Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2216 of 2014 ----------- 1. Arvind Goel, Son of Sri Hari Goel.
2. Kuntal Ghosh, Son of Sri R.B. Ghosh. Both working at TACO Composites Limited, Plot No. 5532, Bay 9 & 10, Outer Complex, Tata Motors Limited, Telco Colony, P.O. & P.S.-Telco, Town-Jamshedpur, District-East Singhbhum. ……Petitioners Versus 1. State of Jharkhand.
2. Sri Awadesh Kumar Singh, Son of not known to the petitioner, presently posted as Factory Inspector, Jamshedpur Ancal No. 1, P.O. & P.S. Bistupur, Town-Jamshedpur, District-East Singhbhum. ….Opposite Parties ----- Coram: HON’BLE MR JUSTICE RONGON MUKHOPADHYAY ----- For the Petitioners : Mr. V.P. Singh, Sr. Advocate : Mr. A.K. Das, Advocate For the State : Mr. Shekhar Sinha, Advocate For O.P. No. 2 : None ----- C.A.V. On 17.12.2014 Pronounced on_11/3/2015 Heard Mr. V.P. Singh, learned counsel for the petitioners and Mr. Shekhar Sinha, learned counsel for the State. No one appears on behalf of opposite party no. 2 in spite of valid service of notice. In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with Case No. C/2-389 of 2012 including the order dated 7.8.2012, passed by learned Additional Chief Judicial Magistrate, at Jamshedpur, whereby and whereunder he has been pleased to take cognizance for the offence under section 92 of the Factories Act. The prosecution story as would appear from the prosecution report submitted by the Factory Inspector, Jamshedpur Area No. 1, Jamshedpur, is to the effect that on 4.5.2012, an accident had taken place in the factory premises of M/s TACO Composites Limited, Plot No.5532, wherein one Rohit Kumar Jha while he was climbing down the stairs, fell down and sustained injuries on his right leg. It was also alleged therein that since there was no railing in the ladders and as such the same is in violation of Rule 55A(2) of the Factories Rules and the petitioners have been made accused since they were working in the capacity of occupier and manager of the said Factory. After the prosecution report was submitted before the learned Additional Chief Judicial Magistrate, cognizance was taken vide order -2- dated 7.8.2012 for the offence under section 92 of the Factories Act., 1948. It was submitted by learned senior counsel for the petitioners that in contravention to the provisions of section 106 of the Factories Act, although the accident had taken place on 4.5.2012 but the complaint was filed on 7.8.2012, which is beyond the period of three months as prescribed under section 106 of the Factory Act and therefore the learned Additional Chief Judicial Magistrate, Jamshedpur has committed an error of law in taking cognizance for the offence under section 92 of the Factories Act. Learned counsel for the State, on the other hand, has submitted that although the accident had taken place on 4.5.2012 but information was received by the opposite party no. 2 herein on 7.5.2012 and the prosecution report was submitted on 7.8.2012, which in effect means that the same was within the period of 3 months, as prescribed under section 106 of the Factory Act. After hearing learned counsel for the parties and after going through the records, I find that the accident is admitted to have taken place on 4.5.2012 and it came to the knowledge of the opposite party no. 2 on 7.5.2012 and pursuant to the complaint filed by the opposite party no. 2, cognizance was taken for the offence under section 92 of the Factories Act, vide order dated 7.8.2012. Now it is to be seen as to whether the complaint was made within three months of the date on which the alleged commission of offence came to the knowledge of the Inspector. In the case of Haru Das Gupta Vs. State of West Bengal, reported in (1972) 1 SCC639while considering the period of detention of the detenu, a question arose as to when can the period of three months from the date of detention be said to have expired. In the aforesaid context, it was held that as a general rule, the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. Following the aforesaid judgment, the Hon’ble Supreme Court in the case of Saketh India Limited and others Vs. India Securities Limited, reported in (1999) 3 SCC1had held thus:- “7 The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. -3- Similar position is made in sub section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of the General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and for the purpose of including the last in a series of days or any other period of time, to use the word "to". In view of the aforesaid principles, the calculation as to whether the complaint was made within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspector and the starting point for making such calculation is 7.5.2012 on which date admittedly the opposite party no. 2 got information about the alleged accident, which occurred on account of there being no railing in the ladders, which was violation of Rule 55(A) (2) of the Factory Rules. However, from the complaint, which was sent to the learned Judicial Magistrate, Jamshedpur and which has been dated 4.8.2012 and on which there is an endorsement of the learned Additional Chief Judicial Magistrate on 7.8.2012, the entire calculation could have been thrashed out but in absence of any counter affidavit by the opposite party no. 2 or any statement to the effect as to when the complaint was received by the learned court below, the period has to be calculated assuming that the complaint was received by the learned A.C.J.M, Jamshedpur on 7.8.2012 itself. Section 106 of the Factories Act precludes a Court from taking cognizance of any offence punishable under the Act unless complaint is made within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspector. Therefore the crucial question, as has been indicated above, is the date on which the alleged commission of the offence came to the knowledge of the Inspector and the date on which the complaint has been made. Admittedly, on 7.5.2012, the date of the accident had came to the knowledge of the opposite party no. 2 and assuming that the complaint was made on 7.8.2012, the same in view of the discussions made above, normally fall within a period of three months as envisaged under section 106 of the Factories Act. While construing the meaning of the expression months and whether the same would mean a period of 30 days only in the backdrop of definition of month as given in Section 3 (35) of General Clauses Act, it was held in the case of Ramesh Chandra Amba Lal Joshi Vs. State of Gujrat and another, reported in AIR2014 SC1554as "therefore We cannot -4- ignore or eschew the word British Calendar while construing "month" under the Act. Accordingly, we are of the opinion that the period of six months cannot be calculated on 30 days in a month basis". Considering the judicial pronouncement referred to above with respect to the interpretation and construction of the word "month" coupled with the starting period of limitation would lead to a conclusion that the period of limitation started on 8.5.2012 and the last date for filing the complaint was 7.8.2012.Therefore, the opposite party no. 2 had filed the complaint case within the time prescribed under section 106 of the Factories Act and in such circumstances no interference is warranted in the criminal proceedings. Accordingly there being no merit in this application, the same is hereby dismissed. (Rongon Mukhopadhyay,J) Rakesh/