K.N. Phaneendra, J.
1. The petitioners are arrayed as Accused Nos. 1 and 2 in CC No. 319/2013 on the file of the Chief Judicial Magistrate, Raichur, for the offence punishable under section 92 of the Factories Act, 1948.
2. The brief factual matrix of the case is that - On 26.7.2013 -at about 12.00 p.m., a person by name Sri Thammaiah, Executive Engineer (Safety), Raichur Thermal Power Station, Shakthinagar, Raichur, informed the complainant i.e., Assistant Director of Factories, Raichur Division, Raichur, about the electrical fatal accident which took place at outdoor yard, Lingsugur Line-Ill inside the premises of the factory. The complainant's office received notice on dangerous occurrence of cause of death of - one Anantha S/o. Vivekananda, while performing annual overhauling/break down maintenance work of 220/400 KV switch Yard equipments, such as SF6 circuit breakers, isolators, CTs, CVTs., PTs., Las., DG sets and LT Switch Gear. The deceased by name Anantha son of Vivekananda, Yadlapura, Raichur, was working, under one Nagesh, Contractor. He died in the Electrical accident. As he died in the factory premises, the case has been registered against the petitioners herein arraying them as accused.
3. It appears, during the pendency of the proceedings, when the case was posted for framing of charges, the petitioners have moved the Court by making an application under section 101 of the Factories Act, 1948.
4. As could be seen from the said application, it is in the nature of a complaint lodged against the contractor by name Nagesh stating that the petitioners were not responsible for the incident and not responsible for the death of Ananth son of Vivekananda. The said application came to be dismissed by the Trial Court on the sole technical ground that three days prior notice was not given to the prosecutor.
5. Being aggrieved by the order of the Chief Judicial Magistrate, Raichur in CC No. 319/2013 dated 10.7.2015, the petitioners have preferred a Criminal Revision Petition No. 65/2015 before the II Addl. District and Sessions, Judge, Raichur and that the learned District and Sessions Judge has also confirmed the dismissal order of the learned Chief Judicial Magistrate. Being aggrieved by the above said two orders, the petitioners are before this Court seeking quashing of the entire proceedings pending before the Chief Judicial Magistrate at Raichur in CC No. 319/2013.
6. I have heard the arguments of Sri Kalloor, learned Counsel for the petitioners and also the learned High Court. Government Pleader for the respondent - State. Perused the relevant materials on record and also the relevant provisions under the Factories Act, 1948.
7. The main contention of the learned Counsel for the petitioners is that the order of dismissal by the learned Chief Judicial Magistrate on the application filed under section 101 of the Factories Act, 1948 is too technical and that the learned Chief Judicial Magistrate has not applied his judicious mind to the materials produced by the petitioners and the evidence adduced by them. The materials on record clearly establish that, they were not responsible for the incident which took place on 26.7.2013. In fact, the private contractor Sri Nagesh, who has control over the said deceased Ananth son of Vivekananth has not taken sufficient care for the safety of his worker and he is responsible for the said incident. Without considering the materials on record on merits of the application, both the Courts have committed a serious error in dismissing the application filed by the petitioners.
8. The entire case on hand before this Court revolves around section 101 of the Factories Act, 1948. Now, the question is -
"Whether the Trial Court and the revisional Court have properly considered the provisions of section 101 of the Factories Act, 1948 or not and they have committed any serious legal error in dismissing the application on technical ground"?
9. In this background, the said provision of law i.e., section 101 of the Factories Act, 1948, which play a dominant role reads thus:
"101. Exemption, of occupier or manager from liability in certain cases:
Where the occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the prosecutor not less than three clear days' notice in writing of his intention so to do, to have any three clear days' notice in writing of his intention so to do, to have any other person whom the charges as the actual offender brought before the Court at the time appointment for hearing the charge; and if, after the commission of the offence has been proved, the occupier or manager of the factory, as the case may be, proves to tire satisfaction of the Court
(a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance,
that other person shall be convicted of the offence and shall be liable to that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the occupier or manager of the factory, and the occupier or manager, as the case may be, shall be discharged from any liability under this Act in respect of such offence."
10. On meaningful understanding of the said provision which says the service of notice by way of complaint to the prosecutor not less than three clear days in writing, prior to filing of the same before the Court is a requirement of law and according to both the courts, this has not been done by the petitioners. It appears, the main object of the said provision is to enable the prosecutor to properly counter the application. Though it is stated that three days prior to filing of the same, a notice in writing should be given to the prosecutor, expressing the intention that the petitioners are entitled to file a complaint against the third person who is responsible for the incident. In my opinion, the object and intention of the provision has to be understood in proper manner. The very object of the said provision is to provide an opportunity to the prosecutor to counter the said application in a proper and effective manner.
11. The provision further says that if the Court comes to the conclusion that some other person has committed the offence, then it should lead to discharge of the petitioners and it virtually terminates the proceedings against the petitioners. When such responsibility is bestowed on the Court, in my opinion, it should not have been dismissed the application merely on technical grounds. Further added to that, the learned Counsel brought to my notice that after issuing the said notice in the nature of complaint, the prosecutor has filed his objections after 7 days particularly on 21.5.2014. The learned prosecutor has specifically stated that the accused Nos. 1 and 2 (petitioners herein) wants to implead one Mr. Nagesh, Contractor, who is tire actual offender as per section 101 of the Factories Act, 1948. In view of the agreement between M/s. Raichur Thermal Power Station and Nagesh, it is specifically stated that the complainant has no objection to include Mr. Nagesh instead of accused Nos. 1 and 2. The above said memo makes it abundantly clear that the prosecutor has no objection to allow the application filed under section 101 of the Factories Act, 1948. The order of the Trial Court also disclose that subsequently the said memo was withdrawn and objections have been filed taking such technical contention regarding non service of three days' notice. But it is not stated by both the Courts as to what made the prosecutor to withdraw the said memo. Further, added to that, he had sufficient opportunity to contest the application after the said notice being issued. When once the objections are filed after lapse of more than two months, it cannot be said that there was no opportunity to the prosecutor to contest the application.
11.1 It is also relevant to observe here that, when the Court has come to the conclusion that the application filed under section 101 of Factories Act, 1948 was not maintainable because of the technical reason, it would not have allowed the parties to lead evidence. On the other hand, it permitted the petitioners to lead evidence and to mark documents on their side. When once the Court has said that they can lead evidence before the Court, it virtually permitted the petitioners to proceed with the case on their application under section 101 of the Factories Act, 1948. It virtually waved the issuance of notice. Therefore, in my opinion, the Courts below have committed serious error in dismissing the application as not maintainable after permitting the parties to lead evidence, and instead of hearing arguments on the merits of the application.
12. The second point that was raised by both the Courts below is that, no separate complaint has been filed by the petitioners as contemplated under section 101 of the Factories Act, 1948. Again, on clear reading of this provision, it discloses that notice has to be given to the prosecutor showing the intention to lodge a complaint against a private person, bringing it to the knowledge of the Court that some other person has committed the offence. The application filed under section 101 of the Factories Act, 1948 though called as an application in the nature of a notice to the prosecutor, but virtually the said application is in the nature of a private complaint. As could be seen from the said application, it contains the brief facts of the case and also the specific allegations made against one Sri Nagesh, Contractor and how he is liable for prosecution and how the petitioners are not liable for the prosecution and entitled for discharge. Therefore, the said application in the nature of a complaint ought to have been entertained by the Court allowing the parties to prove the contents of the said complaint.
13. When the Trial Court has considered the contents of the application under section 101 of the Factories Act, 1948 and provided opportunity to the parties, then it should have passed the orders on merits of the application instead of dismissing the same on technical grounds. Even revisional Court also not properly appreciated the materials on record, it simply puts its seal of confirmation of the order passed by the Trial Court, in my opinion, is also erroneous.
14. Though the learned Counsel Sri Kallui prayed before this Court to quash the entire proceedings, but while exercising powers under section 482 of the Cr.P.C., this Court cannot enter into the appreciation of any oral and documentary evidence on record. Therefore, in my opinion, so far as this case is concerned, it can only correct the mistake committed by the Trial Court and set into right path. Hence, I refrain from accepting the arguments of the learned counsel.
15. In view of my above said discussion, the order passed by the learned Magistrate as well as the learned Sessions Judge as noted above, are liable to be set aside and the matter requires to be remitted to the Trial Court for fresh disposal of the application on merits considering the oral and documentary evidence adduced by the petitioners.
16. Accordingly, the petition stands allowed and the matter is remitted to the Trial Court. The Trial Court is hereby directed to dispose of the application filed under section 101 of Factories Act, 1948 on its merits considering the oral and documentary evidence of the petitioners and after hearing both the parties, as expeditiously as possible within the outer limit of six months from the date of receipt of the copy of this order.
The learned Counsel for the petitioners submit that the petitioners may be exempted from appearance on all the dates of hearing. However, it is made it clear that the petitioners are at liberty to file necessary application under section 205 or under section 317 of Cr.P.C. and the Court has to dispose of the said application in accordance with law.
Petition Allowed.