a person or individual against any injury. A mere occurrence of an accident does not necessarily attract criminal liability when occurrence of such an event cannot be attributed to be a direct or inevitable consequence of the act of the person accused. 18. In order to attract Section 304-A in IPC the following essential ingredients have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the charge has arisen, it was the imperative duty of the accused to have adopted. 21. Section 304-A IPC has been explained by the Hon'ble Supreme Court in the matter of Mahadev Prasad Kaushik Vs. State of U.P. Another, bearing Criminal Appeal No. 1625 of 2008 decided on 17.10.2008. The relevant paragraphs of the same are extracted as under:- 304A. Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 28. The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without 'intention' or 'knowledge'. The words not amounting to culpable homicide in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on 12-11-62 in preparing batch No. 211105 was the cause of deaths and whether those deaths were a direct consequence of the appellants' act, that is, whether the appellant's act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679 the act causing the deaths must be the cause causans; It is not enough that it may have been the causa sine qua non . This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cogent material available on record, wherefrom, it could have been ascertained that the petitioners were in any manner in-charge of the operations of the aforesaid proprietorship as well. The State has chosen only to make an averment in its reply that insofar as the role and responsibility of the petitioners is concerned, the petitioners were looking after and supervising the work and machinery of Sidhu Industrial Corporation and that the petitioners were aware about the conditions of the machines and power press. There is no reference to any material on the basis whereof such awareness can be ascertained. In addition thereto, it has also not been pointed out as to the involvement of the petitioners and their capacity in the industrial establishment. A person cannot be held liable for each and every criminal act that may have occurred on any premises that are held by the family. A person can be held accountable only for the accidents that take place on his premises and where his participation and role is fully established as an occupier or manager. 26. A perusal of the order passed by the Revisional Court shows that the aspect has been dealt with in the following manner:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned trial court has not framed the charge under section 337 of the Indian Penal Code as that will be covered by the charge framed under section 338 of the Indian Penal Code. So, the findings of learned trial court to pass the impugned order and of framing the charge vide impugned order are not warranting any interference finding no illegality therein vide present revision petition, so, the impugned order is hereby affirmed. 27. It is evident that despite noticing that Sidhu Industrial Corporation is a proprietorship firm, however, the Revisional Court failed to refer to any material collected by the investigating agency on the basis whereof the petitioners could be stated to be in-charge of the affairs of the said proprietorship as well. Contrary to the documentary evidence placed on record, Additional Sessions Judge, Kapurthala, held that insofar as the plea regarding whether the petitioners are owners/partners of the firm is concerned, the same is a debatable issue. The aforesaid finding is contrary to the documents placed on record. Once the established case of the prosecution is that the Sidhu Industrial Corporation was a sole proprietorship firm, there is no occasion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve carefully perused the decision of this Court in the State of Orissa vs. Debendra Nath Padhi (supra). Though the observations in paragraph 16 of the said decision seems to support the view canvassed by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the width of the powers of the High Court under Section 482 of Cr.P.C. and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case (supra). Thus we have to reconcile paragraphs 16 and 23 of the decision in State of Orissa vs. Debendra Nath Padhi (supra). We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula vide Dr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University, Sirsa Anr. JT 2008(8) SC 621. As observed by this Court in Bharat Petroleum Corporation Ltd. Anr. vs. N.R. Vairamani Anr. AIR 2004 SC 4778, observations of Courts are neither to be read as Euclid's formula n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not indicative of the evidence establishing involvement of the petitioners. 31. It is further evident from perusal of the final report that the following witnesses and the nature of their testimony has been relied upon by the prosecution to prove its case. Perusal of the same shows that there is no testimony of any expert established that the machinery deployed for use at the premises was outdated or was sub-standard having outlived its life. Moreover, there is no testimony of any witness or expert to determine the exact cause resulting in the accident and as to whether it was on account of defect of the machinery or attributable to any acts committed by the workmen deployed on the machinery. Besides, even as per the documents appended along with the final report, there is no such opinion. A criminal liability cannot be fastened against an accused merely on account of an incident. Culpable liability arises on account of the said incident having occurred as a result of rashness or negligence on the part of an accused. Unless existence of said circumstances is established against the petitioners on the strength of the document forming part of the investigation, a crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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