Atul Churiwala Vs. State of Orissa - Court Judgment

Excerpt:
criminal - conviction - quashing of - section 401 of code of criminal procedure, 1973 (cr. pc) - inspector of factories and boilers found defaults in inspection of factory of petitioner - after inspection, inspector communicated inspection report to petitioner for seeking clarification - no response made out by petitioner - thereafter, inspector submitted prosecution report before trial court for initiation of prosecution against petitioner - trial court convicted petitioner - petitioner filed criminal appeal before appellate court - appeal rejected - hence present revision filed under section 401 of cr. pc - held, as per established facts, petitioner was not present in factory at time of conducting inspection of same by inspector - also found that petitioner did not received inspection report or show cause notice in respect of alleged defaults and initiation of prosecution - prosecution's evidences was not corroborated by any independent witnesses - therefore, petitioner could not be prosecuted on basis of prosecutions' case presented before court - accordingly, impugned order set aside and present revision allowed - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 2. the prosecution case is that on 1.2.1992 the inspector of factories and boilers, balasore, on inspection of krushi rasayan factory situated at ranital in the district of balasore manufacturing agricultural pesticides, detected certain violations such as presence of considerable amount of dust, poor ventilation of the work room, non-guarding of crusher of v. belt, poor house keeping, non-supply of protective garments to the workers, non-availability of washing and bathing facilities, absence of periodical check up of workers and insufficient fire extinguishers etc. state reported in (1995) ocr 530, the law is well settled that powers of revisional court and findings of fact cannot be called in question unless shown to be perverse. but normally the jurisdiction of this court in revision is to be exercised to set aside an order in exceptional case when there is glaring defect or there is manifest error on a point of law which has clearly resulted in miscarriage of justice and this court is not excepted to act in its revisional jurisdiction as if it is hearing an appeal but concurrent findings recorded by the trial and appellate court cannot be stamped as infallible because by they are concurrent nor can the conviction recorded by the two courts be maintained if it is legally unfounded and unsustainable. 1 goes to indicate that though he stated to have sent show cause notice to the accused by registered post but he has failed to show any postal receipt nor acknowledgement to the effect that the notice was despatched by registered post. the law is well settled that non-compliance of the statutory provision and the manner prescribed (service of notice in the present case) vitiates the proceeding. 1 has stated to have inspected the factory many a time but he has failed to say whether p. 1 clearly goes to show that all the earlier facilities like laboratory, washing facilities were being provided by the owner of the factory.m. papanna, j.1. this is an application under section 401 of the code of criminal procedure seeking to quash the judgment dated 2.5.1995 passed by the learned addl. sessions judge, bhadrak, in criminal appeal no. 31 of 1994 confirming the order of conviction recorded by the learned j.m.f.c, bhadrak in 2 (c) c.c.no. 60/92 sentencing the petitioner to pay a fine of rs. 5,000/- but modifying the default sentence to s.i. for six months instead of s.i. for one year.2. the prosecution case is that on 1.2.1992 the inspector of factories and boilers, balasore, on inspection of krushi rasayan factory situated at ranital in the district of balasore manufacturing agricultural pesticides, detected certain violations such as presence of considerable amount of dust, poor ventilation of the work room, non-guarding of crusher of v. belt, poor house keeping, non-supply of protective garments to the workers, non-availability of washing and bathing facilities, absence of periodical check up of workers and insufficient fire extinguishers etc. after inspecting the factory in presence of manager, shri sanjay kumar jain, the inspector of factories communicated the inspection report to the occupier of the factory (hereinafter referred to as the accused) pointing out the aforesaid defects requiring him to comply with the same within 15 days but the same having gone unheeded by the accused, a reminder dated 28.3.1992 was sent to him for making necessary compliance but of no use. hence, after issuing a notice to show cause to the accused, the inspector submitted the prosecution report for launching prosecution against the accused.3. the accused, who pleaded innocence, claimed for trial with the defence plea that the factory in question was not at all inspected on the alleged date of occurrence.4. the prosecution, in order to bring home the guilt to the accused, examined only the inspector of factories and boilers, balasore as p. w. 1 and none else.5. the defence, on the other hand, examined one kailash chandra sahu, the supervisor of the factory as d.w. 1.6. on consideration of the sole testimony of the inspector of factories alone, the learned trial judge having believed the prosecution case as true and genuine, convicted and sentenced the accused-petitioner as stated above and on appeal, the learned addl. sessions judge, bhudrak while maintaining the order of conviction, modified the default sentence as stated above.7. shri g. c. mishra, learned counsel appearing for the petitioner addressed the following contentions : (i) the inspector of factories being an official witness, his sole testimony without being corroborated by any other witness ought not to have been relied upon by the learned courts below to reach a conclusion that the accused has committed certain violations,(ii) the violations said to have been committed by the accused having been not specified in the p.r. nor the p.r. itself being communicated to the accused, the findings as above arrived at by them has gone wrong and the same is liable to be set aside, and(iii) that apart the learned counsel for the petitioner has questioned about the territorial jurisdiction of the court concerned in trying the alleged offence.8. on the other hand, the learned counsel appearing for the state has supported the impugned order of conviction and sentence as justified.9. in punia behera alias purna chandra behera v. state reported in (1995) ocr 530, the law is well settled that powers of revisional court and findings of fact cannot be called in question unless shown to be perverse. a finding is perverse when no reasonable man on a consideration of the materials on record can arrive at such findings. in another case reported in 1987 (ii) olr 304 (bhola v. state), this court has ruled that concurrent findings of both the courts below do not require interference and such findings should not be disturbed in revision. but normally the jurisdiction of this court in revision is to be exercised to set aside an order in exceptional case when there is glaring defect or there is manifest error on a point of law which has clearly resulted in miscarriage of justice and this court is not excepted to act in its revisional jurisdiction as if it is hearing an appeal but concurrent findings recorded by the trial and appellate court cannot be stamped as infallible because by they are concurrent nor can the conviction recorded by the two courts be maintained if it is legally unfounded and unsustainable. the above view is taken in 1986 (i) crimes, 456 (panchanan alias panchu sahu and ors. v. sanatan barik). in another decision of this court reported in 1984 (i) olr 438 (narayan behera v. the state), it is held that concurrent findings can be interfered with if the judgments are unreasonable and unfounded.10. having gone through the rulings referred to above and in view of the ratios of the said decisions particularly when both questions of fact and law are involved in the case at hand, it is felt expedient and desirable under law to examine the evidence on record to see if the findings of the learned courts below are based on no evidence or otherwise vitiated and no reasonable conclusion can be drawn regarding guilt of the accused.11. with regard to the question of territorial jurisdiction of the trial court, obviously such question was not raised by the defence at the trial stage but, however, it was raised before the learned addl. sessions judge, who had opined that since the appellant had not raised this question at the trial stage, it could not be decided at the appellate stage in my considered view, question of jurisdiction is purely a question of law and it can be raised and entertained for the first time in revision, even though it was not raised before the trial court. this view gets support from a decision reported in 1988 (ii) olr 137(bhagaban sahu v. state) wherein it is held that a question of law can be raised and entertained for the first time in revision. the question, whether 'amulspray' was baby food at the relevant date being a pure question of law, permitted to be raised before this court for the first time even though, such a contention has not been raised in the two courts below. in the instant case. krushi rasayan factory situated at ranital comes under bhadrak (rural) police station which in turn comes under the jurisdiction of the court of the s.d.j.m., bhadrak. in an affidavit sworn and filed by the petitioner himself in connection with condonation of delay in filing the appeal before the learned addl. sessions judge, he has shown the police station as bhadrak (rural). section 106a of the factories act says that for the purpose of conferring jurisdiction on any court in relation to an offence under this act or the rules made thereunder in connection with operation of any plant, the place where the plant is for the time being situates shall be deemed to be the place where such offences have been committed. since in the present case, the factory is situated at ranital under bhadrak (rural) p.s. which comes under the territorial jurisdiction of the court of the s.d.j.m, bhadrak who has rightly tried the case, the contention of the learned counsel for the petitioner from the point of territorial jurisdiction cannot be accepted.12. now coming to the question of service of notice on the accused, the defence has taken the plea that before launching prosecution against the accused, service of notice on him by registered post is mandatory as contemplated under rule 102 of the orissa factories rules. 1950. the provision of rule 102 of the said rules envisages that despatch by post under registered cover of any notice or order shall be deemed sufficient service on the occupier, owner or manager of a factory of such notice or order. in the instant case, perusal of the evidence of p.w. 1 goes to indicate that though he stated to have sent show cause notice to the accused by registered post but he has failed to show any postal receipt nor acknowledgement to the effect that the notice was despatched by registered post. burden of proof lies on the prosecution to prove the service of notice on the accused in the manner prescribed. the law is well settled that non-compliance of the statutory provision and the manner prescribed (service of notice in the present case) vitiates the proceeding. if a manner is prescribed to do certain thing in a certain manner, the thing must be done in that manner only and all other modes or manner shall make the proceeding non est. in the absence of proof that show cause notice was despatched by post under registered cover addressed to the occupier or owner or manager of a factory mandatory provision of rule 102 of the orissa factories rules, 1950, is said to have been not complied with.13. during trial the defence has taken the plea that the factory in question was never inspected on the alleged date of occurrence. evidence of p.w.i shows that on 1.2.1992 he inspected the factory and found certain violations under various provisions of the factories act, 1948 and the rules made thereunder but the p.r. itself does not specify the manner of violations committed by the occupier of the factory. this is the main and major infirmity inherent in the prosecution case. this, read with the evidence of d.w.i shows that on 1.2.1992 the factory manager and himself were on duty but no inspection was made by p.w. 1. furthermore, in the absence of corroboration to the evidence of p.w.1 and non-recording of the statements of the factory manager of any worker of the factory to the effect that such inspection was made, reliance cannot be placed on the single and solitary testimony of p.w.1.14. admittedly the accused was remaining in calcutta at the time of alleged inspection of the factory, so the manager, supervisor and the workers of the factory are supposed to have been present during the said inspection of the factory. p.w.i could not say whether the accused received the inspection report and the show cause notice nor there is any proof in the record to show that they were served on the accused. under the factories act, the occupier is liable to any violation committed under different provisions of the act. during the cross-examination p.w. 1 has stated to have inspected the factory many a time but he has failed to say whether p.r., if any, was submitted for any such violation in the past. as per his statement on earlier occasions though he inspected the factory but could not file the p.r. as it was barred by time. this cannot be believed to be true in the absence of proof. further more, exts. 1,2 and 3 said to be the office copies of the inspection report, reminder and show cause notice, do not bear certificates to the effect that they are the true copies of the original. there is also no explanation as to why the said copies were not submitted to the court along with the p.r. on the other hand, the evidence of p.w. 1 clearly goes to show that all the earlier facilities like laboratory, washing facilities were being provided by the owner of the factory. there were also drinking water facilities available in the factory premises. that apart, the employees of the factory were provided with mask, globes, gum bosts, eye glasses etc.. according to him, fire extinguishers and appliances were also available in the factory premises to prevent fire accident. at the same time first aid facilities with one company doctor were available for any mishap. there was also a hospital at ranital. during the cross-examination, the evidence of d.w.i remained unassailable by the prosecution.15. on the whole, evidence of p.w. 1 being uncorroborated by independent witnesses, documents such as different registers of the factory which are acquired to be produced during the alleged inspection have not been signed and notice to show cause having been not sent to the occupier of the factory doubt arises regarding genuineness of the prosecution case. at the same time, the alleged violations have not been put to the accused for his explanation during examination under section 313, cr.p.c. which has been dispensed with in the present case. in this regard, decision of karnatak high court reported in lab. i.c. 538, s. harbanslal v. state of karnataka can be relied upon. in the reported case the ext. p3 has not been put to the petitioner when his statement was recorded under section 342 of the code of criminal procedure, 1898. therefore no reliance was placed on the contents of ext.p3 against the petitioner. the said aspect of the matter was ignored by the two courts below. in the instant case also the learned courts below ignored to consider this aspect of the matter by not putting the allegedly violations to the petitioner.16. therefore, in the result, in view of the glaring defects in the prosecution case as pointed out above and the findings of the courts below having been perverse, unfounded and unreasonable under law. their concurrent findings are liable to be set aside. accordingly, the revision is allowed and the impugned judgments of the courts below are set aside. if the fine amount has already been realised in the meantime, the same may be refunded to the petitioner.