Vijai Singh @ Vijay Singh, aged about 55 years, son of Late Babu Ram v. 1. The State of Jharkhand 2. Ranvijay Tigga, son of not known to the
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2820 of 2018 Vijai Singh @ Vijay Singh, aged about 55 years, son of Late Babu Ram, resident of Telangana Super Thermal Power Project, Jyoti Nagar, P.O. and P.S.- Peddapalli, Telangana- 505215 ...... Petitioner Versus 1. The State of Jharkhand 2. Ranvijay Tigga, son of not known to the petitioner, Factory Inspector, Hazaribag Circle- II, Hazaribag ….. Opposite Parties For the Petitioner : For the State :
Legal Reasoning
Mr. Prashant Pallav, Adv. Ms. Shivani Jaluka, Adv. Mr. Abhay Kr. Tiwari, Addl. PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the order dated 02.02.2018 passed by the learned Chief Judicial Magistrate, Chatra in Complaint Case No. 141 of 2018 whereby and where under the learned Magistrate has taken cognizance of the offence punishable under Sections 92 of the Factories Act, 1948 inter alia against the petitioner, who is the General Manager (Project) of North Karanpura Super Thermal Power Plant, Chatra. 3. The brief facts of the case is that the allegation against the petitioner is that the petitioner being the General Manager (Project) of North Karanpura Super Thermal Power Plant, Chatra along with the co-accused persons was responsible for the occurrence which took place on 07.11.2017 at about 07:50 P.M. in which one worker namely Sri Krishna Kumar Mehta died while guiding the Hydra Vehicle by walking ahead of it and as a dumper came from the other side and because of the flashing of 1 Cr.M.P. No. 2820 of 2018 light of the dumper, half of the headlight of which was not painted black, the driver of the Hydra Vehicle could not notice the position of Sri Krishna Kumar Mehta ahead of him as there was stacking of Duct pieces and other materials on both sides, so Krishna Kumar Mehta could not move away and came under the wheel of the Hydra Vehicle causing him serious injury, ultimately resulting in his death. It has also been mentioned at running page no.17 of the brief which is part of the complaint under the heading ‘The detailed description of the prosecution site’ that North Karanpura Super Thermal Power Project was a under construction unit of the N.T.P.C. 4. It is submitted by the learned counsel for the petitioner by drawing attention of this Court to the definition of ‘Factory’ under Section 2(m) of the Factories Act, 1948 which reads as under:- “Section 2(m) of Factories Act 1948 (m) “factory” means any premises including the precincts thereof— (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,— but does not include a mine subject to the operation of [the Mines Act, 1952 (35 of 1952)], or [a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place]; [Explanation [I].—For computing the number of workers for the purposes of this clause all the workers in different groups and relays] in a day shall be taken into account;] [Explanation II.—For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof;].” (Emphasis supplied) It is submitted by the learned counsel appearing for the petitioner that for an organization to come under the ambit of factory carrying on of manufacturing process is a sine qua non. 2 Cr.M.P. No. 2820 of 2018 5. Relying upon the judgment of this Court in Cr. M.P. No. 939 of 2023 dated 15th May, 2023 wherein this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Lanco Anpara Power Limited vs. State of Uttar Predesh & Ors. reported in (2016) 10 SCC 329, paragraph no.38 of which reads as under:- “38. It is not in dispute that construction of the projects of the appellants is covered by the definition of “building or other construction work” as it satisfies first two elements of the definition pointed out above. In order to see whether exclusion clause applies, we need to interpret the words “but does not include any building or other construction work to which the provisions of the Factories Act … apply” (emphasis supplied). The question is as to whether the provisions of the Factories Act apply to the construction of building/project of the appellants. We are of the firm opinion that they do not apply. The provisions of the Factories Act would “apply” only when the manufacturing process starts for which the building/project is being constructed and not to the activity of construction of the project. That is how the exclusion clause is to be interpreted and that would be the plain meaning of the said clause. This meaning to the exclusion clause ascribed by us is in tune with the approach adopted by this Court in Organo Chemical Industries v. Union of India [Organo Chemical Industries v. Union of India, (1979) 4 SCC 573 : 1980 SCC (L&S) 92] . Two separate, but concurring, opinions were given by Justice V.R. Krishna Iyer and Justice A.P. Sen, and we reproduce here below some excerpts from both opinions:” (emphasis supplied) It is submitted by the learned counsel appearing for the petitioner that the under construction building/project of a unit cannot be termed as factory. 6. It is next submitted by the learned counsel for the petitioner that as admittedly, no manufacturing process was carried on in the premises of North Karanpura Super Thermal Power Plant, Chatra as mentioned in the complaint itself by the complainant on the date of occurrence hence, the penal provision under Section 92 of the Factories Act, 1948 is not applicable and the learned Magistrate ignoring the same has taken cognizance of the offence punishable under Section 92 of the Factories Act. Hence, it is 3 Cr.M.P. No. 2820 of 2018 submitted that the order dated 02.02.2018 passed by the learned Chief Judicial Magistrate, Chatra in Complaint Case No. 141 of 2018 be quashed and set aside. 7. Learned Addl. P.P. on the other hand opposes the prayer for quashing the order dated 02.02.2018 passed by the learned Chief Judicial Magistrate, Chatra in Complaint Case No. 141 of 2018 and submits that the learned Magistrate has rightly taken cognizance against the petitioner. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 8. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention that, since it is an admitted case of the complainant-opposite party no.2, as mentioned in the complaint itself, that the North Karanpura Super Thermal Power Plant, Chatra was a under construction unit which clearly indicates that on the date of occurrence no manufacturing process or production of any kind was being done in the said under construction unit; so, in the absence of any material in the record regarding any manufacturing process being carried out in the premises of North Karanpura Super Thermal Power Plant, Chatra which was an unit of N.T.P.C. but on the other hand, it is the admitted case of the complainant to the contrary, as already indicated above that the same was an under construction unit, hence, this Court has no hesitation in holding that North Karanpura Super Thermal Power Plant, Chatra cannot be considered to be factory; as defined under Section 2 (m) of the Factories Act, 1948. 9. Thus this Court has no hesitation in holding that the order dated 02.02.2018 passed by the learned Chief Judicial Magistrate, Chatra in Complaint Case No. 141 of 2018 taking cognizance of the offence inter alia against the petitioner is not sustainable in law. Hence continuation of the same would amount to abuse of process of law. 10. Since the order dated 02.02.2018 passed by the learned Chief Judicial Magistrate, Chatra in Complaint Case No. 141 of 2018 is 4 Cr.M.P. No. 2820 of 2018 not sustainable in law, the same case is quashed and set aside qua the petitioner.
Decision
11. In the result, this criminal miscellaneous petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 16th August, 2024 Smita /AFR 5 Cr.M.P. No. 2820 of 2018