1. Ajit Jhunjhunwala @ Atul Jhunjhunwala, aged about 53 years, son of Shri Sushil v. 1. The State of Jharkhand 2. Factories Inspector, Deoghar Circle, having its office at
Case Details
1 W.P. (Cr.) No.664 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No. 664 of 2023 1. Ajit Jhunjhunwala @ Atul Jhunjhunwala, aged about 53 years, son of Shri Sushil Jhunjhunwala, resident of 17, B/2, Alipore Road, P.O. and P.S. –Alipore, District –Kolkata -700027 (West Bengal) 2. Prabhash Kumar, aged about 56 years, son of Shri Rohin Prasad, resident of Mahupur, P.O. & P.S. –Madhupur, District –Deoghar, PIN -815313 (Jharkhand). .... Petitioners Versus 1. The State of Jharkhand 2. Factories Inspector, Deoghar Circle, having its office at Deoghar, P.O. and P.S. –Deoghar, District –Deoghar (Jharkhand). …. Respondents P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For Resp. Nos. 1 & 2 : Mr. Sumeet Gadodia, Advocate : Mr. Manoj Kumar –G.A. -III ….. By the Court:- 1. 2. 3. Heard the parties. The learned G.A.-III prays for time to file a counter affidavit. Perusal of the record reveals that vide order dated 10.10.2023, the respondent-State was ordered to take instruction and file counter-affidavit within four weeks but though more than four weeks has elapsed, the State has neither filed the counter-affidavit nor prayed for extension of time to file the counter-affidavit and when the case is listed today, a prayer is made by the G.A.-III without assigning any reason, as to why counter-affidavit could not be filed within time. It is needless to mention, that such type 4. 5. 2 W.P. (Cr.) No.664 of 2023 of conduct is very much prevalent amongst the law Officers appearing for the State of Jharkhand in this court. Keeping in view the facts of the case and as no disputed fact is involved in this writ petition, this Court is not inclined to allow the prayer for time made by the respondent to file counter affidavit. This writ petition has been filed under Article 226 of the Constitution of India with a prayer to issue writ/order/direction to quash the entire criminal prosecution including the order taking cognizance dated 04.07.2023, passed by the learned Additional Chief Judicial Magistrate, Madhupur in Complaint Case being G.O.C.R. Case No. 24 of 2023 whereby and where under the learned Additional Chief Judicial Magistrate has taken cognizance of the offences punishable under Section 96(a) and 92 of the Factories Act, 1948 but it is apparent that the learned Magistrate in a casual manner has mentioned Section 96(a) instead of mentioning Section 96A of the Factories Act. 6. The allegation against the petitioners is that the petitioner no.1 is the occupier and the petitioner no.2 is the Factory Manager of M/s La Opala RG Ltd.; which comes under the hazardous factory. During the inspection made by the complainant -Factory Inspector, Deoghar Circle on 06.04.2023; he found several shortcomings and drew up a Minutes and sent the same inter-alia to the petitioners apparently in terms of Section 40(1) of the Factories Act, 1948 which reads as under:- 40. Safety of buildings and machinery.—(1) If it appears to the Inspector that any building or part of a building or any 3 W.P. (Cr.) No.664 of 2023 part of the ways, machinery or plant in a factory is in such a condition that it is dangerous to human life or safety, he may serve on the occupier or manager or both of the factory an order in writing specifying the measures which in his opinion should be adopted, and requiring them to be carried out before a specified date. (Emphasis supplied) Without mentioning any specified date before which the measures, if any, to be adopted by the factory and without mentioning the specified measures which the measures which in the opinion of the complainant-Factory Inspector should be adopted by the petitioners to set right the conditions that were dangerous to human life or safety and which measures should be required to be carried out before the date to be satisfied. 7. It is submitted by the learned counsel for the petitioner that undisputedly the alleged notice, the copy of which has been kept at annexure-3, do not specify any date within which the measures which were in the opinion of the complainant-Factory Inspector should have been adopted by the petitioners and in the absence of that, there is no valid compliance of the notice under Section 40(1) of the Factories Act, 1948 and in the absence of a valid notice the complaint in question is bad in law. It is further submitted that, the initiation of the complaint in a hasty manner which is evident from the fact that within 30 days from the date of such notice on 13.05.2023, the complainant-Factory Inspector requested for sanction of prosecution as is apparent from the sanction of prosecution, the copy of which has been kept at page nos. 41-42 of the brief; shows the malafide. Hence, it is submitted that the cognizance order, in the absence of a valid notice under Section 4 W.P. (Cr.) No.664 of 2023 40(1) of the Factories Act, 1948, is not sustainable in law, hence the same be quashed by issuing the writ of certiorari. 8. The learned G.A.-III fairly submits that in the complaint except the notice dated 17.04.2023, the copy of which is annexure-3, there is no reference of any notice being issued by the complainant- Factory Inspector to the petitioners. It is next submitted by the learned G.A.-III that even though no date for carrying out the measures to be adopted by the petitioners has been mentioned in the notice, still the same is in compliance of Section 40 of the Factories Act, 1948. Hence, it is submitted that this writ petition being without any merit be dismissed. 9. Having heard the submissions made at the Bar and after carefully going through the materials in the record, this Court has no hesitation in holding that Section 40(1) of the Factories Act, 1948 envisages that for a valid notice in terms of Section 40(1) Factories Act, 1948, it is incumbent upon the Inspector to firstly to specify the measures which in his opinion of the Inspector should be adopted by the factory to rectify the condition that in the opinion of the Inspector is dangerous to human life or safety and secondly to specify a date before which the measures, which in the opinion of the Inspector, should be adopted by the Occupier or the Factory Manager or both to be carried out; to rectify the condition; that in the opinion of the Inspector is dangerous to human life or safety. 10. Now coming to the facts of the case; after carefully going through the materials in the record, this Court has no hesitation in holding that in the notice dated 17.04.2023, the copy of which is the annexure-3 of this writ petition, no date has been specified 5 W.P. (Cr.) No.664 of 2023 before which the measures suggested by the Inspector was to be carried out by the petitioners. In the absence of that, this Court is of the considered view that there is no valid notice in terms of Section 40(1) of the Factories Act, 1948 , has been issued by the Inspector before filing the complaint in the court and in the absence of a valid notice, the order of cognizance dated 04.07.2023, passed by the learned Additional Chief Judicial Magistrate, Madhupur in Complaint Case No. G.O.C.R. Case No. 24 of 2023 is not sustainable in law. 11. In view of the discussions made above; issue a writ of certiorari quashing the order of cognizance dated 04.07.2023, passed by the learned Additional Chief Judicial Magistrate, Madhupur in Complaint Case No. G.O.C.R. Case No. 24 of 2023. 12.
Decision
In the result, this writ petition is allowed to the aforesaid extent only. 13. Order accordingly. High Court of Jharkhand, Ranchi Dated the 1st December, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)