IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.3065 OF 2017 BETWEEN:
1. Sri Balram Singh Yadav, (Major) Managing Director M/s Godrej Tyson Foods Limited, Sy.No.77/1, 83/1 & 84/1, Jangamanakote Road, Doddahullur Village, Hosakote, Bangalore (R) PIN- 562114.
2. Sri.A.Girish, (Major), Factory Manager, Sy.No.77/1, 83/2 & 84/1, Jangamanakote Road, Doddahullur Village, Hosakote, Bangalore Rural District – 562 114. ... PETITIONERS (By Sri.K.Kasthuri, Sr. Counsel a/w Sri.Pradeep Kumar.J., Adv.) AND:
State of Karnataka at the instance of M.A.Somashekara Assistant Director of Factories, (An Inspector appointed under Section 8(1) of the Factories Act, 1948), Bangalore Division – 13, Karmika Bhavana, 2nd Floor, Diary Circle, Bannerugatta Road, Bangalore-560029. ….RESPONDENT (By Sri.S.Rachaiah, HCGP) This Criminal Petition is filed under Section 482 Cr.P.C. praying to quash the complaint on the file of Civil Judge and JMFC., Hosakote, Bangalore Rural in C.C.No.685/2011 vide Annexure-C and the order dated 31.8.2016 at Annexure –A.
This Criminal Petition coming on for admission this day, the Court made the following:
O R D E R Heard Sri.K.Kasthuri, learned senior counsel appearing on behalf of Pradeep Kumar, J., for the petitioners and Sri. S.Rachaiah, HCGP for state.
2. For the offence punishable under Section 33(2) of the Factories Act, 1948, a complaint came to be presented by the respondent against petitioners. Issuance of process was challenged by the petitioner in Crl.P.No.1909/2012. This Court by order dated 27.1.2015 accepted the contention raised in the petition and by allowing the petition remitted the matter back to the learned Magistrate for reconsideration from the stage of presentation of the complaint, by observing that learned Magistrate has not considered the averments made in the complaint with reference to Section 33(2) of the Factories Act, 1948.
3. The grievance of the learned senior counsel appearing for petitioners is that on such order of remand passed, learned Magistrate has not examined the complaint in the light of direction issued by this Court and has mechanically issued process and as such proceedings initiated against petitioners is liable to be quashed.
4. Though learned High Court Government Pleader would support the proceedings now pending before the learned Magistrate, this Court is not inclined to accept the same for the simple reason that on order of remand being passed by this Court, it was incumbent on the learned Magistrate to examine the complaint with reference to Section 33(2) of the Factories Act, 1948 namely, to find out as to whether the offence alleged is made out against the petitioners or whether there constituted an offence under Section 33(2) of the Factories Act, inasmuch as, issuance of process to an accused to appear is a serious issue. As such, application of mind by the learned Magistrate is sine qua non for issuing process. Same is not forthcoming from the impugned order dated 27.1.2015. Hence, same cannot be sustained.
For the reason afore-stated, I proceed to pass following:
ORDER (i) Criminal Petition is allowed.
(ii) Order dated 31.08.2016 issuing NBW to the petitioner is hereby quashed.
(iii) Matter is remitted to the learned Magistrate for reconsideration, in the light of the observation made in the order dated 27.1.2015 passed in Crl.P.No.1909/2012 and to proceed to pass orders in accordance with law.
SD/- JUDGE bkp