The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1003 of 2021 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) K. Srinivasan & another ……. Petitioners -Versus- State of Orissa & another ……. Opposite Parties For the Petitioners : Mr. Jagabandhu Sahoo, Sr. Advocate Ms. Kajal Sahoo, Advocate For the Opp. Party No.1: Mr. S.R. Roul, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 06.09.2024 Date of Judgment: 23.12.2024 S.S. Mishra, J. 1. In the present petition, the petitioners have invoked the jurisdiction of this Court under Section 482 of the Cr.P.C. seeking quashing of the entire criminal prosecution launched against them
Legal Reasoning
and also challenged the order dated 09.02.2018 passed by learned JMFC, Jajpur Road, in 2(c) CC No.11 of 2018, whereby the learned Court below has taken cognizance of the offence punishable under Section 92 of the Factories Act, 1948 and accordingly summons have been issued to the accused petitioners to face the trial.
Legal Reasoning
2. Heard Mr. Jagabandhu Sahoo, learned Senior Advocate appearing for the petitioners and Mr. S.R. Roul, learned Additional Standing Counsel appearing for the opposite party- State. 3. The complaint case has been instituted at the instance of the opposite party No.2, the Assistant Director of Factories and Boilers, Jajpur Road Zone, Jajpur. 4. The allegation in the complaint, inter alia, is that M/s. Jindal Stainless Ltd., Kalinganagar, (Opp. Party No.3) purchased one Corocem, an anticorrosive product from the petitioners’ Company. The petitioners’ Company supplied Corocem in the year 2011 with a shelf life of one year and also provided requisite instructions for the safe disposal of the expired material to the Page 2 of 13 Opp. Party No.3. Despite this, Opp. Party No.3 neglected to dispose of the expired material and dumped it in an open space. Five years later, on 25.06.2017, a semi-skilled contract worker, namely, Jaladhar Pati, died in a fatal accident at the dump yard when a 5 liters white colour plastic container of expired Corocem Catalyst explored inside the plant premises. 5. The aforementioned incident had taken place on 25.06.2017 at about 12.40 P.M. at the Plantation area near plate Finishing Shop of Hot Strip Mill, which was inside the plant premises. Immediately, on the same day, a telephonic information was given by the Management to the concerned authority. Subsequent thereto, the information was also furnished in the prescribed format, i.e., Form No.18 on 27.06.2017. 6. On the basis of the aforementioned factual scenario, the Opp. Party No.2 had filed a complaint before the learned J.M.F.C., Jajpur Road on 04.10.2017 which was registered as 2(c) CC. No.11 of 2018. Accordingly, learned Court below has taken Page 3 of 13 cognizance of the offence under Section 92 of the Factories Act. Subsequently summons have been issued to the accused persons. Section 92 prescribes penalty for imprisonment for a term which may extend to two years or with fine which may extend to Rs.1 lakh or both. 7. The factual aspect, which have been enumerated in the preceding paragraphs are uncontroverted. Learned counsel for petitioners has questioned the cognizance order on many grounds. However, the prime attack is on the ground of limitation. 8. Mr. Sahoo, learned Senior Advocate for the petitioners, at the outset, has read out Section-106 of the Factories Act, which is reproduced: 106. Limitation of prosecutions.—No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector: Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed. [Explanation.— For the purposes of this section,— Page 4 of 13 (a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues; (b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired.]” 9. Learned counsel for the petitioners, by relying upon Form-18 and the complaint annexed to the present petition, has submitted that admittedly, the occurrence has taken place on 25.06.2017, which was telephonically informed to the authorities under the Factories Act on the same day, i.e., on 25.06.2017, also Form No.18 prescribed under the Rules was submitted on 27.06.2017. However, after expiry of the statutory limitation period of three months, the complaint was filed on 04.10.2017. Therefore, under the statutory prescribed limitation in the Factories Act, the learned trial Court was incapacitated to take the cognizance of the offence beyond three months. He further submitted that, if the limitation is reckoned either from 25.06.2017 or from 27.06.2017 (Form.18 received date), the complaint was time barred, as the complaint Page 5 of 13 was filed much after three months. The contents of the complaint are worth reproduced at this stage. “IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, JAJPUR ROAD. Case No…………………….. of 2017. 1. Name and details of the complainant:-Kedarnath Hansdah. Asst. Director of Factories & Boilers, Jajpur Road Zone, Jajpur Road. 2. Name and details of the accused:- Sri K. Srinivasan (Managing Director) & Mr. Ranji Varghese (Unit Head) of M/s. Carborundam Universal Limited (Super Refractories Division Plant-II) At- Mungileri Village, Vinnampalli Post, Katpadi Taluk, Vellore District, Tamilnadu, 632516. 3. Date of occurrence:- On 25.06.2017. 4. Offence (Section etc.):- Section 7-B of the Factories Act 1948 i.e. General duties of manufacturers as regards articles and substances for use in factories. 5. Witness and details:- Kedarnath Hansdah, Asst. Director of Factories & Boilers, Jajpur Road Zone, Jajpur Road. 6. Sanction if any:- Not required. 7. Documents:- (i) Copy of Enquiry report into fatal accident to Jaladhar Pati. (ii) Form-18 submitted by Management of M/s. Jindal Stainless Steel Ltd., Kalinganagar Industrial Complex, P.O. Danagadi, Dist: Jajpur, Page 6 of 13 (iii) Summon to accused Sri K. Srinivasan (Managing Director) & Mr. Ranji Varghese (Unit Head) of M/s. Carborundam Universal Limited (Super refractories Division Plant-II) At- Mungileri Village, Vinnampalli Post, Katpadi Taluk, Vellore District, Tamilnadu, 632516. 8. xxx xxx xxx RELIEF SOUGHT The complainant prays that the accused persons as detailed above be tried as offenders under the Factories Act and be punished under Sec-92 of the Factories Act, 1948. Dated the 04.10.2017. Sd/- Asst. Director of Factories & Boilers, Jajpur Road Zone, Jajpur Road.” 10. Learned counsel for the State on facts had nothing to contradict. On the premises of the aforementioned admitted facts, I proceed to examine as to whether the complaint filed by the opposite party No.2 against the petitioners is indeed barred under the limitation prescribed by Section 106 of the Factories Act, 1948. 11. Section 106 of the Factories Act, clearly prohibits the trial Court to take cognizance of the offence under the Factories Act unless the complaint is made within three months of the date on Page 7 of 13 which the alleged commission of the offence came to the knowledge of the Inspector. 12. The prime consideration to evaluate limitation is the date of ‘knowledge’ acquired by the Inspector. The expression employed in the provision makes it abundantly clear that, once any of the Inspectors working under the jurisdiction acquires the knowledge of the incident the limitation reckons from that day and the complaint must be filed within three months. It is not required under the said provision that the knowledge of the cause required to be known to the Officer in the higher echelons. 13. In the instant case the complaint itself, it is averred that the unfortunate incident which happened on 25.06.2017 at 12.40 P.M. was communicated to the Inspector over phone, on the same day, followed by the submission of the prescribed format of Form-18 on 27.06.2017. Therefore, the limitation is required to be reckoned from 25.06.2017 or at best from 27.06.2017. Accordingly, the complaint ought to have been filed on or before 25th September, 2017. However, in the instant case, the complaint Page 8 of 13 has been filed on 04.10.2017 and on 09.02.2018 the Court of the learned J.M.F.C, Jajpur Road had taken cognizance of the offence, which completely contravened the provision of Section 106 of the Factories Act 1948 being much beyond the limitation period. 14. Mr. Sahoo, learned Senior Advocate submitted that 3 months limitation connotes 90 days, this position of law has been settled. To substantiate the aforementioned submission, learned counsel for the petitioners has relied upon the judgment of the Hon'ble Jharkhand High Court in the case of Hemant Madhusudan Nerurkar and Another Vs State of Jharkhand and Another, (2021) SCCOnline Jhar 624 vide Order dt.15.09.2021 where the Hon’ble Court had quashed the complaint on the ground of limitation U/s. 106 of the Factories Act, the relevant paragraph Nos. 10 & 11 are reproduced hereunder:- "10. It is an admitted fact that the complaint was filed on took place on 20.09.2012. However, 19.06.2012. From the complaint itself in paragraph nos.3 and the occurrence Page 9 of 13 4, it is clear that it was in the knowledge of the Inspector that the occurrence took place on 19.06.2012 and there is no provision of condonation of delay. The revisional court's finding about the knowledge of date of filing of the report is erroneous as section 106 of the said act clearly speaks that no Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. The Court has also perused the cognizance order dated 24.09.2012 and finds that the learned judicial magistrate, Jamshedpur has taken cognizance in format thereby he has filled up the lines and section. It appears that he has not applied his judicial mind in order taking cognizance. The complaint petition itself is time barred under section 106 of the Factories Act. 11. In view of the aforesaid facts, the entire criminal proceedings in connection with C/2 Case No. 442 of 2012, pending in the court of learned Judicial Magistrate, 1st Class, Jamshedpur, including the order dated 21.02.2013 passed by the in learned Principal Sessions Judge, Jamshedpur Criminal Revision No. 297 of 2012 and also the order dated 24.09.2012 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in C/2 Case No. 442 of 2012 are, hereby, quashed. Petitioners have also relied upon the judgment of Hon’ble Jharkhand High Court in case of B. Sri Kumar and Others Vs. State of Jharkhand and another, (2007) SCC Online Jhar 609. Relevant paragraphs-11, 12 & 14 are reproduced here below: Page 10 of 13 "11. A mere perusal of the above provision makes it abundantly clear that the complaint must be filed within three months of the date on which commission of offence came to the knowledge of the Inspector. The period three months referred in section 106 of the Act means three calendar months i.e 90 days calculated at the rate of 30 days per month. This view finds support from the judgment of the Division Bench of the Andhra Pradesh High Court in the case of V.S Mehta reported in 1970 Crl.L.J 797. In the instant case, even as admitted by 12. the complainant/Inspector of Factories in his report of inquiry annexed to the petition of complaint, the information about the occurrence relating to the death of two workers in the factory premises of the petitioners was received by him in the night of 31.1.2005 The inspector thereafter proceeded on 1.2.2005 to inquire into the incident and in course of which, he had come to the finding that the occupier and Manager of the Factory had violated the specific provisions of the Rules and thereby, they had committed offences punishable under the Act. Even if the date of Knowledge of the commission of the alleged offence is taken to be 1.2.2005 for the purpose of computing the period of limitation, complaint should have been filed within 90 days thereafter and therefore, the complaint ought to have been filed by 3.5.2005, whereas the instant case was filed on 7.5.2005 and cognizance was taken of the offences on the same day by the learned Chief Judicial Magistrate. Apparently, there is a delay of four days in filing of the complaint. 14. As observed herein above, neither the Act nor the Rules framed thereunder provide for previous sanction of the State Government for prosecuting the offender under the Act. The Inspector of Factories, who in the instant case, is the complainant himself, was competent to file complaint and to Page 11 of 13 from sanction prosecute the offenders. The Explanation offered that the delay was occasioned on account of time consumed for obtaining the State for prosecution Government, is without basis. Section 106 of the Factories Act is a special Act and it provides specific period of limitation within which complaint should be filed. The nature of offence as alleged in the instant case, confines the period of limitation to three months. Since this is specific provision under the Special Act, the provisions of Chapter-XXXVI of the Cr.P.C will not apply. In the light of the above discussions, I find merit in this application. Accordingly, the same is allowed. The impugned order of cognizance dated 7.5.2005 passed by the Chief Judicial Magistrate, Jamshedpur in C/2 Case No. 1621 of 2005, is hereby quashed. 15. I have carefully gone through the judgments cited by the learned counsel for the petitioners and evaluated the said judgments in the light of the provision of law cited by learned counsel for the petitioners and the facts of the present case. There is no quarrel on the proposition of law propounded by the learned counsel for the petitioners regarding the period of limitation. It is mandated under law that every complaint needs to be filed within three months from the date of acquiring the knowledge by the Inspector of Factories. Accordingly, in the instant case, benefit must be extended to the present petitioners, as the complaint by Page 12 of 13 the Opp. Party No.2 has been filed after the lapse of the limitation period. Because admittedly the incident had taken place on 25.06.2017, although it is claimed that on the same day the information was furnished over phone to the authority, but it is factually disputed as to whether the information indeed was furnished to the Inspector or not. Be that as it may under the Rule, officially the Form 18 was filed on 27.06.2017. Therefore, the limitation shall be reckoned from that day. Since the complaint was filed on 04.10.2017 much beyond 90 days, hence, the same is barred under Section 106 of the Factories Act. Hence, the present CRLMC deserves to be allowed. 16. Therefore, the entire criminal proceeding and the impugned order dated 09.02.2018 passed by the learned J.M.F.C., Jajpur Road in 2(c) CC. Case No.11 of 2018 is set aside.
Decision
17. Accordingly, the CRLMC is allowed and disposed of. The High Court of Orissa, Cuttack Dated the 23rd December, 2024/ Subhasis Mohanty S.S. Mishra (Judge) Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 10-Jan-2025 19:34:10 Page 13 of 13