TaxTMI 
TaxTMI 
2022 (6) TMI 1448
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....brief factual matrix as is necessary to appreciate the controversy involved in the present case is as under:- 2.1 The FIR in question had been registered on the allegations that Parshotam Singh (non-petitioner) is the sole proprietor and owner of Sidhu Industrial Corporation situated in Village Dhudiawal Baba Deep Singh Nagar, Near R.C.F. Hussainpur. His sons Dhanpreet Singh and Dilpreet Singh (petitioners- herein) are engaged in manufacturing of the floor of the railway coaches on contract basis with RCF Kapurthala. For the said purposes Parshotam Singh and his son Dhanpreet Singh have set up Bedding Press Plasma Soap, EOT Crane No. 2, EOT Crane No. 1 in their factory and employed 70-75 labourers. It was stated that the tenure of the machines and bedding press installed in the factory had already matured, but despite being aware of the same, machinery was not replaced, thus endangering safety of the labourers. It was also alleged that instead of appointing skilled workers in the factory, they are getting the work executed from un-skilled labourers by paying less to those who do not possess any sort of experience. 2.2 On the day of occurrence, the nut-bolt studs b....
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....operations and that the deceased was a labourer assisting the foreman/technician. It is also pointed out that the machine was not old and had been purchased on 28.03.2013. The sale letter was also appended along with the challan. Hence, it was merely a 5 year old machine. There was nothing on record to suggest that the machine had outlived its life. The said documents were also appended along with the revision petition to reflect the status of the factory as that of a sole proprietorship. 2.6 It was also pointed out that documents of incorporation of the sole proprietorship firm as well as also the GST registration etc of the factories showed they were independent sole proprietorship units and that there was no evidence on record to substantiate that the petitioners had any concern with the operation and affairs of the said unit. It was thus contended that there was nothing to substantiate a prima facie case against the petitioners herein. 2.7 That the Revisional Court however dismissed the revision petition so preferred by the petitioners after observing that as per the investigation conducted by the investigating agency, the firm was being run by Parshotam Singh....
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....perly and that as a fault of the labourer/workmen themselves, the equipment may have been damaged. He has further argued that there is no report by any technical person to substantiate about the fitness of the structure and that in the absence of any such corroborative material, it cannot be perceived that the machine had to be replaced for having outlived its life or being outdated. 5. Another argument raised by the petitioners is to the effect that the offence in question would be governed by a special statute, viz. The Factories Act, 1948, as the field is occupied by a special statute and as such proceedings under the general provisions of Indian Penal Code could not have been instituted. He has drawn attention to Section 92 and 93 of the Factories Act 1948. The same are reproduced as under:- Section 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 g....
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....to the floors or flats and maintenance and cleanliness of staircases and common passages; (iv) precautions in case of fire; (v) maintenance of hoists and lifts; and (vi) maintenance of any other common facilities provided in the premises. (4) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out the provisions of subsection (3). (5) The provisions of sub-section (3) relating to the liability of the owner shall apply where in any premises independent rooms with common latrines, urinals and washing facilities are leased to different occupiers for use as separate factories: Provided that the owner shall be responsible also for complying with the requirements relating to the provision and maintenance of latrines, urinals and washing facilities. (6) The Chief Inspector shall have, subject to the control of the State Government, the power to issue orders to the owner of the premises referred to in sub-section (5) in respect of the carrying out of the provisions of section 46 or section 48. (7) Where in any prem....
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.... by Assistant Superintendent of Police, Kovilpatti Sub Division, Thoothukudi District & Ors, 2015 (13) RCR (Criminal) 451, to buttress the said argument. ARGUMENTS OF RESPONDENT-STATE: 8. A perusal of the written statement filed by respondent-State would show that the respondent have submitted in the said reply reproduced hereinbelow:- 3. That it is respectfully submitted that brief facts of the case as per the version of FIR are that on 19.11.2018 Special Naka bandi was done at Gate no. 3, RCF when special information was received that Sidhu Industrial Corporation is situated in Village Dhudianwal Baba Deep Singh Nagar, Near RCF Hussainpur and its owner is Parshottam Singh s/o Nagina Singh and his sons Dhanpreet Singh and Dilpreet Singh (Petitioners no. 1 and 2) manufacturer floors of railway Coaches on contract basis with Railway Coach Factory and send the same to Railway Coach Factory, Kapurthala and Rae Barelli. That to prepare all these Parshottam Singh and his son Dhanpreet Singh have set up machines i.e. Bedding press Plasma Soap, EOT Crane number 2, EOT Crane number 1 etc. at present about 70-75 labourers work in this factory. That the tenure of the machines ....
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....of the petition are matter of record pertaining to the details of the GST returns. However, it does not preclude the petitioners from their being in charge of the machinery and accounts at the factory which is owned by their father. The petitioners were working with outdated machinery and the same was in need of replacement / repair. The petitioners were looking after the work and affairs of the Sidhu Industrial Corporation. This fact has been duly corroborated by the injured Swaran Singh and other witness working as labourer. The story that the petitioners were neither owners nor partners of the concern Sidhu Industrial Corporation is concocted and an afterthought. Further it is submitted that the role of the petitioners shall be verified / decided by the Ld. Trial Court. The documents attached as Annexure P-5 and P6 have no relevancy with the registration of the case. It is pertinent to mention here that as per annexure P-8 Postal E-mail address pertains to Dilipreet Singh petitioner No. 2. 7. That the contents of Para No. 7 of the petition are matter of record pertaining to the GST document. However, the same is not relevant with the commission of crime as both the peti....
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....pect of labor safety or welfare assumed urgent importance, the general framework has remained unchanged. The provisions for the safety, health and welfare of workers are generally found to be inadequate and unsatisfactory and even such protection as is provided does not extend to the large mass of workers employed in work places not covered by the Act. In view of the large and growing industrial activities in the country, a radical overhauling of the Factories law is essentially called for and cannot be delayed. The proposed legislation differs materially from the existing law in several respects. Some of the important features are herein mentioned. Under the definition of "Factory" in the Act of 1934, several undertakings are excluded from its scope but it is essential that important basic provisions relating to health, working hours, holidays, lighting and ventilation, should be extended to all workplaces in view of the unsatisfactory state of affairs now prevailing in unregulated factories. Further, the present distinction between seasonal and perennial factories which has little justification has been done away with. The minimum age of employment for children has been ....
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....that the petitioners did not prescribe to the safety precautions mandated by the Chief Inspector of Factories, but are to the effect that machinery so installed had outlived its life. It is also alleged that even though the said aspect was duly brought to the notice of the management, however, the management chose not to take corrective measures thus risking the lives of the workers. The counsel for the petitioners has failed to point out any provision of law that merely because an offence also happens to be in violation of a special statute, the offence punishable under the Indian Penal Code would not get attracted, despite, the necessary ingredients being satisfied. As a matter of fact, Section 119 of the Factories Act has been given an overriding effect with anything inconsistent contained in the Contract Labour (Regulation and Abolition) Act 1970 or any other law for the time being in force. Learned counsel has failed to point out as to how the provisions of Section 304-A IPC would be inconsistent with the provisions contained under the Factories Act, 1948. The provision of the Factories Act, 1948 are not in substitution of any other Act but are supplemental to the same. It doe....
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....nder two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. While considering a dispute about the prosecution of the Respondent therein for offences under the Mines and Minerals (Development and Regulation) Act 1957 and Indian Penal Code, this Court in State (NCT of Delhi) v. Sanjay held that there is no bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offences. A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point. 15. Furthermore, in the judgment dated 18.12.2019 passed in Criminal Appeal No. 1920 of 2019 titled as Kanwar Pal Singh Vs. State of Uttar Pradesh & Another, the Hon'ble Supreme Court held as under:- 6. This Court in Sanjay (supra) has cited several decisions wherein the challenge to the prosecution on the ground that there can be no multiplicity of offences under different enactments was resolved and answered by relying upon Section 26 of the Gen....
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....e of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels. 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take AIR 1965 SC 666, (2011) 1 SCC 534 cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizan....
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....ral Clauses Act, the prosecution of the petitioners for offences punishable under Indian Penal Code cannot be held bad and liable to be set aside merely because such an offence is also punishable under the Factories Act, 1948. The same would only be a fact to be noticed at the time of punishment. Moreover, it is not a case where the Magistrate had taken cognizance of the alleged contravention for being punishable under Section 92 of the Factories Act, 1948 and had not issued summons to the petitioners to face prosecution for violation of the Factories Act, 1948. In the absence of the petitioners being prosecuted or being tried under the Factories Act 1948, it cannot be contended by the petitioners that as the offence in question is also punishable under a separate statute, hence they must necessarily be prosecuted under the same statute only and cannot be prosecuted under any other statute despite the ingredients of the offence being made out. 17. The same now leads this court to examine the applicability of Section 304-A of the IPC against the petitioners and as to whether the necessary ingredients for commission of the offence are applicable insofar as the status of the petiti....
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....ny rash act or; iii. That such death was caused by the accused doing any negligent act and; iv. Such a death did not amount to culpable homicide. 19. In order to establish negligence under criminal law, the following grounds have to be established by the prosecution as per the law laid down by the Hon'ble Supreme Court in the matter of Malay Kumar Ganguly V/s. Sukumar Mukherjee & others, reported as 2009 (9) SCC 221 i. The existence of Duty; ii. A breach of Duty causing death; iii. A breach of Duty must be characterized as gross negligence. 20. While rashness is acting in the hope that no mischievous consequences will ensue although there is awareness of the likelihood of such consequences, negligence is acting without the awareness that harmful or mischievous consequences will follow but in circumstances which show that had the accused exercised the caution incumbent upon him he would have had the awareness of the consequences of his act. Even the word negligence has not been defined in the Act, however, the idea of the degree of negligence that would make the act criminal can be had if the words and the phrase used in Section....
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.... 29. There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the 'motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death. 30. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including this Court; "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge....
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....ammedali Rangwala v. State of Maharashtra, the accused who had manufactured wet paints without a licence was acquitted of the charge under Section 304A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out of the barrels. In Suleman Rahiman Mulani v. State of Maharashtra the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person. It was held that that by itself was not sufficient to warrant a conviction under Section 304A. It would be different if it can be established as in the case of Bhalchandra v. State of Maharashtra that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of ex....
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....s not in dispute that the said deceased Kewal Singh and Balbir Singh succumbed to the injuries at the spot and that Swaran Singh received grievous and simple injuries at his person while working in the said industry Sidhu Industrial Corporation, though under some technicians / foreman etc.. It is also not in dispute that the said industry was being run under the name and style of Sidhu Industrial Corporation by the main accused Parshotam Singh and the registration certificate of GST Form is now reflecting that the said Sidhu Industrial Corporation is a proprietorship concern of Parshotam Singh (accused). However, the investigation proceedings as culminated by the investigation agency are reflecting that the said industry was being run by said Parshotam Singh along with his sons Dhanpreet Singh and Dilpreet Singh. The said industry may not be proprietorship concern of the said Parshotam Singh, but the report of investigation agency as culminated under section 173 Cr.P.C. is reflecting that he was assisted by his sons also i.e. Dhanpreet Singh and Dilpreet Singh to run that industry. Moreover, the investigation agency has also concluded that the machines of that industry, which prove....
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....e a reference to any material or documentary evidence that would reflect that the industrial activity in the establishment was supervised or controlled by the petitioners. The responsibility of a person has to be real and actual and not by an inference. A person cannot be held responsible for affairs of a company merely because he/she happens to be in close relations or proximity or family of the owner. To attract a penal offence of being rash or negligent, it must necessarily require that the person being in-charge of the offence was expected to adhere to a standard of caution. If there is no statutory obligation or requirement fastened with an accused to comply with the standard of caution, such person cannot be prosecuted for default thereof. The proximity of a person to the principal accused being member of the family and by carrying similar operations through no independent establishment would not render them liable for the lapses/offences that may stand committed in the factory premises of their father. 28. The submission of the State that the role and responsibility of the petitioners is to be seen at the stage of trial despite absence of any material to show their respon....
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....at ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi's case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. 29. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted." 29. The Hon....
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....bove, it also has to be established by the prosecution that the person being charged of commission of the offence was the actual person responsible to exercise that mandatory application of due care and caution and that the incident in question had taken place on account of the failure on the part of such person to implement care. There can be no presumption in law that merely because the petitioners happen to be sons of the owner of the sole proprietorship, hence they were also incharge of the operations of the sole proprietorship firm. Being aware of the operations of a firm does not make them responsible and accountable for the affairs of the said firm. They can not ordinarily be called upon to undergo rigors of protracted criminal trial only on the strength of their awareness and despite absence of any evidence to establish their responsibility. CONCLUSION: 33. In view of the circumstances noticed above and in light of the precedent judgments of the Hon'ble Supreme Court, it is apparent that the Revisional Court has failed to appreciate the submissions advanced by the petitioners and has chosen to not address the admissibility of the evidence available along with the ....