Manoharan & Ors. v. State of Tamil Nadu

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 28.09.2011CORAMTHE HONOURABLE MS.JUSTICE R.MALACrl.O.P.(MD).No.8012 of 2011andM.P.(MD) No.1 and 2 of 20111.Manoharan2.C.Vijayakumar3.P.Anbalagan4.K.Anbalagan:Petitioners-Vs-State of Tamil Nadu,represented byThe Inspector of Police,Ponmalai Police Station,Tiruchirappallicrime No.365 of 2009: RespondentPRAYER: Petition is filed under Section 482 of the Code of CriminalProcedure praying to call for the records relating to the criminalcase C.C.No.63 of 2010 on the file of the Judicial Magistrate No.V,Tiruchirappalli and quash the proceedings.For Petitioner : Mr.K.JayaramanFor Respondent : Mr.A.Ramar, Addl. Public ProsecutorO R D E RThis petition is filed to call for the records relating to thecriminal case C.C.No.63 of 2010 on the file of the JudicialMagistrate No.V, Tiruchirappalli and quash the proceedings.2.The learned counsel appearing for the petitioner/A1 wouldsubmit that the petitioner is working as Deputy General Manager inTrichy Distilleries and Chemicals Limited, and other petitioners areworking as Plant Manager, Senior Engineer and Deputy Managerrespectively. He would further submit that on 09.07.2009, at about13.00 hours, when maintenance work was carried on in the rectifyspirit tank, an accident took place, while cutting truss iron angleby using gas cylinder, as a result of which, there was a fire whichblasted the tank cover and three contract workers viz., John Kennady,Saravanan and Rejesh Succumbed to injuries and three others viz.,Mohammed Saleed, Ayyappan and Senthil sustained grievous injuries.3.He would further submit that immediately, the accident wasinformed to the Inspector of Factories and thereafter, Form 18 was https://hcservices.ecourts.gov.in/hcservices/ 2complied with and the Deputy Chief Inspector of Factories rushed tothe spot on the same day and having found violation of the FactoriesAct and after following the procedures, he filed the complaint beforethe learned Chief Judicial Magistrate, Tiruchirappalli, which wastaken cognizance in S.T.C.Nos.12/2009, 13/2009, 14/2009 and 15/2009respectively. He would further submit that in the above said cases,after enquiry, the occupier of the Factories and the Manager/thepetitioner herein were convicted and sentenced to pay fine amountthat the same was paid by them. He would further submit that with anulterior motive, the defacto complainant set the law in motion incrime No.365 of 2009 before the respondent police in crime No.365 of2009 for the offence under Sections 338 and 304(A) I.P.C. and afterinvestigation, charge sheet has been filed in C.C.No.63 of 2010against four persons and hence, he would submit that there may notbe two proceedings for the same occurrence and hence, he prayed forthe quashment of the proceedings against the petitioners. Tosubstantiate his argument, he relied on the decision of the JharkhandHigh Court in Ashwini Kumar Singh and another Vs. 2007 LLR 866.4.Repudiating the same, the learned Government Advocate(criminal side) would file a counter stating that the case has beenregistered on the basis of the complaint given by one Govindaraj incrime No.365 of 2009 for the offence under Sections 338 and 304(A)I.P.C. and after investigation, charge sheet has been filed, whichwas taken on file in C.C.No.63 of 2010. He would further submit thatthe Inspector of Factories has also lodged a complaint as against thepetitioners for violation of Factories Rules under the Factories Actand this case is no way connected with S.T.C.Nos.12 to 15 of 2009,which have already been ended in conviction and hence, he prayed forthe dismissal of the application. 5.I have considered the submissions made on either side andperused the materials available on record.6.The admitted facts are that these petitioners are arrayed asaccused in C.C.No.63 of 2010, which is pending on the file of theJudicial Magistrate No.V, Trichy. The 1st petitioner is working asDeputy General Manager and the others are working as Plant Manager,Senior Engineer and Deputy Manager respectively in TrichyDistilleries and Chemical Limited. On 09.07.2009, at about 13.00hours, when the maintenance work was carried on in the rectify spirittank, an accident took place and due to the said accident, threecontract workers viz., John Kennady, Saravanan and Rejesh Succumbedto injuries and three others viz., Mohammed Saleem, Ayyappan andSenthil sustained grievous injuries. It is true, the said accidencewas informed to the Inspector of Factories and the Deputy ChiefInspector of Factories, initiated proceedings under the Factories Actbefore the learned Chief Judicial Magistrate, Trichy and the same wastaken on file in S.T.C.Nos.12 to 15 of 2009 against the occupier ofthe Factories viz., one M.Narasimha Rao and the Manager, who is the https://hcservices.ecourts.gov.in/hcservices/ 31st petitioner herein. After trial, the Chief Judicial Magistrate,Dindigul found them guilty and they have paid the fine amount. 7.Now, on the basis of the complaint given by one Govindaraj, onthe same day, a case in crime No.365 of 2009 has been registered forthe offence under Section 338 and 304(A) I.P.C by the respondentpolice and after the completion of investigation, charge sheet hasbeen filed against the petitioners and the same has been takencognizance in C.C.No.6e of 2010 and pending before the learnedJudicial magistrate No.V, Trichy. 8.The point now raised by the petitioner is that the occurrencehas been taken place within the factory premises and on information,enquiry has been conducted and the Deputy Chief Inspector has filed acomplaint against the occupier and the Manager of the Factories underthe Factories Act. Since the complaint under the Factories Act havebeen disposed of, the proceeding under the Indian Penal Code, whichis a general provision of law is not sustainable.9.At this juncture, it is appropriate to consider the decisionin Ashwini Kumar Singh and another Vs.State of Jharkhand reported in2007 LLR 866, wherein, in paragraph No.7, it has been held as follows:“Para 7. The law is settled in the variousdecisions that the special law shall prevail over thegeneral law but both shall not run concurrently forthe same cause of action. I find that when thecomplaint case has been instituted vide C/2 No.5211/05 under Special law (Factories Act, 1948), thecontinuation of the criminal prosecution against thepetitioners for the offence prescribed in the generallaw of Indian Penal Code is unsustainable. In boththe statutes viz., under section 304 A, Indian PenalCode (general law) and under section 92 of theFactories Act, 1948 the sentence prescribed to theconvict is similar but with additional fine to theextent of Rs.One lakh in the Special Act to theoccupier and in this manner the extent of fine is moresevere in special law and both cannot proceed at atime. The criminal prosecution of the petitioners,therefore, under Indian Penal code is unsustainable.10.Considering the above said decision, two proceedings will notbe sustainable for the same cause of action/same incident. In thepresent case, since S.T.C.Nos.12 to 15 of 2009 filed under theFactories Act have been disposed of and the 1st petitioner herein andone Narasimha Rao were convicted and they paid the find amount, thecontinuation of the criminal proceedings against the petitioners forthe offence prescribed in the general law of Indian Penal Code isunsustainable. https://hcservices.ecourts.gov.in/hcservices/

411.Therefore, considering the above said decision alongwith the facts of the present case, I am of the view that it is a fitcase to quash the proceedings against the petitioners.12.Accordingly, this criminal original petition is allowedand the proceedings in C.C.No.63 of 2010 on the file of the JudicialMagistrate No.V, Trichy, against the petitioners is hereby quashed.Consequently, connected miscellaneous petitions are closed.Sd/- Assistant Registrar(A.S.)/True Copy/`Sub Assistant RegistrarTo1. The Judicial Magistrate No.V, Trichirappalli2.The Inspector of Police, Ponmalai Police Station, Tiruchirappalli.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.order made inCrl.O.P.(MD).No.8012 of 2011and MP(MD)Nos. 1 and 2 of 201128.09.2011arulSMA/18.10.2011/4C/4P