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Section 319 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
The Factories Act, 1948
The Prevention of Corruption Act, 1988
Section 105 in The Code Of Criminal Procedure, 1973

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Madras High Court
K.Murugasamy vs The Inspector Of Factories on 19 August, 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.08.2010

CORAM

THE HON'BLE MR.JUSTICE T.SUDANTHIRAM

CRL.R.C.No.320 of 2010

K.Murugasamy .. Petitioner/Accused

Vs.

1. The Inspector of Factories,

Villupuram, Villupuram District.

2. B.Palaniappan, Manager,

Chengalvarayan Co-op. Sugar Mills,

Periyasevalai, Ulundurpet Taluk,

Villupuram. .. Respondents

Prayer:- Revision Petition filed under Section 397 r/w. 401 of Cr.P.C., against the order dated 09.07.2007 passed in C.M.P.No.832 of 2007 in C.C.No.1 of 2006 by the learned Chief Judicial Magistrate, Villupuram. For Petitioner : Mr.S.Vadivelu

For R-1 : Mr.A.Saravanan,

Govt. Advocate (Crl.Side)

For R-2 : No Appearance

- - - - -

ORDER

This revision has been filed by the petitioner challenging the order passed by the learned Chief Judicial Magistrate, Villupuram in C.M.P.No.832 of 2007 adding the petitioner as an accused under Section 319 of Cr.P.C. in C.C.No.1 of 2006.

2. The Inspector of Factories, Villupuram, had filed a complaint against the accused Palaniappan, who was the Manager of the Chengalvarayan Co-op. Sugar Mills, for an alleged offence punishable under Section 92 of the Factories Act, 1948. There was a fatal accident on 16.03.2005 in the sugar factory and a worker by name Ravi Rajan died. The Deputy Chief Inspector of Factories, had inspected the factory on 18.03.2005 and issued show cause notice to the accused Palaniappan and also to the petitioner herein. On receiving explanation, the Deputy Chief Inspector of Factories, had accorded sanction to file a complaint against the accused Palaniappan. Then, the Inspector of Factories, Villupuram, had filed a complaint only against the accused Palaniappan. In the trial Court on 27.11.2006, Mr.Sambandam, the Deputy Chief Inspector of Factories, was examined as P.W.1. On 12.03.2007, again he was recalled and examined. On 21.03.2007, the Assistant Public Prosecutor, Villupuram, had filed a memo under Section 319 of Cr.P.C. for adding the petitioner herein as an accused. On 09.07.2007, the learned Chief Judicial Magistrate, Villupuram, had passed an order allowing the application filed by the prosecution and ordered to issue summons to the petitioner herein.

3. Mr.S.Vadivelu, learned counsel appearing for the revision petitioner submitted that under Section 105(1) of the Factories Act (hereinafter referred to as the Act), sanction was accorded only to the accused Palaniappan, who was the Manager of the Factory and as such, without any sanction being accorded to prosecute the petitioner herein, the Court has got no competence to include the revision petitioner herein as an accused under Section 319 of Cr.P.C. The learned counsel for the petitioner also relied on a decision of the Hon'ble Supreme Court reported in 2006 (2) L.W. (Crl.) 497 (Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh and another). The learned counsel for the petitioner further submitted that even as per the evidence of P.W.1, the revision petitioner cannot be included as an accused and the evidence of P.W.1 has not been completed, since P.W.1 has not been cross examined. The learned counsel further pointed out that by merely filing a memo to implicate the petitioner herein as an accused, the Court is not empowered to invoke the provision under Section 319 of Cr.P.C., and to include the petitioner as an accused no specific reason is mentioned in the order allowing the memo filed by the prosecution. The learned counsel submitted that the power under Section 319 of Cr.P.C. should be exercised only in extraordinary situation.

4. Per contra, the learned Government Advocate (Crl.Side) submitted that the complaint has been filed by the Inspector of Factories and as such, no previous sanction is necessary for the Court to take cognizance as per Section 105 of the Act and the sanction already obtained may be due to abundant caution. The learned Government Advocate further submitted that even if the sanction is to be obtained as per Section 105 of the Act, once the sanction is granted and the Court takes cognizance of the offence under the Act, no further sanction is necessary to include the others as an accused, since cognizance of the offences had already been taken by the Court. It is also submitted that show cause notice was issued both (1) to the accused-Palaniappan, who was the Manager of the Factory and (2) to the revision petitioner, who was the Administrator of the Factory. He being the Administrator of the Factory becomes the occupier of the Factory as per the definition of Section 2(n) of the Act. The learned Government Advocate further submitted that even if the complainant is not including the revision petitioner as an accused while filing the complaint, it is always open to the prosecutor to approach the Court to include any one as an accused, if the evidence is available against him.

5. This Court has considered the submissions made by both parties and also perused the materials available on record.

6. Originally, the complaint was filed by the Inspector of Factories, Villupuram, only against the accused B.Palaniappan, who was the Manager of the Chengalvarayan Co-op. Sugar Mills, though show cause notice was issued for both, the Manager of the Factory as well as to the Administrator of the Factory, who is the revision petitioner herein. After examination of P.W.1, a memo has been filed by the prosecution to include the petitioner as an accused. According to the prosecution, the revision petitioner comes under the category of occupier and for violation of Factory Rules, both the Manager and Occupier are liable.

7. Section 2(n) of the Factories Act reads as follows:-

"(n) "occupier" of a factory means the person who has ultimate control over the affairs of the factory

[Provided that-

(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company, any one of the directors shall be deemed to be the occupier;

(iii) in the case of a factory owned or controlled by the Central Government or any State Government or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier.]"

As per proviso clause-iii, the petitioner herein, who was the Administrator being appointed by the Government comes under the category of occupier.

8. The next question that arises for consideration is though the revision petitioner comes under the category of occupier, whether he could be added as an accused in the case by invoking the provision of Section 319 Cr.P.C. in the absence of sanction to prosecute?.

9. Section 105 of the Factories Act reads as follows:-

"105. Cognizance of offences. (1) No Court shall take cognizance of any offences under this Act except on complaint by, or with the previous sanction in writing of, an Inspector.

(2) No Court below that of a Presidency Magistrate or of a Magistrate of the first class shall try any offence punishable under this Act."

10. A plain reading of Section 105(1) of the Act shows, if an Inspector files the complaint, no previous sanction is necessary wherein if the complaint is filed by any other person, previous sanction is necessary. Even if it is to be held that previous sanction is necessary for the Court to take cognizance of any offence under the Act, as already sanction has been obtained in this case, no further sanction is necessary while proceeding against another accused in the same case.

11. The decision cited by the learned counsel for the revision petitioner reported in 2006 (2) L.W. (Crl.) 497 (Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh and another) is not applicable to the facts and circumstances of the case. It is a case wherein sanction was accorded to one accused under Section 19 of the Prevention of Corruption Act while another person was included as an accused under Section 319 of Cr.P.C. The Hon'ble Supreme Court held that the Court cannot summon another person and proceed against him in exercising the power under Section 319 Cr.P.C., if no sanction is granted by the appropriate authority for prosecution of such a person, who was the Government servant.

12. Section 19 of the Prevention of Corruption Act reads as follows:-

"19. Previous sanction necessary for prosecution.- (1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office.

(2) .....

(3) .....

(4) ....."

13. Under Section 19 of the Prevention of Corruption Act, sanction has to be obtained to prosecute a public servant wherein under the Factories Act, as per Section 105, previous sanction has to be obtained for taking cognizance of the offences under the Act. As per Section 19 of the Prevention of Corruption Act, to prosecute against a public servant sanction is necessary for taking cognizance of the offence as well as to proceed against the person. Only in the said circumstance, the Hon'ble Supreme Court has held that existence of a sanction is sine qua non for taking cognizance of the offence qua that person. Therefore, under Factories Act to proceed against the revision petitioner as per Section 319 of Cr.P.C., no sanction is necessary.

14. It was pointed out by the learned counsel for the petitioner that the learned Magistrate, while passing an order allowing the memo filed by the prosecution under Section 319 Cr.P.C., has not given reasons. Of course, it is always incumbent on the part of the Court to give reasons either for allowing or dismissing the applications. The order must be a speaking order. Instead of remanding this matter back to the learned Magistrate to reconsider the issue, this Court had now gone into details and held that the petitioner is occupier of the Factory and he may be included as an accused.

15. It was pointed out that the evidence of P.W.1 has not been completed. But P.W.1 was examined in chief examination part on 27.11.2006 and the chief examination continued on 12.03.2007 and it has been completed. After completion of the chief examination, P.W.1 was not cross examined. The cross-examination was not deferred by the Court for want of time or for any other reason. Of course, when a case is tried under summons case procedure or summary trial procedure, there is no provision to defer the cross-examination of the witnesses, but it is available in the warrant case procedure and sessions case procedure. Therefore, as P.W.1 was not cross examined by the accused it has to be taken as that the evidence of P.W.1 has been completed. Of course, it is always open to the trial Court to allow any application if filed under Section 311 of Cr.P.C. to cross examine the witness at any stage.

16. For the above said reasons, this Criminal Revision Petition is dismissed.

jrl

To

1. The Chief Judicial Magistrate,

Villupuram.

2. The Inspector of Factories,

Villupuram, Villupuram District.

3. The Public Prosecutor,

High Court,

Madras