The petitioner is a public limited company and it is engaged in the business of manufacturing and trading in rice brand oil, for which purpose, it has a manufacturing facility in Valayapatti Village, Namakkal, where it runs a factory in a 11 acre premises.
2. The petitioner's factory commenced its activity in 2007 and according to the petitioner, it has complied with all the necessary formalities of obtaining license/ permission/ sanction from all concerned authorities and has provided copies of the same in its typed set of papers. While so, on 06.05.2009, in its godown, which is a separate building in itself, there was a fire accident that led to the death of 17 workers working there at the relevant time. Promptly, criminal cases were registered concerning this accident against the petitioner. The forensic experts, who had investigated and provided their report dated 15.05.2009, had ruled out human interference as the cause of fire but suspected that it might be an electrical spark that might have triggered the fire when aerosol mixture came into contact with it.
3. It is in this backdrop, the District Collector, Namakkal, in his capacity as the Executive Magistrate has passed an order under
Section 142 Cr.P.C., directing the closure of the factory of the petitioner. This is being challenged in this petition. It may be stated here that the petitioner obtained an order of stay of further proceedings in this case, which enabled it to continue to run the factory in question.
4. The learned counsel for the petitioner contended that any order to be passed under
Section 142 Cr.P.C., must necessarily be preceded by an interim conditional order under
Section 133 Cr.P.C. and thereafter, to issue notice to show cause as to why the factory should not be permanently closed, and the District Magistrate should do this based on the evidence as to the opinion that he receives from any sources. The specific mode for service of notice, as submitted by the learned counsel, is provided under
Section 134 Cr.P.C.. His fundamental objection to the impugned order is that the District Magistrate, in the instant case, has ignored to follow the procedures contemplated under
Section 133 Cr.P.C., and has passed the final order directing the closure of the factory without giving any opportunity of being heard to the petitioner in the matter. Further, except his laying emphasis on the opinion he has received and his belief that it would be hazardous or dangerous to the public to let this factory run, he has not appeared to have relied on any evidentiary material to come to the conclusion that he had arrived at. He submitted that the impugned order does not even refer to forensic expert's opinion as to the cause of the accident. He added except that solitary and very unfortunate accident that took place on 06.05.2009, the factory is running without any untoward event, nor posed any danger to any.
5. Per contra, Mr.B.Ramesh Babu, the learned Government Advocate appearing for the respondent submitted that the petitioner had run the factory without following any of the norms to be adhered to for securing the safety of those who might be affected by any accident. This precisely is the circumstance in which the respondent was considered to have passed an order such as the one he had passed.
6. Heard both sides.
7. It is not so much about the authority of power of the District Collector/District Magistrate to pass an order under
Section 142 Cr.P.C., but it is more about the manner in which the said authority should be exercised. The power under
Section 142 Cr.P.C., in one sense acts as an external power that directly interferes with the right of a citizen to pursue his fundamental right to any business or avocation under
Article 19 (1) (g) of Constitution of India. Therefore, it is not just the civil right of the citizen which is involved, but also its fundamental right to business, trade or profession. In circumstances such as this, it is imperative for the District Magistrate to have conducted an enquiry into the matter giving due and effective opportunity to the petitioner to defend the respondent's proposal to close the business for the safety of the public around. The duty to hear the other side is a security against arbitrariness and is an aid in favour of fairness. It is ingrained in the very terminology employed under Sec. 133 Cr.P.C., but unfortunately and perhaps hastily the respondent appears to have jumped the guns and overlooked the procedure and ordered closure of business under Sec.142 Cr.P.C. In this context, it is pertinent to state that the learned counsel for the petitioner submitted that after service of the impugned order, a notice as contemplated under
Section 133 Cr.P.C., was affixed on the factory premises, but this precisely is not one of the methods provided for service of such notices within the meaning of
Section 134 Cr.P.C. Thus, the impugned order cannot be held to have been legitimately passed for more than one reason. Either it is bad for flouting the conditions under
Section 133 Cr.P.C., or for ignoring the procedure contemplated for service of notice under
Section 134 Cr.P.C., thereby denying the petitioner of an effective opportunity of being heard or a combination of both.
8. In such circumstances, I have no hesitation in holding that the impugned order is bad in law and necessarily the same is to be quashed. Having stated that, it does not preclude the respondent from initiating any appropriate proceedings under
Section 142 Cr.P.C., if any ground exists now. This impugned order is quashed as prayed for. The Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is also closed.
03.03.2017 kmi To The District Magistrate and District Collector, Namakkal.
N.SESHASAYEE, J., kmi Crl.O.P.No.10227 of 2009 03.03.2017