(BY SRI PRASHANTH B. K., ADVOCATE) v. SECTION 8(1) OF THE FACTORIES ACT

STATE OF KARNATAKA AT THE INSTANCE OF SRI THIMMARAJU V. SENIOR ASSISTANT DIRECTOR OF FACTORIES DIVISION-9, BENGALURU (AN INSPECTOR APPOINTED UNDER SECTION 8(1) OF THE FACTORIES ACT, 1948) (BY SMT. N. ANITHA GIRISH, H.C.G.P.) ...RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.26220/2019 FILED UNDER SECTION 200 OF THE CRIMINAL PROCEDURE CODE READ WITH THE FACTORIES ACT, 1948 AND KARNATAKA FACTORIES RULES, 1969 AND ALL FURTHER PROCEEDINGS PURSUANT THERETO WHICH ARE PRODUCED AT DOCUMENT 31ST ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, NO.1 FILE THE ON OF THE - 4 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR BENGALURU. IN CRL.P NO.7473/2023: BETWEEN:

1. MR. VARUN BERRY S/O. ARI BERRY AGED ABOUT 53 YEARS OCCUPIER MS. BRITANNIA INDUSTRIES LIMITED PLOT NO.23, BALAVERANNAHALLI BIDADI INDUSTRIAL AREA, BIDADI HOBLI RAMANAGARA DISTRICT-562 109

2. MR. UMESH K. NAMDEO S/O. K. P. NAMADEO AGED ABOUT 60 YEARS MANAGER M/S. BRITANNIA INDUSTRIES LIMITED PLOT NO.23, BALAVERANNAHALLI BIDADI INDUSTRIAL AREA, BIDADI HOBLI RAMANAGARA DISTRICT-562 109. ...PETITIONERS (BY SRI PRASHANTH B. K., ADVOCATE) AND: STATE OF KARNATAKA AT THE INSTANCE OF SRI S. R. SRIDHARA DEPUTY DIRECTOR OF FACTORIES DIVISION-4, 2ND FLOOR, KARMIKA BHAVANA BANNERUGHATTA ROAD BENGALURU-560 029 (AN INSPECTOR APPOINTED UNDER THE SECTION 8(1), OF THE FACTORIES ACT 1948) ...RESPONDENT (BY SMT. N. ANITHA GIRISH, H.C.G.P.) - 5 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1074/2017 FILED BY THE RESPONDENT UNDER SECTION 200 OF CR.P.C. READ WITH FACTORIES ACT, 1948 AND KARNATAKA FACTORIES RULES, 1969 AND ALL FURTHER PROCEEDINGS PURSUANT THERETO WHICH ARE PRODUCED AT DOCUMENT NO.1 ON THE FILE OF LEARNED PRINCIPAL CIVIL JUDGE AND J.M.F.C., RAMANAGARA. THESE CRIMINAL PETITIONS ARE COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE J.M.KHAZI ORAL ORDER In these petitions filed under Section 482 Cr.P.C, the accused have sought quashing of the criminal proceedings initiated against them.

2. In Crl.P.No.194/2022, petitioners are arraigned as accused Nos. 1 and 2 in C.C.No.26220/2019 on the file of XXXI Additional Chief Metropolitan Magistrate Bengaluru, for the offence punishable under Section 92 of Factories Act

1948. - 6 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR

3. In Crl.P.No.5832/2023, petitioners are arraigned as accused Nos. 1 and 2 in C.C.No.8546/2022 on the file of Civil Judge and JMFC, Devanahhali, for the offences punishable under Section 92 of Factories Act 1948.

4. Similarly, in Crl.P.No.7473/2023, petitioners are arraigned as accused Nos. 1 and 2 in C.C.No.1074/2017 on the file of Principal Civil Judge and JMFC, Ramanagara, for the offences punishable under Section 92 of Factories Act

5. Though parties to these petitions are not common and they are arising out of different incidences, on the ground that common question is involved, they are ordered to be clubbed together.

6. In support of the petitions, the petitioners have contended that the reply to the show cause notice was not considered by the respondent and as such the very purpose of giving show cause notice is not fulfilled. Therefore, the criminal proceedings are not sustainable. Had respondent - 7 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR has passed orders on the explanation given to the show cause notice, the aggrieved person would have opportunity to prefer appeal under Section 107 of the Factories Act. Therefore, the petitioners have lost their right to appeal. Their reply clearly indicates that petitioners have not violated provisions of 29(1)(a)(iii) of the Factories Act and Rule 84 of the Karnataka State Factories Act and therefore proceedings are not sustainable and hence the petition.

7. In support of his arguments, learned counsel for petitioners has relied upon the following decisions: (i) L.Ganesh VS. State of Tamil Nadu (L.Ganesh)1 (ii) Mr.Mahendra Karle and Anr. Vs. The Assistant Director of Factories (Mahendra Karle)2 (iii) Dayle De'souza Vs. Government of India through Deputy Chief Labour Commissioner (C) and Ors. (Dayle De'souza)3 (iv) ORYX Fisheries Pvt.Ltd Vs. Union of India (UOI) and Ors.(ORYX Fisheries)4 (v) Sathish Hebber.R amd Anr Vs. State (Sathish Hebber)5 1 Cr.OP.Nos.27835 and 27838/2014 Dt:19.08.2019 2 W.P.Nos.52870-52871/2015 c/w W.P.Nos.52868-52869/2015 Dt:15.09.2018 3 Crl.A.No.1319/2021 [SLP(Crl)No.3913/2020 Dt:29.10.2021 4 Civil Appeal No.9489/2010 [SLP (C) No.27615/2008 Dt:29.10.2010 5 Crl.OP.No.17189/2021 and Crl.M.P.Nos.9419 and 9420/2021 Dt:23.06.2023 - 8 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR

8. In Crl.P.No.194/2022, it is submitted by the learned High Court Government Pleader petitioners/accused Nos.1 and 2 are the Director/occupier and Factory Manager of M/s Fouress Engineering (India) Pvt. Ltd, which come under the definition of Factory, manufacturing of Industrial Valves. It has employed 383 workers and manufacturing activities are carried out with the aid of electrical power.

8.1 On 06.07.2019, at 2.15 p.m, Sri.H.K.Manohar Singh, operator attended the factory in the second shift. On that day, component called 900 TPSC body was loaded on the boring machine and being machined in the first shift. Sri.H.K.Manohar Singh continued the machining of 900 TPSC body. On that day at about 5.00 p.m, first operation machining of 900 TPSC body was completed. After completion of the first operation machining of 900 TPSC body, Sri.H.K.Manohar Singh removed 900 TPSC body from the boring machine. He inserted a pipe into the core bores of 900 TPSC body and tied a 5 ton capacity belt around the - 9 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR 2 ends of the pipe to the hook of the 10 ton EOT crane and lifted the 900 TPSC body with the help of 10 ton EOT and kept aside. Further he machined shafts of other valve. After completion of machining of the shafts, he started re- loading the 900 TPSC body for second operation. He inserted 2 studs into the core bores of 900 TPSC body and tied 1 ton capacity belt around the studs and to the hook of the 10 ton EOT crane and lifted the 900 TPSC body with the help of 10 ton EOT crane. At 8.30 p.m. At 8.30 p.m., the belt tied around the studs and to the hooks of 10 ton EOT crane tore out and 900 TPSC body fell on his right leg, while reversing the said body. Immediately, he removed his shoe and found his big toe of right leg crushed. He was shifted to M/s Sparsh Super Speciality Hospital, Yeshwanthpur, Bengaluru and operated upon and the toe was amputed. He was in-patient till 18.08.2019 and attended the factory from 19.08.2019.

8.2 The accident occurred due to sharp edges of the studs piercing into the belt as a result of which the belt - 10 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR tore and body fell down on the ground. Had the operator was not allowed to lift the 900 TPSC body by inserting 2 studs into the core bores of 900 TPSC body and tying 1 ton capacity belt around the studs and to the hook of 10 ton EOT crane, this accident could have been avoided. Carrying out the process of lifting of 900 TPSC body in such a manner as to cause risk of bodily injury, Rule 84 of the Karnataka Factory Rules, is contrary. Secondly, the 10 ton EOT crane and 1 ton capacity belt are found not examined by the competent person, recognized by the Chief Inspector of Factories in Karnataka once in a period of 12 months and thereby Section (1)(a) (3) of Factories Act, 1948 is contravened.

9. In Crl.P.No.5832/2023, learned High Court Government Pleader submitted that accused Nos.1 and 2 are the occupier and manager of M/s Magellan Aerospace (Bangalore) Pvt. Ltd, which is a registered factory. It is situated at Plot No.69 to 81, Aerospace SEZ Sector, High tech defence and Aerospace park, Devanahalli, Bengaluru, - 11 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR coming under the jurisdiction of the complainant. On

09.03.2022, complainant received a notice of accident or dangerous occurrence in Form No.17 at the premises of the factory on 05.03.2022 at 11.30 a.m. On enquiry it was found that on 05.03.2022, at 8.20 a.m, 4 contract workers Murgesha, Sai Kumar, Santhosh and Mani attended to work in general shift laying lan fibre cable in the shop floor (near raw material store next to MAG-1 machine) inside the premises of the factory, as per the instructions from Karthik.S, IT Assistant. At 11.30 a.m, while carrying out the above said work at a height of 20 ft from the ground level using the man lifter, Murgesha and Sai Kumar fell down. After giving first aid, they were shifted to Vinayaka Hospital, Mylanahalli. Murgesha sustained hairline fracture, dislocation and shifted to Valens Hospital, Yelhanka. After discharge he took Ayurvedic treatment. The enquiry by the complainant reveal the following causes and contravention: • It is found that the management allowed workers to carry out the work of laying LAN fibre cable in the shop floor(near raw material store next to - 12 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR MAG-1 machine) at an height around 20 feet from ground level without proper supervision by a responsible person ensure all safety precautions to be taken care before carrying the works at height. • General Service work permit issued by the management instead of issuing the permit to work at Height by an authorized person. • Precautionary measures found not taken before injured workers using man lifter to carry out work at height. • The injured workers were not properly trained/made aware about the safety precautions to be followed while operating man lifter to reach height around 20 feet, who's operations are complex in nature. Instead authorized persons should have operated the man lifter. • Lack of supervision Had there was a strict supervision from competent person, injured workers who were not aware of the safe operations of the man lifter, would not have ventured to use the same as explained above & this accident would have been averted.

10. In Crl.P.No.7473/2023, learned High Court Government Pleader submitted that M/s Britania Industries Ltd, located at Plot No.23, Balaveeranahalli, Bidadi - 13 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR Industrial Area, Ramanagar is a registered factory. Accused Nos.1 and 2 are the occupier and manager respectively. On

30.01.2017, complainant received notice of accident and dangerous occurrence in Form No.17. During the enquiry complainant found that on 28.01.2017, at 9.25 a.m, B.Manjunatha, Trainee operator was working at the mixing Section of the factory. While cleaning the rubber rollers of the Good-day biscuit moulding machine, he sustained bleeding injuries. Immediately, after first aid, he was shifted to M/s Subhash Hospital, Bidadi and from there to BGS Hospital, Kengeri. During the enquiry and investigation, the complainant found that at the time of accident, since the shape of the moulded dough coming out of moulding unit was not according to the desired shape, to correct the same, B.Manjunatha, Trainee and operator started spraying water on moulded roller and rubber roller and cleaning the endless web with the help of his bare hand. While so doing, his left hand struck in between Nip of the moulding roller and rubber roller. Hearing the cries, - 14 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR Sri.K.N.Sharath Kumar, rushed to the spot and pressed the emergency stop button. The gap between rubber roller and moulding roller was increased to release the hand of the injured, B.Manjunath had suffered crush injury. The following are the reasons for the accident and hence the complaint: • As per the instructions Sri B. Manjunath resumed the work at around 6.15am on 28.1.2017. Initially he was engaged in the operation of the Biscuit moulding unit at around 9.25am. The shape of the moulded dough coming out of the Moulding unit was not according to the desired shape, hence to correct the same and clear the web Sri B. Manjuanth, trainee operator started spraying the water on the Moulding roller & Rubber roller & cleaning the endless web with the help of his bare left hand, while doing so his left hand struck in between the Nip of Moulding roller & the rubber roller. • The gap between the Moulding roller & Rubber roller of the Biscuit moulding unit forms the NIP & constitutes Dangerous part of the machinery. The Moulding Roller & rubber rollers ought to have been fitted with secure safety guard to prevent the possibility of worker hand or hands reaching the dangerous part of the machinery, the injured left - 15 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR hand crushed in between the Moulding roller & Rubber rollers & resulted in serious accident to the index finger, middle finger, ring finger & little finger mangled at the level of the shaft/base of proximal phalanx. • The gap between the Moulding roller & Rubber roller of the Biscuit moulding unit forms abalhe NIP & constitutes Dangerous part of the machinery. The Moulding Roller & rubber Priller ought to have been fitted with secure safety guard with limit switch, so that the Biscuit moulding unit should not actuate, when the limit switch provided to the guand is disturbed or removed. Safety device of such a mechanism prevents the possibility of worker hand or hands reaching the dangerous part of the machinery, there by possibility of accident could have been avoided / prevented. • The injured worker Sri B. Manjunath, trainee operator was allowed / required to carry out the cleaning all along the face of the of the Moulding roller & Rubber roller by spraying water & cleaning the same with his bare left hand & keeping the Biscuit moulding unit in the running condition, while doing so his left hand struck in between the Nip of moving Moulding roller & the rubber roller resulted in serious accident. • The injured worker Sri B. Manjunath, trainee operator was not trained / educated with regard to the Do's & Don'ts to be fallowed, while carrying out - 16 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR the cleaning of the Moulding roller & rubber roller of the biscuit Moulding unit installed in the mixing section of the Factory. • Hence the lack of supervision has also attributed for the cause of the above said serious accident on the unfortunate day.

11. Accordingly, after completing the investigation, complaints are filed. A full fledged trial is required to prove the allegations against the petitioners and pray to dismiss the petition.

12. Heard arguments and perused the record.

13. Learned counsel for accused relying upon Section 107 of the Factories Act submitted that since the complainant has failed to pass orders on the explanation submitted by the accused, they have lost opportunity of challenging the same in appeal and therefore, the proceedings are vitiated.

14. Chapter X of Factories Act deals with penalties and procedure. Section 92 of the Factories Act prescribes general penalty for the offences. On proof of the offence - 17 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR committed by the accused, they are liable for punishment as per this Section, which is punishing clause. It does not require the Inspector to pass any order and therefore it is not appealable under Section 107. Only Sections 15(3), 38(1), 39 and 40(2) of Factories Act require the Inspector to pass necessary orders in writing, specifying the measures which in his opinion should be adopted, and requiring them to be carried out before specified date.

15. Section 15 deals with artificial humidification i.e., the humidity of the air inside the factories required to be increased.

16. Section 38(1) deals with precautions in case of fire and require that in every factory, all practicable measures shall be taken to prevent out break of fire and its spread, both internally and externally, etc.

17. Section 39 is the power exercised by the Inspector to require specification of defective parts or test of stability. It states that if the Inspector is of the opinion - 18 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life or safety, he may serve on the occupier or Manager or both of the factory an in writing requiring him to furnish drawings, specifications, etc. to determine whether they can be used with safety. He may also direct to carry out such tests to…… inform Inspector of the result thereof. Similarly, Section 40 deals with safety of buildings and machinery. If the Inspector is of the opinion that the building…….. 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 an order in writing specifying the measures which are required to be adopted……. carried out before a specified date.

18. In fact Section 107(2) requires that in case of necessary, the appellate authority may hear the appeal with the aid of assessors, which itself goes to show that in the orders passed under Section 15(3), 38(1), 39 and - 19 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR 40(2), the services of assessor may require to decide the safety measures already taken or required to be taken. Section 107 has nothing to do with the criminal liability for which punishment is prescribed under Chapter X. Therefore, the say of learned counsel for accused that the complainant/Inspector was require to pass certain order, in the absence of which the proceedings are vitiated cannot be accepted and is without any substance. If such an argument is accepted, then no action could be taken against the occupier or Manager for violation of the provisions under the Factories Act, for which penalty is prescribed in Chapter X.

19. While deciding Mohammed Azeez, Vineet Agarwal and K.Rajashekar Reddy, the Co-ordinate Bench of this Court has not considered these aspects and therefore, no reliance could be placed on them. In fact in Patrick and Yashihirao Horinouchi Vs. The Deputy Director of Factories (Patrick & Yashihirao)6 the Co-ordinate 6 W.P.No.11451/2018 Dt: 06.12.2021 - 20 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 HC-KAR Bench of this Court has in detail examined the provisions of Factories Act and refused to quash criminal proceedings against the petitioners therein by holding that for taking criminal action, there is no need for the Inspector to pass any order on the explanation submitted by the occupier or Manager as the case may be. These two decisions are applicable to the case on hand. In fact in Ex.P11 which is a reply submitted to the accident investigation report, the accused have admitted that there are certain lapses and they are being corrected. It has nothing to do with the criminal liability incurred on account of the accident that has taken place.

20. In the light of prima facie material placed on record, the complainant be given opportunity to establish the allegations against accused person/petitioners. Consequently, it is not a case for quashing the criminal proceedings and this Court finds no justifiable grounds to interfere with the same. HC-KAR - 21 - NC: 2025:KHC:39376 CRL.P No. 5832 of 2023 C/W CRL.P No. 194 of 2022 CRL.P No. 7473 of 2023 ORDER (i) Petitions filed by petitioners under Section 482 of Cr.P.C, are hereby rejected. (ii) The Registry is directed to send a copy of this order to the trial Court through e- mail. Sd/- (J.M.KHAZI) JUDGE RR List No.: 1 Sl No.: 31