The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2815 of 2024 (In the matter of an application under Sections 528 of the Bharatiya Nagarika Suraksha Sanhita, 2023) Rajeev Mittal ……. Petitioner -Versus- State of Orissa & another ……. Opposite Parties For the Petitioner : M/s. Haripad Mohanty, K. Sattar and D. Samantaray, Advocates For the Opp. Party No.1: Mr. S.N. Biswal, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 17.02.2025 : : Date of Judgment: 04.03.2025 S.S. Mishra, J. In the present petition, the petitioner has invoked the jurisdiction of this Court under Section 528 of the BNSS seeking quashing of the entire criminal prosecution launched against him and also challenged the order dated 24.06.2020 passed by learned S.D.J.M., Athagarh, in 2(C) C.C. No.06 of 2020, 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 petitioner to face the trial.
Legal Reasoning
2. Heard Mr. Haripad Mohanty, learned Advocate appearing for the petitioner and Mr. S.N. Biswal, 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, Cuttack Division, Cuttack. 4. The allegation in the complaint, inter alia, is that M/s Arati Steels Ltd. is a registered factory bearing Regn. No. CK-647 which is situated At- Ghantikhala, P.O. Mahakalabasta, Khuntuni, Dist- Cuttack. The incident so happened that a dangerous occurrence due to escape of molten metal along with charge particles and hot gas from 18 MVA Ferro Alloys Furnace-C occurred in the factory on 18.01.2020 at about Page 2 of 14 9.25 A.M resulting burn injuries to Sri Samir Kumar Beura and Sri Manoj Kumar Behera. 5. The aforementioned incident had taken place on 18.01.2020 at about 09.25 A.M. in the Ferro Alloys Plant, which was inside the plant premises. Immediately, on the same day, that is on 18.01.2020, then subsequently on 22.01.2020 and on 25.02.2020 the spot was visited by the complainant after receiving telephonic information about the same. He also visited M/s Aswini Trauma Centre where the injured were admitted. 6. On the basis of the aforementioned, the Opp. Party No.2 had filed a complaint before the learned S.D.J.M., Athagarh on 22.06.2020 which was registered as 2(C) C.C. No.06 of 2020. Accordingly, learned Court below has taken cognizance of the offence under Section 92 of the Factories Act which 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. Subsequently summons has been issued to the accused persons. Page 3 of 14 7. The factual aspect, which has been enumerated in the preceding paragraphs are uncontroverted. Learned counsel for petitioner has questioned the cognizance order on many grounds. However, the prime attack is on the ground of limitation. 8. Mr. Mohanty, learned Advocate for the petitioner, 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,— (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 petitioner, by relying upon Form-18 and the complaint annexed to the present petition, has submitted that admittedly, the occurrence has taken place on 18.01.2020, which was telephonically informed to the authorities under the Factories Act on the same day, i.e., Page 4 of 14 on 18.01.2020, and Form No.18 prescribed under the Rules was submitted on 24.01.2020. However, after expiry of the statutory limitation period of three months, the complaint was filed on 22.06.2020. 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 18.01.2020 or from 24.01.2020 (Form.18 received date), the complaint was time barred, as the complaint 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: ATHGARH: Criminal Case No……………………./ of 2020 1. Name and details of the complainant: Sri Chandrakanta Dalai, Aged about 36 years, Asst. Director of Factories & Boilers, Cuttack *** Zone-11, Qrs.No.3R/8, LIC Officers Colony, At- Jobra Lane Road, Post-College Square Dist-Cuttack, Pin-753003 2. Name and details of the accused : i. Sri Rajeev Mittal, Aged about 53 years, Occupier under Factories Act, 1948 S/o- Sri S.P. Mittal, At- Ghantikhala, P.O- Mahakalbasta Sub-Division- Athgarh, Dist- Cuttack Permanent Address:- Sri Rajeev Mittal, Aged about 53 years, S/o- Sri S.P. Mittal, At- G.T. Road, Miller Ganj, Ludhiana-151003. Page 5 of 14 State- Punjab. ii. Sri Paramesh Bhattacharya V.P. Manager under Factories Act, 1948 At - Ghantikhala, P.O- Mahakalbasta, P.S –Khuntuni- Athagarh, Dist- Cuttack Permanent Address :- Sri Paramesh Bhattacharya S/O- late Pranesh Bhattacharya At-daisy, D-2, New Alipore Residency 45 At-Broshibtala Main Road, Kolkatta 38, State-West Bengal 3. Date & Time of occurrence: 4. First Information Report if any: 5. Sanction if any : (Whenever necessary 6. Offence of section etc : 7. Witness & Details : The accident occurred on 18.01.2020 at about 09:25A.M Received Telephonic information from the management on 18.01.2020 at about 10.30 AM followed by notice of accident in Form No. 18 which was received in this office on 24.01.2020. The Asst. Director of Factories and Boilers is empowered under Section 105 of the Factories Act, 1948 & Rule 13(c) of Orissa Factories Rules, 1950 to file Prosecution Report Violation of Rule-62-C, Rule 62-H of The Orissa Factories Rules, 1950 framed under section-41 under The Factories Act, 1948 and Section- 7A(2)© of The Factories Act,1948. (i). Sri Chandrakanta Dalai, Aged about 38 years, Asst. Director of Factories & Boilers, Cuttack Zone-11, Qrs.No.3R/8, LIC Officers Colony, At- Jobra Lane Road, Post-College Square Dist-Cuttack, Pin-753003 (ii.) Sri Manoj Kumar Behera, injured person Address:- S/o-Yudhistir Behera, At/- Tulasipur, Mathasahi, Po-Tulasipur P.S- Bidanasi, Dist- Cuttack (iii) Sri Trilochan Swain, Shift In-charge Address:- S/o- Brundaban Swain At, - Kanthipur, P.S-Tigiria, Athagarh Dist-Cuttack (iv) Sri Papu Pradhan Address:- S/o- Prabhakar Pradhan At-Talabagha, P.O/P.S- Khuntuni, Dist- Cuttack (v) Sri Dipi Ranjan Sahoo, Control Room Page 6 of 14 Operator Address:- S/o-Bauribandhu Sahoo, At-Kantiokateni/P.S- Tumusinga, Dist- Dhenkanal.. 8. Documents (i)Original copy of notice of Accident report in Form No.18.(Annexure-I) (ii)Statement SriManoj Kumar Behera, injured person. (Annexure-II). (iii)Statement of Sri Trilochan Swain, shift In-charge (Annexure-III) (iv)Statement of Sri Papu Pradhan , Supervisor. (Annexure-IV) (v)Statement of Sri Dipti Ranjan Sahoo, Control room operator (Annexure-V) (vi)Photograph showing the place of incident. (Annexure-VI) (vii)Photo copy of Register of workers (Adult & Child) of injured persons. (Annexure-VII) (viii)Photo copy of Muster Roll Register of injured persons.(Annexure-VII) (ix)Photo copy of Identity Card of the injured persons. (Annexure-IX) (x)Health Checkup record in Form 31-A of the injured person. (Annexure-X) (xi)Medical treatment report of the injured person. (Annexure-XI) (xii)Photo copy of ESI Card of the injured person. (Annexure-XII) (xiii)Internal investigation report & Technical Report of M/s. Aarti Steels Ltd. (Annexure-XIII) (xiv)Photo copy of Contract Agreement between M/s. Venkateswar Engg. Work and M/s. Aarati Steels Ltd . (Annexure-XIV) (xv)Discharged Certificate of the injured persons from Hospital. (Annexure-XV) (xvi)Photocopy of Biometric Attendance Record. (Annexure-XVI) (xvii)Photocopy of SOP and SMP of 18 MVA Furnace. (Annexure-XVII) (xviii)Copy of Notification of posting of the complainant. (Annexure-XVIII) (xix)Copy of resolution of Govt. of Orissa, Labour & Employment Dept. dtd. 09-07-2004regarding the change of designation of Chief Inspector of Factories and Boilers and other sub-ordinates officers in the inspectorate of Factories and Boilers, Odisha. (Annexure-IX) (xx)Investigation report. (Annexure-XX) (xxi)Summons to witness and summon to Accused person are enclosed. Note:- Further documents, if any, in support of the Prosecution shall be produced as and when desired by the Hon’ble Court. 9. Brief facts of the case:-- M/s. Aarti Steels Ltd, is a registered factory bearing registration No. CK-647. situated At- Ghantikhala, P.O.- Mahakalbasta, P.S- Khuntuni, Dist-Cuttack. The factory is having one steel melting shop, two nos. DRI Kiln of capacity 500 TPD, 90 MW power plant, Coal Washery, Raw Materials Processing Plant (RMPP) which are in operation. Also there are 2 X9 MVA and 01(one) 18 MVA semi closed sub- merged electric Arc furnace do exist in the factory for production of high carbon Ferro Chrome (HCFC) using chromite ore lumps, chrome ore fines made to briquettes, coal, coke, quartzite, magnesite etc. as charge materials. A dangerous occurrence due to escape of molten metal along with charge particles and hot gas from 18 MVA Ferro Alloys Furnace-C occurred Page 7 of 14 in the factory on 18.01.2020 at about 9. 25A.M resulting burn injuries to Sri Samir Kumar Beura and Sri Manoj kumar Behera. The matter was investigated by the undersigned during visit to the factory on 18.01.2020, 22.01.2020, 25.02.2020 and visit to the hospital on 19.01.2020 and the following facts were revealed. Sri Samir Kumar Beura, aged about 26 years, S/O- Sanatan Beura. At-Parsurampur, P.O- Kanikol, Athagarh, Dist- Cuttack was working as helper and Manoj Kumar Behera, aged about 39 years, S/O- Yudhistir Behera, At- Tulasipur, Bidanasi, Dist-Cuttack was working as fork lift Operator and engaged through Contractor M/s Venkateswar Engg. work. On 18.01.2020 Sri Samir Kumar Beura reported in duty in "G" shift at about 8.00 A.M and Sri Manoj Kumar Behera reported in duty in A shift at about 6.00A.M. After reported on duty Sri Samir Kumar Beura was engaged for cleaning of glass window of the 18 MVA Ferro Alloys Control Room and Sri Manoj Kumar Behera was engaged for racking operation of 18 MVA Ferro Alloy Furnace -C. At about 9.25 A.M while Sri Behera was engaged for racking operation, suddenly the molten metal along with hot gas with flame and charge particles spread out in the furnace floor through furnace opening. While trying to escape from the Fork Lift cabin, Sri Behera came in contact with the hot gas and charge particles and sustained superficial thermal burn injury on face and both hand etc. At that time, Sri Beura was doing the cleaning work of window glass of furnace control room just nearer to the furnace and came in contact with the hot gas with flame and charge particles and sustained 50% thermal burn injury over face. back, lower and upper limb etc. They were taken to First Aid Centre of the factory and after necessary first aid treatment, they were taken to M/s. Ashwini Trauma Centre. Cuttack for further treatment. After treatment Sri Manoj Kumar Behera was discharged from the Hospital on 24.01.2020 & Sri Samir Kumar Beura on 16.03.2020. During investigation the following safety lapses were observed. 1.Due to leakage of the water from the 40NB cooling pipe line of pressure ring of the electrode 1& 2, the water came in contact with the molten metal resulting formation of localised ore bridge and the gases generated during the chemical reaction do not find a free path to escape for which the molten metal along with hot gas with flame and charge particles escaped from the furnace through the furnace opening and spread out in the furnace floor causing burn injuries to two workers. 2.The fork lift operator engaged in the racking operation without wearing proximity suit. 3.At the time of racking operation except fork lift operation, Sri Beura was allowed to work in the furnace floor. In the instant case the following provisions under The Factories Act, 1948 has been violated. (i). The effective mechanism found not put in place to stop the furnace operation just after leakage of water from the cooling pipeline of the pressure ring of the electrodes. Hence there is a violation of Rule-62-C of The Orissa Factories Rules, 1950 frame undersection 41 of The Factories Act, 1948. (ii) During racking operation the management has not provided fire proximity suit to the fork lift operator. Hence there is a violation of Rule-62-H of The Orissa Factories Rule, 1950 framed under Section-41 under The Factories Act, 1948. (iii) At the time of racking operation, Sri Samir Kumar Beura was allowed to clean of the furnace control room glass window in the furnace floor. Hence there is a violation Sec-7A(2)(C) of F. Act, 1948 for inadequate supervision. Hence this P.R is filed against the occupier and manger of the factory in the Hon'ble Court for the above mentioned violations. RELIEF SOUGHT The complainant prays that the accused persons detailed above be tried and punished under section 92 of the Factories Act, 1948 (Amendment Act of 1987) for the violation of Rule-62-C, Rule 62-H of The Orissa Factories Rules, 1950 framed under section 41 of The Factories Act, 1948 and Sec-7A(2)(C) of The Factories Act, 1948. Dated the 22.06.2020. Sd/- Asst. Director of Factories and Boilers, Cuttack Division Cuttack” Page 8 of 14 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 petitioner 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 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. Page 9 of 14 13. In the instant case in the complaint itself, it is averred that the unfortunate incident which happened on 18.01.2020 at around 09.25 A.M. was communicated to the Inspector over phone, on the same day, followed by the submission of the prescribed format of Form-18 on 24.01.2020. Therefore, the limitation is required to be reckoned from 18.01.2020 or at best from 24.01.2020. Accordingly, the complaint ought to have been filed on or before 23rd April, 2020. However, in the instant case, the complaint has been filed on 22.06.2020 and on 24.06.2020 the Court of the learned S.D.J.M, Athagarh had taken cognizance of the offence, which completely in contravention with the provision of Section 106 of the Factories Act, 1948 being much beyond the limitation period. 14. Mr. Mohanty, learned 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 petitioner 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 Page 10 of 14 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 20.09.2012. However, the occurrence took place on 19.06.2012. From the complaint itself in paragraph nos.3 and 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 learned Principal Sessions Judge, Jamshedpur in Criminal Revision No. 297 of 2012 and also the order dated 24.09.2012 learned Judicial Magistrate, 1st Class, passed by Jamshedpur in C/2 Case No. 442 of 2012 are, hereby, quashed. the Petitioner has also relied upon the judgment of Hon’ble Jharkhand High Court in case of B. Sri Kumar and Others Vs. State of Jharkhand and Page 11 of 14 another, (2007) SCC Online Jhar 609. Relevant paragraphs-11, 12 & 14 are reproduced here below: "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. 12. In the instant case, even as admitted by 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 prosecute the offenders. The Explanation offered that the delay was occasioned on account of time consumed for obtaining Page 12 of 14 sanction for prosecution from the State 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 petitioner and evaluated the said judgments in the light of the provision of law cited by learned counsel for the petitioner and the facts of the present case. There is no quarrel on the proposition of law propounded by the learned counsel for the petitioner 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 petitioner, as the complaint by the Opp. Party No.2 has been filed after the lapse of the limitation period. Because admittedly the incident had taken place on 18.01.2020, although it is claimed that on the same day the information was furnished over phone Page 13 of 14 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 24.01.2020. Therefore, the limitation shall be reckoned from that day. Since the complaint was filed on 22.06.2020 much beyond 90 days, hence, the same is barred by 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 24.06.2020 passed by the learned S.D.J.M., Athagarh in 2(C) CC. Case No.06 of 2020 is set aside.
Decision
17. Accordingly, the CRLMC is allowed and disposed of. Judge (S.S. Mishra) The High Court of Orissa, Cuttack. Dated the 4th March, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 10-Mar-2025 19:47:07 Page 14 of 14