IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.2502 OF 2013 BETWEEN:
Mr. Shrinivas G Shirgurkar, Managing Director, Ace Designers Limited, Plot No.-7 & 8 II Phase, Peenya Industrial Area, Bengaluru – 560 058 (Note: The designation of the petitioner is wrongly shown in C.C.18389/2012 as below.
Hence the correct designation is shown) Mr. Shrinivas G Shirgurkar, Occupier and Managing Director, Ace Designers Limited, Plot No.-7 & 8 II Phase, Peenya Industrial Area, Bengaluru – 560 058. …Petitioner (By Sri. K. Kasturi, Senior Advocate a/w Sri. M.V. Charati, Advocate) AND:
State of Karnataka, At the instance of Sri. Narasimha Murthy S.A., Assistant Director of Factories, Bengaluru Division – 10, Karmika Bhavana, 2nd Floor, Bannerghatta Road, Bengaluru – 29.
(an Inspector appointed under Section 8(1) of the Factories Act, 1948). ...Respondent (By Sri. Nasrulla Khan, HCGP) This Criminal Petition is filed u/s 482 of Cr.P.C., praying to quash the entire proceedings initiated by the respondent in C.C.No.18389/2012 pending on the file of the VII A.C.M.M., Bengaluru, for the offences punishable under Section 92 of Factories Act.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned Senior counsel for the petitioner and learned HCGP for respondent.
2. The learned Senior Counsel has urged twofold contentions. Firstly, he contends that the facts on record clearly disclose that the alleged accident has taken place solely on account of the negligence of the employee. This Court has already ruled in the case of D.Kumarswamy (Major) and Another Vs. State of Karnataka reported in 2013 LLR 1259 that when the accident has taken place out of sheer negligence of the worker, prosecution of the employer is not tenable in law. Secondly, he contends that the order of taking cognizance by the learned Magistrate suffers from basic error and infirmities.
3. According to the complainant, the petitioner herein has committed an offence punishable under Section 88 of Factories Act, by not issuing notice of the accident that had taken place within the factory premises. But the records indicate that the petitioner in fact had issued the requisite notice to the authorities. The same has not been considered by the learned Magistrate while taking cognizance of the alleged offence. The order of taking cognizance does not indicate as to the offence for which the learned Magistrate has taken cognizance.
4. On going through the records it is seen that before lodging the complaint, a Show Cause Notice was issued to the petitioner wherein the respondent has specifically averred that the alleged accident has taken place on account of negligence of the employer. In the explanation submitted by the employer, it is stated that during the incident the employee climbed on the stacker and requested his co-worker Mr. Manjunath to operate the stacker. This fact finds corroboration in the statement of the co-worker namely Mr. Manjunath. Therefore, there was absolutely no basis for the respondent to initiate criminal action against the petitioner. With regard to the service of notice, though there is material to show that notice was issued, but there is nothing on record to show that the said notice has been served or acknowledged by the complainant.
5. The learned Magistrate while taking cognizance is required to consider all the aspects of the case and to prima-facie arrive at a satisfaction as to whether cognizance or non-cognizance offence has been made out. The learned Magistrate has not undertaken any of such exercise, instead has mechanically taken cognizance of the alleged offence without even looking into the material on record. Hence, in my view, the order dated 22.08.2012 taking cognizance of the alleged offence and all consequent proceedings taken by the learned Magistrate cannot be sustained.
Accordingly, the petition is allowed. Impugned order dated 22.08.2012 and all consequent proceedings taken in C.C.No.18389/2012 are quashed. Matter is remitted to the learned Magistrate to consider the complaint afresh in the light of the observations made in this order.
Sd/- JUDGE SV