K.Murugasamy v. The Inspector of Factories,Villupuram, Villupuram District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.08.2010CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.No.320 of 2010K.Murugasamy .. Petitioner/AccusedVs.1.The Inspector of Factories,Villupuram, Villupuram District.2.B.Palaniappan, Manager,Chengalvarayan Co-op. Sugar Mills,Periyasevalai, Ulundurpet Taluk,Villupuram. .. Respondents/Complainant and First Respondent Prayer:-Revision Petition filed under Section 397 r/w. 401 ofCr.P.C., against the order dated 09.07.2007 passed in C.M.P.No.832of 2007 in C.C.No.1 of 2006 by the learned Chief JudicialMagistrate, Villupuram.For Petitioner : Mr.S.VadiveluFor R-1 : Mr.A.Saravanan, Govt. Advocate (Crl.Side)For R-2: No Appearance- - - - -ORDERThis revision has been filed by the petitioner challengingthe order passed by the learned Chief Judicial Magistrate,Villupuram in C.M.P.No.832 of 2007 adding the petitioner as anaccused under Section 319 of Cr.P.C. in C.C.No.1 of 2006.2.The Inspector of Factories, Villupuram, had filed acomplaint against the accused Palaniappan, who was the Manager ofthe Chengalvarayan Co-op. Sugar Mills, for an alleged offencepunishable under Section 92 of the Factories Act, 1948. There wasa fatal accident on 16.03.2005 in the sugar factory and a workerby name Ravi Rajan died. The Deputy Chief Inspector of Factories,had inspected the factory on 18.03.2005 and issued show causenotice to the accused Palaniappan and also to the petitionerherein. On receiving explanation, the Deputy Chief Inspector ofFactories, had accorded sanction to file a complaint against theaccused Palaniappan. Then, the Inspector of Factories, https://hcservices.ecourts.gov.in/hcservices/ Villupuram, had filed a complaint only against the accusedPalaniappan. In the trial Court on 27.11.2006, Mr.Sambandam, theDeputy Chief Inspector of Factories, was examined as P.W.1. On12.03.2007, again he was recalled and examined. On 21.03.2007, theAssistant Public Prosecutor, Villupuram, had filed a memo underSection 319 of Cr.P.C. for adding the petitioner herein as anaccused. On 09.07.2007, the learned Chief Judicial Magistrate,Villupuram, had passed an order allowing the application filed bythe prosecution and ordered to issue summons to the petitionerherein.3.Mr.S.Vadivelu, learned counsel appearing for therevision petitioner submitted that under Section 105(1) of theFactories Act (hereinafter referred to as the Act), sanction wasaccorded only to the accused Palaniappan, who was the Manager ofthe Factory and as such, without any sanction being accorded toprosecute the petitioner herein, the Court has got no competenceto include the revision petitioner herein as an accused underSection 319 of Cr.P.C. The learned counsel for the petitioneralso relied on a decision of the Hon'ble Supreme Court reported in2006 (2) L.W. (Crl.) 497 (Dilawar Singh Vs. Parvinder Singh @Iqbal Singh and another). The learned counsel for the petitionerfurther submitted that even as per the evidence of P.W.1, therevision petitioner cannot be included as an accused and theevidence of P.W.1 has not been completed, since P.W.1 has not beencross examined. The learned counsel further pointed out that bymerely filing a memo to implicate the petitioner herein as anaccused, the Court is not empowered to invoke the provision underSection 319 of Cr.P.C., and to include the petitioner as anaccused no specific reason is mentioned in the order allowing thememo filed by the prosecution. The learned counsel submitted thatthe power under Section 319 of Cr.P.C. should be exercised only inextraordinary situation.4.Per contra, the learned Government Advocate (Crl.Side)submitted that the complaint has been filed by the Inspector ofFactories and as such, no previous sanction is necessary for theCourt to take cognizance as per Section 105 of the Act and thesanction already obtained may be due to abundant caution. Thelearned Government Advocate further submitted that even if thesanction is to be obtained as per Section 105 of the Act, once thesanction is granted and the Court takes cognizance of the offenceunder the Act, no further sanction is necessary to include theothers as an accused, since cognizance of the offences had alreadybeen taken by the Court. It is also submitted that show causenotice was issued both (1) to the accused-Palaniappan, who was theManager of the Factory and (2) to the revision petitioner, who wasthe Administrator of the Factory. He being the Administrator ofthe Factory becomes the occupier of the Factory as per thedefinition of Section 2(n) of the Act. The learned Government https://hcservices.ecourts.gov.in/hcservices/ Advocate further submitted that even if the complainant is notincluding the revision petitioner as an accused while filing thecomplaint, it is always open to the prosecutor to approach theCourt to include any one as an accused, if the evidence isavailable against him.5.This Court has considered the submissions made by bothparties and also perused the materials available on record.6.Originally, the complaint was filed by the Inspector ofFactories, Villupuram, only against the accused B.Palaniappan, whowas the Manager of the Chengalvarayan Co-op. Sugar Mills, thoughshow cause notice was issued for both, the Manager of the Factoryas well as to the Administrator of the Factory, who is therevision petitioner herein. After examination of P.W.1, a memohas been filed by the prosecution to include the petitioner as anaccused. According to the prosecution, the revision petitionercomes under the category of occupier and for violation of FactoryRules, both the Manager and Occupier are liable. 7.Section 2(n) of the Factories Act reads as follows:-"(n) "occupier" of a factory means the person whohas ultimate control over the affairs of the factory [Provided that-(i) in the case of a firm or other association ofindividuals, any one of the individual partners ormembers thereof shall be deemed to be the occupier;(ii) in the case of a company, any one of thedirectors shall be deemed to be the occupier;(iii) in the case of a factory owned orcontrolled by the Central Government or any StateGovernment or any local authority, the person orpersons appointed to manage the affairs of the factoryby the Central Government, the State Government or thelocal authority, as the case may be, shall be deemedto be the occupier.]"As per proviso clause-iii, the petitioner herein, who was theAdministrator being appointed by the Government comes under thecategory of occupier.8.The next question that arises for consideration isthough the revision petitioner comes under the category ofoccupier, whether he could be added as an accused in the case byinvoking the provision of Section 319 Cr.P.C. in the absence ofsanction to prosecute?.9.Section 105 of the Factories Act reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "105. Cognizance of offences. (1) No Court shalltake cognizance of any offences under this Act excepton complaint by, or with the previous sanction inwriting of, an Inspector.(2) No Court below that of a PresidencyMagistrate or of a Magistrate of the first classshall try any offence punishable under this Act."10.A plain reading of Section 105(1) of the Act shows, ifan Inspector files the complaint, no previous sanction isnecessary wherein if the complaint is filed by any other person,previous sanction is necessary. Even if it is to be held thatprevious sanction is necessary for the Court to take cognizance ofany offence under the Act, as already sanction has been obtainedin this case, no further sanction is necessary while proceedingagainst another accused in the same case. 11.The decision cited by the learned counsel for therevision petitioner reported in 2006 (2) L.W. (Crl.) 497 (DilawarSingh Vs. Parvinder Singh @ Iqbal Singh and another) is notapplicable to the facts and circumstances of the case. It is acase wherein sanction was accorded to one accused under Section 19of the Prevention of Corruption Act while another person wasincluded as an accused under Section 319 of Cr.P.C. The Hon'bleSupreme Court held that the Court cannot summon another person andproceed against him in exercising the power under Section 319Cr.P.C., if no sanction is granted by the appropriate authorityfor prosecution of such a person, who was the Government servant.12.Section 19 of the Prevention of Corruption Act reads asfollows:-"19. Previous sanction necessary for prosecution.-(1) No Court shall take cognizance of an offencepunishable under Sections 7, 10, 11, 13 and 15 allegedto have been committed by a public servant, except withthe previous sanction,-(a) in the case of a person who is employed inconnection with the affairs of the Union and is notremovable from his office save by or with the sanctionof the Central Government, of that Government;(b) in the case of a person who is employed inconnection with the affairs of a State and is notremovable from his office save by or with sanction ofthe State Government, of that Government;(c) in the case of any other person, of the https://hcservices.ecourts.gov.in/hcservices/ authority competent to remove him from his office.(2) .....(3) .....(4) ....."13.Under Section 19 of the Prevention of Corruption Act,sanction has to be obtained to prosecute a public servant whereinunder the Factories Act, as per Section 105, previous sanction hasto be obtained for taking cognizance of the offences under theAct. As per Section 19 of the Prevention of Corruption Act, toprosecute against a public servant sanction is necessary fortaking cognizance of the offence as well as to proceed against theperson. Only in the said circumstance, the Hon'ble Supreme Courthas held that existence of a sanction is sine qua non for takingcognizance of the offence qua that person. Therefore, underFactories Act to proceed against the revision petitioner as perSection 319 of Cr.P.C., no sanction is necessary. 14.It was pointed out by the learned counsel for thepetitioner that the learned Magistrate, while passing an orderallowing the memo filed by the prosecution under Section 319Cr.P.C., has not given reasons. Of course, it is always incumbenton the part of the Court to give reasons either for allowing ordismissing the applications. The order must be a speaking order.Instead of remanding this matter back to the learned Magistrate toreconsider the issue, this Court had now gone into details andheld that the petitioner is occupier of the Factory and he may beincluded as an accused.15.It was pointed out that the evidence of P.W.1 has notbeen completed. But P.W.1 was examined in chief examination parton 27.11.2006 and the chief examination continued on 12.03.2007and it has been completed. After completion of the chiefexamination, P.W.1 was not cross examined. The cross-examinationwas not deferred by the Court for want of time or for any otherreason. Of course, when a case is tried under summons caseprocedure or summary trial procedure, there is no provision todefer the cross-examination of the witnesses, but it is availablein the warrant case procedure and sessions case procedure.Therefore, as P.W.1 was not cross examined by the accused it hasto be taken as that the evidence of P.W.1 has been completed. Ofcourse, it is always open to the trial Court to allow anyapplication if filed under Section 311 of Cr.P.C. to cross examinethe witness at any stage. https://hcservices.ecourts.gov.in/hcservices/

16.For the above said reasons, this Criminal RevisionPetition is dismissed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjrlTo1.The Chief Judicial Magistrate, Villupuram.2.The Inspector of Factories,Villupuram, Villupuram District.3.The Public Prosecutor,High Court, Madras.+1cc to M/s.S.Vadivelu, Advocate Sr 61232KAK(CO)km/24.8. Crl.R.C.No.320 of 2010