IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.7666/2018 C/w CRIMINAL PETITION No.9374/2016 IN CRIMINAL PETITION No.7666/2018: BETWEEN:
1. SRI. JOSEPH ZACHARIAH DIRECTOR MARKETING, S/O. SRI. K U SEQUERIA, AGED ABOUT 58 YEARS, R/AT NO. 108, SHANTI LAYOUT, SHETTIHALLI, JALAHALLI WEST, BENGLAURLU-560058.
2. SRI. ABRAHAM CHACKO S/O. SRI. K N CHACKO, GENERAL MANAGER - HUMAN RESOURCES, AGED ABOUT 56 YEARS, NO. 302, METROPLOE APARTMENT, NO. 48, 1ST CROSS, NEW BAIYAPPANAHALLI, BENGLAURU 560038.
3. SRI. BINCE JOSE SENIOR MANAGER PRODUCTION, S/O. SRI. P K JOSEPH, AGED ABOUT 48 YEARS, R/AT NO. 484, 1ST CROSS, 8TH BLOCK, KORAMANAGALA, BENGALURU 560085.
4. SRI. JAIGE ALIAS S/O M.A.ALIAS, AGED ABOUT 54 YEARS ASSISTANT PLANT ENGINEERING, PRESENTLY R/AT THUMBAYIL HOUSE, THRIKOTHAMANGALAM, KOTTAYAM 686011.
EARLIER R/O NO.8, CHIKKABECHIIKALLU, BANGALORE-73 ….. PETITIONERS (BY SHRI. PRABHAKAR RAO K, ADVOCATE) AND:
1. SRI.H.N.DEVARAJU, DISTRICT FIRE OFFICER, PEENYA FIRE OFFICE, BENGALURU-560058.
2. THE STATE BY THE POLICE INSPECTOR, RAJAGOPALANAGARA POLICE STATION, BENGALURU-560058, BY SPP, HIGH COURT BUILDING. ….. RESPONDENTS (BY SHRI. S.CHANDRASHEKARAIAH, HCGP FOR R2 NOTICE TO R1 SERVED) THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.36781/2011 PENDING BEFORE THE VII ACMM, BANGALORE, WHICH IS AT ANNEXURE-A.
IN CRIMINAL PETITION No.9374/2016:
BETWEEN SRI VIJOO ZACHARIAH AGED ABOUT 54 YEARS, S/O SRI.SCARIA K.U. DIRECTOR M/S. ELASTREX POLYMERS PVT LTD (SHOE DIVISION) NO.397/398, 11TH CROSS, 3RD MAIN ROAD, 4TH PHASE, PEENYA INDUSTRIAL AREA, BENGALURU-560 058. ... PETITIONER (BY SRI. PRABHAKAR RAO K ADVOCATE) AND 1. THE DIRECTOR OF FACTORIES, BOILERS INDUSTRIAL SAFETY & HEALTH, “KARMIKA BHAVANA”, 2ND FLOOR, BANNERUGHATTA ROAD, BENGALURU-560 029.
2. THE ASSISTANT DIRECTOR OF FACTORIES DIVISION-10 “KARMIKA BHAVANA”, 2ND FLOOR, BANNERUGHATTA ROAD, BENGALURU-560 029. … RESPONDENTS (BY SHRI. S.CHANDRASHEKARAIAH, HCGP FOR RESPONDENTS) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE COMPLAINT VIDE ANNEXURE-D AND ALSO THE ENTIRE PROCEEDINGS ON THE FILE OF VII ACMM, BANGALORE IN C.C.NO.37374/2011.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri. Prabhakar Rao K, learned Advocate for the petitioners and Shri. S. Chandrashekaraiah, learned HCGP for the State.
2. On 30.09.2011, there was a fire accident in the factory belonging to M/s. Elastrex Poymers (P) Ltd. After investigation, the District Fire Officer, Bengaluru registered FIR No.434/2011 against petitioners for offence punishable under Section 285 of IPC. Subsequently, on 16.12.2011, the Assistant Director of Factories filed a private complaint under the Factories Act, 1948 (‘Act’, for short) in C.C.No.37374/2011 before the 7th Additional Chief Metropolitan Magistrate at Bengaluru against two persons i.e., occupier of petitioner’s factory viz., Shri.Vijoo Zachariah and the Manager of the Company Shri.Manoj P Bastian.
3. Shri. Vijoo Zachariah, has challenged charge sheet filed in C.C.No.37374/2011 in Crl.P.No.9374/2016. Four out of five accused have challenged charge sheet filed in C.C.No.36781/2011 in Crl.P.No.7666/2018.
4. Shri. Prabhakar Rao made following submissions:
that the private complaint is filed by Assistant Director of Factories in C.C.No.37374/2011 is not maintainable inasmuch as the Company has not been arrayed as an accused which is contrary to law laid down by the Supreme Court of India in Aneeta Hada Vs. Godfather Travels and Tours (P) Ltd.1 that C.C.No.36781/2011 is not maintainable inasmuch as the State through the Assistant Director of Factories have initiated proceedings against the occupier and manager of the factory. Therefore, prosecution initiated pursuant to complaint lodged by the District Fire Officer is not maintainable because accused would be exposed to double jeopardy.
1 (2012)5 SCC 661 that even in the FIR registered by the District Fire Officer, the company is not arrayed as accused.
5. He placed reliance upon decision of this Court in Crl.P.No.201009/2014 dated 21.04.2016 in the case of M.Zakir Ahmed Vs. State of Karnataka.
6. The facts mentioned herein above are not disputed by the learned HCGP.
7. I have carefully considered the submissions of learned advocate for the petitioners and learned HCGP and perused the material papers on record.
8. Admittedly, State have initiated action by filing complaint through the Assistant Director of Factories in C.C.No.37374/2011 by filing a private complaint. Admittedly, the Company has not been made as a party in the said private complaint. Learned advocate for the petitioners is right in his submission that the private complaint is contrary to the law laid down by the Supreme Court of India in Aneeta Hada. This Court in Criminal Petitions No.2869/2018, 2870/2018 and 2871/2018, has quashed the proceedings by following the authority in Aneeta Hada by granting liberty to the complainant to file a fresh complaint after curing the defects in accordance with law.
10. The State having initiated the proceedings to prosecute the accused for the offence punishable under Section 92 of the Factories Act cannot maintain parallel proceedings pursuant to FIR No.434/2011 as it amounts to prosecuting accused for the same offence more than once.
11. In the circumstances, these petitions merit consideration. Hence, the following:
ORDER (i) Petitions are allowed.
(ii) Proceedings in C.C.No.36781/2011 in Crl.P.No.7666/2018 and C.C.No.37374/2011 in Crl.P.No.9374/2016 pending on the file of 7th Additional Chief Metropolitan Magistrate, Bengaluru are quashed so far as the petitioners in respective cases are concerned with liberty to the complainant to file fresh complaint after curing the defects in accordance with law.
No costs.
JS/-
Sd/- JUDGE