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TMI Blog2022 (6) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... iate the controversy involved in the present case is as under:- 2.1 The FIR in question had been registered on the allegations that Parshotam Singh (non-petitioner) is the sole proprietor and owner of Sidhu Industrial Corporation situated in Village Dhudiawal Baba Deep Singh Nagar, Near R.C.F. Hussainpur. His sons Dhanpreet Singh and Dilpreet Singh (petitioners- herein) are engaged in manufacturing of the floor of the railway coaches on contract basis with RCF Kapurthala. For the said purposes Parshotam Singh and his son Dhanpreet Singh have set up Bedding Press Plasma Soap, EOT Crane No. 2, EOT Crane No. 1 in their factory and employed 70-75 labourers. It was stated that the tenure of the machines and bedding press installed in the factory had already matured, but despite being aware of the same, machinery was not replaced, thus endangering safety of the labourers. It was also alleged that instead of appointing skilled workers in the factory, they are getting the work executed from un-skilled labourers by paying less to those who do not possess any sort of experience. 2.2 On the day of occurrence, the nut-bolt studs broke, due to which the heavy press weighing 4 quintal fell d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also pointed out that the machine was not old and had been purchased on 28.03.2013. The sale letter was also appended along with the challan. Hence, it was merely a 5 year old machine. There was nothing on record to suggest that the machine had outlived its life. The said documents were also appended along with the revision petition to reflect the status of the factory as that of a sole proprietorship. 2.6 It was also pointed out that documents of incorporation of the sole proprietorship firm as well as also the GST registration etc of the factories showed they were independent sole proprietorship units and that there was no evidence on record to substantiate that the petitioners had any concern with the operation and affairs of the said unit. It was thus contended that there was nothing to substantiate a prima facie case against the petitioners herein. 2.7 That the Revisional Court however dismissed the revision petition so preferred by the petitioners after observing that as per the investigation conducted by the investigating agency, the firm was being run by Parshotam Singh along with his sons, the petitioners herein. He submitted that as per the report of the investigating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther argued that there is no report by any technical person to substantiate about the fitness of the structure and that in the absence of any such corroborative material, it cannot be perceived that the machine had to be replaced for having outlived its life or being outdated. 5. Another argument raised by the petitioners is to the effect that the offence in question would be governed by a special statute, viz. The Factories Act, 1948, as the field is occupied by a special statute and as such proceedings under the general provisions of Indian Penal Code could not have been instituted. He has drawn attention to Section 92 and 93 of the Factories Act 1948. The same are reproduced as under:- Section 92. General Penalty for offences. Save as is otherwise expressly provided in this Act and subject to the provisions of 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 and 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 exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any other common facilities provided in the premises. (4) 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 the provisions of subsection (3). (5) The provisions of sub-section (3) relating to the liability of the owner shall apply where in any premises independent rooms with common latrines, urinals and washing facilities are leased to different occupiers for use as separate factories: Provided that the owner shall be responsible also for complying with the requirements relating to the provision and maintenance of latrines, urinals and washing facilities. (6) The Chief Inspector shall have, subject to the control of the State Government, the power to issue orders to the owner of the premises referred to in sub-section (5) in respect of the carrying out of the provisions of section 46 or section 48. (7) Where in any premises portions of a room or a shed are leased to different occupiers for use as separate factories, the owner of the premises shall be liable for any contravention of the provisions of-- (i) Chapter III, except sections 14 and 15; (ii) Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said reply reproduced hereinbelow:- 3. That it is respectfully submitted that brief facts of the case as per the version of FIR are that on 19.11.2018 Special Naka bandi was done at Gate no. 3, RCF when special information was received that Sidhu Industrial Corporation is situated in Village Dhudianwal Baba Deep Singh Nagar, Near RCF Hussainpur and its owner is Parshottam Singh s/o Nagina Singh and his sons Dhanpreet Singh and Dilpreet Singh (Petitioners no. 1 and 2) manufacturer floors of railway Coaches on contract basis with Railway Coach Factory and send the same to Railway Coach Factory, Kapurthala and Rae Barelli. That to prepare all these Parshottam Singh and his son Dhanpreet Singh have set up machines i.e. Bedding press Plasma Soap, EOT Crane number 2, EOT Crane number 1 etc. at present about 70-75 labourers work in this factory. That the tenure of the machines and the bedding press is installed in this factory has matured and these are too old. Parshottam Singh and his sons are well aware about it that any time any incident can occur and loss can be caused to the life of the labour. That even then they are not paying attention towards the safety of the labour an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioners were looking after the work and affairs of the Sidhu Industrial Corporation. This fact has been duly corroborated by the injured Swaran Singh and other witness working as labourer. The story that the petitioners were neither owners nor partners of the concern Sidhu Industrial Corporation is concocted and an afterthought. Further it is submitted that the role of the petitioners shall be verified / decided by the Ld. Trial Court. The documents attached as Annexure P-5 and P6 have no relevancy with the registration of the case. It is pertinent to mention here that as per annexure P-8 Postal E-mail address pertains to Dilipreet Singh petitioner No. 2. 7. That the contents of Para No. 7 of the petition are matter of record pertaining to the GST document. However, the same is not relevant with the commission of crime as both the petitioners have been named in the FIR correctly. They were managing the work at Sidhu Industrial Corporation and used to visit the factory daily to supervise the work. 9. Ms. Amarjit Kaur Khurana, DAG Punjab has argued that the investigation of the case reflected that the petitioners were aware about the condition of the machine and power pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the large and growing industrial activities in the country, a radical overhauling of the Factories law is essentially called for and cannot be delayed. The proposed legislation differs materially from the existing law in several respects. Some of the important features are herein mentioned. Under the definition of "Factory" in the Act of 1934, several undertakings are excluded from its scope but it is essential that important basic provisions relating to health, working hours, holidays, lighting and ventilation, should be extended to all workplaces in view of the unsatisfactory state of affairs now prevailing in unregulated factories. Further, the present distinction between seasonal and perennial factories which has little justification has been done away with. The minimum age of employment for children has been raised from 12 to 13 and their working hours reduced from 5 to 4-1/2 with powers to Provincial Governments to prescribe even a higher minimum age for employment in hazardous undertakings. The present Act is very general in character and leaves too much to the rule making powers of the Provincial Governments. While some of them do have rules of varying stringency, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the petitioners has failed to point out any provision of law that merely because an offence also happens to be in violation of a special statute, the offence punishable under the Indian Penal Code would not get attracted, despite, the necessary ingredients being satisfied. As a matter of fact, Section 119 of the Factories Act has been given an overriding effect with anything inconsistent contained in the Contract Labour (Regulation and Abolition) Act 1970 or any other law for the time being in force. Learned counsel has failed to point out as to how the provisions of Section 304-A IPC would be inconsistent with the provisions contained under the Factories Act, 1948. The provision of the Factories Act, 1948 are not in substitution of any other Act but are supplemental to the same. It does not override the Indian Penal Code or laws other than those specified above. 13. The argument of the petitioners that the prosecution of the petitioners could at best only be carried out under the Factories Act, 1948 is concerned, the same is found to be without any force also for the reason that Section 26 of the General Clauses Act deals with provisions when an offence is punishable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by persons are penal and cognizable offences. A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point. 15. Furthermore, in the judgment dated 18.12.2019 passed in Criminal Appeal No. 1920 of 2019 titled as Kanwar Pal Singh Vs. State of Uttar Pradesh & Another, the Hon'ble Supreme Court held as under:- 6. This Court in Sanjay (supra) has cited several decisions wherein the challenge to the prosecution on the ground that there can be no multiplicity of offences under different enactments was resolved and answered by relying upon Section 26 of the General Clauses Act, which we would like to reproduce for the sake of convenience: "26. Provision 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 the same offence." Section 26 of the General Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take AIR 1965 SC 666, (2011) 1 SCC 534 cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code. 71. However, there may be a situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the petitioners to face prosecution for violation of the Factories Act, 1948. In the absence of the petitioners being prosecuted or being tried under the Factories Act 1948, it cannot be contended by the petitioners that as the offence in question is also punishable under a separate statute, hence they must necessarily be prosecuted under the same statute only and cannot be prosecuted under any other statute despite the ingredients of the offence being made out. 17. The same now leads this court to examine the applicability of Section 304-A of the IPC against the petitioners and as to whether the necessary ingredients for commission of the offence are applicable insofar as the status of the petitioners is concerned. For appreciating the same the cardinal philosophy for attracting the said penal provision needs to be understood. "Actus non facit reum nisi mens sit rea", a Latin expression when loosely translated would mean "an act does not render a man guilty of a crime unless his mind is equally guilty". The expression lays the foundation of administration of criminal justice in India. The maxim recognizes two necessary elements in crime - a physical element and a mental el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty must be characterized as gross negligence. 20. While rashness is acting in the hope that no mischievous consequences will ensue although there is awareness of the likelihood of such consequences, negligence is acting without the awareness that harmful or mischievous consequences will follow but in circumstances which show that had the accused exercised the caution incumbent upon him he would have had the awareness of the consequences of his act. Even the word negligence has not been defined in the Act, however, the idea of the degree of negligence that would make the act criminal can be had if the words and the phrase used in Section 279 IPC are referred to. In the context of the case in hand, negligence would be generally understood as a conduct that falls below the standard established for the protection of others against unreasonable risk of harm. The standard of conduct would ordinarily be measured by what a reasonable man of ordinary prudence would do under the circumstances. Such standard of negligence must be rated in terms of the circumstances of each case. An accused must undertake some conscious rash and negligent act entailing death of a victim before prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death. 30. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including this Court; "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that, reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted." 31. Though the term 'negligence' has not been defined in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roke out, but was also due to the overflowing of froth out of the barrels. In Suleman Rahiman Mulani v. State of Maharashtra the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person. It was held that that by itself was not sufficient to warrant a conviction under Section 304A. It would be different if it can be established as in the case of Bhalchandra v. State of Maharashtra that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the causa causans." 23. From a perusal of the aforesaid judgment, it is established that for the purpose of holding a person responsible for the offence, the consequences and act must have an immediate proximity. Thus, it would be imperative on the prosecution to establish that the consequence in question was a direct result of an act of rashness or negligence committed by the person charged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation proceedings as culminated by the investigation agency are reflecting that the said industry was being run by said Parshotam Singh along with his sons Dhanpreet Singh and Dilpreet Singh. The said industry may not be proprietorship concern of the said Parshotam Singh, but the report of investigation agency as culminated under section 173 Cr.P.C. is reflecting that he was assisted by his sons also i.e. Dhanpreet Singh and Dilpreet Singh to run that industry. Moreover, the investigation agency has also concluded that the machines of that industry, which proved fatal to the said deceased and injured were outdated machines and they already lived their life and of the expired dated machines. To use that machines by said accused persons, through that labourers, reflects their negligent act, which obviously warrants the offence punishable under section 304-A of the Indian Penal Code apart from sections 337, 338 of the Indian Penal Code. So far the defence plea of the accused persons qua Dhanpreet Singh and Dilpreet Singh not to be owners / partners of said industry is a debatable issue which has to be considered on culmination of the proceedings of the trial and this is not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement fastened with an accused to comply with the standard of caution, such person cannot be prosecuted for default thereof. The proximity of a person to the principal accused being member of the family and by carrying similar operations through no independent establishment would not render them liable for the lapses/offences that may stand committed in the factory premises of their father. 28. The submission of the State that the role and responsibility of the petitioners is to be seen at the stage of trial despite absence of any material to show their responsibility in the premises in question cannot be perpetuated and protected in a manner that would be onerous and amount to procrastination. The petitioners cannot be forced to undergo a criminal trial despite the absence of material establishing their involvement in the operations of the factory. Even though the law holds that at the stage of framing of a charge, only a prima facie case is required to be made out and that the material to be relied in defence cannot be the basis of setting aside a charge framed against an accused. However, the Hon'ble Supreme Court held in the matter of Rukmini Narvekar Vs. Vijaya Satardek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted." 29. The Hon'ble Supreme Court in a recent judgment of Mahendra KC V/s. State of Karnataka, (2022) 2 SCC 129 held that examination of a question of fact is also permissible when no offence is disclosed by the final report. In the instant case, however, the submission of the petitioners is not based upon any defence version that is yet to be established rather the same is supported from the documents that are already part of the challan and are referred to by the prosecution. Absence of evidence cannot be substituted by a mere suspicion. 30. There is no material pointed out by the prosecution showing the involvement of the petitioners in running the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid firm. They can not ordinarily be called upon to undergo rigors of protracted criminal trial only on the strength of their awareness and despite absence of any evidence to establish their responsibility. CONCLUSION: 33. In view of the circumstances noticed above and in light of the precedent judgments of the Hon'ble Supreme Court, it is apparent that the Revisional Court has failed to appreciate the submissions advanced by the petitioners and has chosen to not address the admissibility of the evidence available along with the final report and has rather proceeded on a presumption that all such aspects shall be examined at the stage of trial. Forcing a person to undergo criminal prosecution without noticing as to whether any criminal case is made out against a person on the strength of the material and evidence collected by the prosecution itself is a perpetuation of injustice. A Court of law cannot refuse to examine the existence of prima facie evidence and as to whether such evidence would support the continuation of proceedings against the petitioner or not on a pretext that such issue is to be examined at the stage of trial. A plea of defence cannot be looked into by th ..... 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