(Prayer: This Criminal Petition Is Filed Under Section 482 Of Cr.P.C. Praying To Quash The Proceedings In C.C.N0.802/2011 On The File Of Prl. C.J. (Jr.Dn.) And Jmfc, Doddaballapura).
1. The petitioners have approached this Court seeking quashing of the entire proceedings in C.C.No.802/2011 on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Doddaballapur registered against them for the offence under Section 304A of IPC.â
2. I have heard the arguments of the learned counsel appearing for the petitioners and also the learned High Court Government Pleader. Perused the records.
3. The Doddaballapur Rural Police has registered a case against the petitioners herein for the offence under Section 304A of IPC on the ground that on 5.2.2011 at about 6.30 p.m. in the premises of the factory by name M/s,Hexagon Bio-Pharma Pvt. Ltd., one Sri Arun Kumar was discharging his duty in the II Shift. At that time, there was an explosion of fuse as a result of which he suffered injury to his stomach. On the way to the hospital, he succumbed to the injuries. On the same day, at about 8.30 p.m., the father of the deceased, on the allegations that the employer has not taken careful measures to protect the interest and safety of the workers, filed a complaint before the Doddaballapura Police Station and as such the charge sheet has been filed for the aforesaid offence.
4. Learned counsel for the petitioners submits that on the same set of facts and circumstances, the Assistant Director of Factories, Division-14, Bangalore, Karmika Bhavan, Dairy Circle, Bannerghatta Road, Bangalore - 29, has lodged a private complaint before the same court in C.C.Ne.468/2011 for the offences under Section 92 of the Factories Act, making the above said allegations against the occupier of the said premises Sri Sheikh Bhasheer, accused No.4 in the police FIR and the said case was ended in conviction. It is alleged in the said private complaint that the occupier of the said premises has contravened the provision of Rule 84 of the Karnataka Factories Rules, 1969, R/w Section 41 of Factories Act, 1948. It is specifically alleged that said person was negligent in not following unsafe acts and unsafe conditions, that is to say:
"1. There was no arrangement provided to control the drum /basket while in motion and when the lid is in open condition.â
2. It was found that the machine was operated at higher speed than the manufacturers prescribed.
3. Casual approach was seen adopted in operating the machine which is totally incorrect and highlights the poor knowledge of the deceased about the hazards.
4. An unskilled workmen was assigned to work without providing proper training and Supervision.
5. The Centrifugal machine constitute as pressure vessel was found not subjected for periodical tests and examinations to ascertain its integrity, sound construction and safe working by a competent person."
5. Alleging the above said unsafe acts and unsafe conditions under the Factories Act, the accused No.4 was prosecuted. The order sheet of the trial court discloses that the accused No.4 herein (petitioner No.4) was convicted for the offences under Section 92 of the Factories Act and sentenced to pay fine of Rs.25,000/- for the said offence and in default to under go simple imprisonment for two days.
6. Learned counsel for the petitioner contended that when on similar facts and circumstances if the occupier of the premises is already convicted and sentenced, the same person and any other persons cannot be convicted for the same offences on the same facts. In this context, he has drawn my attention to the decision reported in 2007 LLR 856 rendered by Jarkhand High Court in the case of Ashwini Kumar Singh and another /vs. State of Kharkhand. At paragraph No.7, the said court has held that:
"the law is settled in the various decisions that the special law shall prevail over the general law but both shall not run concurrently for the same cause of action. I find that when the complaint case has been instituted vide C/2 No. 5211/05 under Special law (Factories Act, 1948) the continuation of the criminal prosecution against the petitioners for the offence prescribed in the general law of Indian Penal Code is unsustainable. In both the statues viz. under Section 304A Indian Penal Code (general law) and under Section 92 of the Factories Act, 1948 the sentence prescribed to the convict is similar but with additional fine to the extent of Rs.one lakh in the Special Act to the occupier and in this manner the extent of fine is more severe in special law and both cannot proceed at a time. The criminal prosecution of the petitioners, therefore, under Indian Penal Code is unsustainable".
7. The above said ruling is in fact aptly applicable to the facts of this case also. I don't find any reason to differ from the opinion expressed by the learned judge in the said decision. Apart from the above decision, Section 300 of Cr.P.C. also play a role in so far as this case is concerned, wherein the said provision deals with the inquiries and trials, which states that;
300. Person once convicted or acquitted not to be tried for same offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
(2)Â A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.
(3)Â A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.
(4)Â A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged -with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5)Â A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.
(6)Â Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897 ) or of section 188 of this Code.
8. On plain reading of the above said provision, it is crystal clear that the conviction or acquittal of a person in a criminal prosecution on the same facts for which a different charge can also be framed from the one made against him might have been convicted or acquitted such person cannot be tried once again on the same facts for the same offence or any other offences for which the person is prosecuted.
9. On reading of the above said provisions, it is clear that facts of this particular case, for which the accused has been convicted for the offense under Section 92 of the Factories Act are exactly the same to the alleged offences under Section 304A of the IPC. The court can frame charges under Section 304A, but it can only frame on the basis of the same facts. Therefore, in my opinion Section 300 of Cr.P.C. is also applicable to the present facts and circumstances of the case. Once the accused/petitioner No.4 herein has been convicted for the offences under Section 92 of the Factories Act, he or any other person cannot be once again prosecuted for the offences under Section 304A of IPC.
10. As could be seen from the charge sheet, it is clear that there is no specific allegations made against other accused persons/petitioners No.1 to 3. As rightly contended by the learned counsel for the petitioners that they are directors of the company ie., M/s. Hexagon Bio-Pharma Pvt. Ltd. and the prosecution wants to establish on the basis of the vicarious liability that they are also responsible for the negligent act of the petitioner No.4. There is no specific material placed to establish the liability for criminal prosecution against the directors. As could be seen from the records that charge sheet has been filed against all the accused persons who are responsible for the incident and therefore they are liable for the offences under 304A of IPC. An omnibus allegation is not sufficient to come to a definite conclusion that the allegations made against the petitioner No.l to 3 are separable and they can be tried separately for the offences under section 304A of IPC. Looking to the facts and law involved in this case shows that allegation made against accused No.1 to 4 are intertwined to each other and they cannot be separately dealt with and separately tried. Therefore, law applicable to the petitioner No.4 as well with all force applicable to petitioners No. 1 to 3 also. Therefore, in my opinion proceedings in C.C.No.802/2011 on the file of Principal Civil Judge (Junior Division) and JMFC; Doddaballapura, deserves to be quashed. Accordingly the said proceeding is hereby quashed.