1. Petitioner Nos.1 and 2 were the Directors and petitioner No.3 was the Supervisor of M/s Sampath Refinary Pvt. Ltd., a company incorporated under the companies Act, engaged in manufacturing activity of refining and distillation of waste oil with the aid of electrical power. The petitioners have sought to quash the proceedings initiated against them in C.C.No.1646/2014 arising out of Crime No.140/2014 registered by the Mandya Rural police for the offence punishable under Section 304A r/w 34 of Indian Penal Code.
2. An accident took place in the above factory on 6.3.2014 at around 11 am, in which fatal injuries were sustained to five contract workers viz., Sreeram Yadav, aged 26 years, Chethu Kumar, aged 23 years, Raju Yadav, aged 30 years, Gama Yadav, aged 25 years and Bablu Kumar Yadav, aged 27 years. The information of the incident was received by the Assistant Director of Factories, Mysuru division through electronic media and immediately he visited the factory premises between 3 pm and 10 pm along with the Deputy Director of Factories and the Labour Officer and conducted enquiry and investigation into the accident. During enquiry, it revealed that the workers involved in the said accident had reported to duty at 9 a.m., on 6.3.2014 in general shift. As per the instructions of Gama Yadav, contract worker-supervisor, two other contract workers/helpers viz., Sreeram and Chethu Kumar took up the work of repairing the blades of the stirrer, clearing of the inner surface and removal of the sludge deposited at the bottom of the distilled oil bleaching tank of capacity 8 KL. In order to carry out the work, the workers opened up the man hole. Sreeram Yadav got inside the tank through manhole by using a rope. The other end of the rope was tied up to MS angle and held by Chethu Kumar and he was assisting Sreeram Yadav in getting into the distilled oil bleaching tank. Sreeram Yadav after going inside the tank was tightening the bolts of the stirrer blades. The work performed by him was observed by Chethu Kumar from the top of the Distilled Oil Bleaching Tank through the manhole. While doing so, Chethu Kumar observed that Sreeram Yadav was uncomfortable and he was not responding to his calls. Immediately, Chethu Kumar got inside the tank using the same rope in order to help Sreeram Yadav. In the process, he also got struck inside the oil tank. Similarly, other three workers viz., Raju Yadav, Gama Yadav and Bablu Yadav, one by one to help each other got inside the tank. In the process, all five workers got struck inside the tank at the bottom portion. Even after lapse of half-an-hour, none of the workers having come out of the distilled oil bleaching tank, the other workers contacted the owner and intimated local police authorities and fire brigade personnel regarding the occurrence. Fire Brigade personnel broke open the refractory brick wall provided around the said tank and cut open the cylindrical vessel by using gas cutter. After evacuating them, they were subjected for medical examination by the doctor present at the accident spot and on examination, the doctor declared them dead.
3. The contention of the petitioners is that without the knowledge and instructions of all the three petitioners or any other management personnel around 9 a.m. on 6.3.2014, Sreeram Yadav without taking precautionary measure entered into distilled oil tank and on account of suffocation, he fell unconscious. To save Sreeram, Chethu Yadav entered without following the safety measures, he also fell unconscious. To save these two employees, three other employees viz., Raju Yadav, Gama Yadav and Bablu Yadav, one after the other entered the distilled oil tank without taking proper safety measures and all of them fell unconscious. They were immediately shifted to government hospital and on medical examination, they were declared dead.
4. I have heard the learned Senior counsel appearing for the petitioners and learned SPP-II for respondent No.1.
5. Learned Senior counsel for the petitioners has mainly relied on the Judgment of this Court in Crl.P. Nos.9104/2009 c/w 9105/2009 and other matters (Ajit Kulkarni v. The State Of Karnataka By Sedam Police) and emphasized that in respect of the very same incident, the Factory Inspector had filed a criminal case in C.C.No.668/2014 on the file of learned JMFC, Mandya against petitioner No.2, Director-cum-Occupier under the Factories Act alleging violation of Rule 84 of the Karnataka Factories Rules r/w Section 7-A(2)(c) of Factories Act, 1948 ('The Act' for short). The JMFC, Mandya took cognizance of the matter and issued process to petitioner No.2 in C.C.No.668/2014. In view of the pendency of this case, respondent-police could not have assumed jurisdiction to file criminal case against the petitioners in respect of the very same accident. When a prosecution is launched under special law, prosecution under Section 304(2) r/w 34 of Indian Penal Code constitutes abuse of process of law. The action initiated against the petitioners is violative of section 300 of Cr.P.C,, 1973 and hence, the proceeding filed against the petitioners in C.C.No.1646/2014 are liable to be quashed. On the same point, learned counsel has placed reliance on the other decisions of this Court in Crl.P.No.201009/2014 Dated 21.04.2016 (M.Zakir Ahmed v. State Of Karnataka And Another) and Crl.P.No.5745/2014 Dated 27.1.2016 (Smt.V.Revathi And Another v. The State Of Karnataka). In support of his argument, learned counsel has also relied on the decision of the High Court of Jharkhand in 2007(113) FLR 1144 : LLR-2007-0- 866 (Ashwini Kumar Singh v. State Of Jharkhand); AIR 1983 SC 150 (T.Barai v. Henry Ah Hoe And Another); and ILR 2004 KAR 2297 (Vyshali Mahila Sama v. State Of Karnataka).
6. Further, referring to Sections 105 and 106 of the Act, learned counsel argued that the congnizance taken by the learned Magistrate being opposed to the provisions of the Act, the subsequent proceedings conducted by the learned Magistrate are also bad in law and without jurisdiction and hence, the entire proceedings are liable to be quashed at the hands of this Court in exercise of the jurisdiction under section 482 of the Cr.P.C., 1973 to prevent further abuse of the process of Court.
7. Learned SPP-II appearing for the respondent has argued in support of the impugned action contending that Section 88 of the Act permits simultaneous parallel proceedings for violation of the provisions of the Act, by the competent authority, as well as prosecution for the said offences before the competent criminal Court. The said section though makes it mandatory upon the prescribed authority to hold an inquiry or investigation into the alleged accident, but it does not oust the jurisdiction of the police officers to conduct investigation and to submit report to the Magistrate if any offence under the provisions of the Indian Penal Code are made out. In the instant case, Investigating Officer has collected incriminating material to prove the ingredients of the offence under Section 304A of the Indian Penal Code. Under the said circumstance, there is no reason to quash the proceedings initiated against the petitioners.
8. Upon hearing the learned counsels appearing for the parties and on going through the material on record, it is seen that the contentions raised by the parties are already considered and answered by this Court in AJIT KUKLARNI's case (supra) wherein considering identical questions of fact and law, this Court framed the following questions for consideration viz.,
"1. Whether initiation of prosecution under Section 304A of IPC while prosecution for offences punishable under section 92 of the Factories Act is legally permissible ?
2. Whether parallel or simultaneous prosecution is legally impermissible ?
3. Whether the contravention of Section 29(1)(a)(ii) and section 32(b) of the Factories Act, 1948 of the Factories Act punishable under Section 92 be clubbed with the offence punishable under Section 304A of Indian Penal Code?"
9. Referring to section 300 of Cr.P.C, 1973 and section 26 of the General Clauses Act and relevant decisions on the point, this Court took note of the fact that section 92 of the Factories Act provides for punishment of imprisonment for a period upto two years for contravention of any provisions of this Act and if such contravention has resulted in an accident causing death or serious bodily injury, minimum fine of Rs. 25,000/- in addition to imprisonment. Likewise Section 304-A prescribes that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Considering these provisions in the light of section 219 of Cr.P.C,, 1973 it was held that the offences made punishable under Section 92 of the Act and Section 304A of Indian Penal Code are of the same kind and are punishable with same quantum of punishment and hence, section 26 of the General Clauses Act becomes applicable requiring the offender to be prosecuted only under one enactment and consequently, the proceedings initiated against the accused therein were quashed. The ratio laid down in the above decision has been followed by this Court in the case of M.ZAKIR AHMED (supra) and V.REVATHI (supra).
10. I am in respectful agreement with the view taken by this Court in the above decisions. Even otherwise the scheme of the Factories Act does not permit parallel prosecutions under two different Acts against a person accused of committing offences under the Factories Act. Section 92 is the only section under the Act which makes the contravention of the provisions of the Act, punishable as criminal offence and prescribes punishment and fine.
11. The Section reads as under:
"92. General penalty for offences.--Save as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to 1[two years] or with fine which may extend to 2[one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to 3[one thousand rupees] for each day on which the contravention is so continued: 4[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than 5[twenty-five thousand rupees] in the case of an accident causing death, and 6 [five thousand rupees] in the case of an accident causing serious bodily injury.
From the reading of the above section, it is clear that whenever contravention of the provisions of the Act or the Rule made thereunder has resulted in an accident causing death or serious bodily injury, in addition to punishment of imprisonment for a term which may extend to two years or a minimum fine of Rs. 25,000/- is visited as penalty. This provision if read in the backdrop of Section 88 of the Act, it casts an obligation on the occupier to give notice of the accident within 48 hours immediately following the accident, to the authorities constituted under the Act. Section 9 of the Act deals with the powers of the Inspectors. It empowers the Inspectors to inquire into any accident or dangerous occurrence, resulting in bodily injury, disability and to take on the spot or otherwise the statements of any person which he may consider necessary for such inquiry. Thus, the scheme of the Act provides for an independent mechanism for inquiry or investigation into the accident taking place within the premises of the factory by the Inspectors, but it does not invest power on the police to register and investigate the offences against occupiers or other personnel of the factory. On the other hand, Section 105 of the Act mandates that no Court shall take cognizance of any offence under this Act except on complaint by, or with previous sanction in writing of, an Inspector. This provision, therefore, impliedly ousts the jurisdiction of the police to register FIR in respect of the alleged contraventions of the Factories Act and to embark upon investigation thereon even if the contravention leads to accident resulting in death or bodily injury within the factory premises. These special provisions therefore, prevail upon the general provisions contained in Indian Penal code and operate as implied repeal of the substantive offence created under the general law viz. Section 304A of Indian Penal Code as it renders the accused culpable for the same offence as described in Section 92 of the Act in respect of death or bodily injury arising due to contravention of the provisions of the Factories Act.
12. The above conclusion is drawn from the well established principle of law that, "when a later statute describes an offence created by an earlier statute and imposes different punishment or varies the procedure, the earlier statute is repealed by implication." This principle of statutory interpretation is reiterated by the Hon'ble Supreme Court in T.Barai v. Henry Ah Hoe And Another (AIR 1983 SC 150) in the following words :
"25. It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell v. Brown Lord Cambell put the matter thus :
"It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute See also Smith v. Benabo (1937) 1 A11 ER 523 (2) In Regina v. Youle, (1861) 158 ER 311-316 (3) Martin, B. said in the oft-quoted passage :
"If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act."
The rule is however subject to the limitation contained in Article 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act i.e. when the essential ingredients of the two offences are different.'
13. The facts on record clearly disclose that on getting information of the accident, the Deputy Director of Factories and Labour Officer rushed to the spot and took up inquiry/investigation and having ascertained that the petitioners herein contravened provisions of the Factories Act resulting in the death of five of its workers, filed a complaint before the Judicial Magistrate of First Class, Mandya on 9.4.2014. The same was numbered as C.C. No.668/2014. It is not in dispute that the learned Magistrate has taken cognizance of the alleged contraventions punishable under Section 92 of the Act and has issued summons to the petitioners. It is also not in dispute that the said complaint is filed within limitation prescribed under Section 106 of the Act. Undoubtedly, the proceedings in C.C. No.668/2014 are initiated in accordance with law and the same are pending consideration of the learned Magistrate. That being the case, Mandya Police could not have registered a case in Crime No.140/2014 against the petitioners for the alleged offence punishable under Section 304A r/w 34 of Indian Penal Code and proceeded with the investigation and filed a charge sheet for the above offences, nor could the learned Magistrate have taken cognizance of the said offence and issued summons to the petitioner. Needless to say that in view of specific bar contained in Section 105 of the Act, learned Magistrate could not have assumed jurisdiction to take cognizance of the alleged offence except upon the complaint filed by the authorized officer viz., Inspector appointed under the Factories Act. Moreover, learned magistrate having already taken cognizance of the alleged offence based on the complaint lodged by the Asst. Director of Factories, in view of section 26 of the General Clauses Act, cognizance taken by the learned Magistrate and the summons issued to the petitioners to face the charges for the alleged offence under Section 304A of Indian Penal Code being legally untenable cannot be sustained.
14. In view of the above factual and legal position, the registration of FIR against the petitioners by respondent No.1 and consequent investigation and submission of the charge sheet paving way for the prosecution of the petitioners for the alleged offence under Section 304A of Indian Penal Code as well as cognizance taken by the learned Magistrate and the prosecution initiated against the petitioners is held as illegal, without jurisdiction and a clear case of abuse of process of court.
For the above reasons, the petition is allowed. The proceedings in C.C.No.1646/2014 initiated against the petitioners are quashed.