Kanhaiya Lal Bansal vs The State of Jharkhand and Inspector of Factories

Prashant Kumar, J.—This application is for quashing the order dated 20.07.2005 passed by learned Judicial Magistrate, 1st Class Dhanbad in F.A. No.249 of 2001, whereby he dismissed the application of Petitioner for discharge.

It is submitted on behalf of Petitioner that Petitioner was earlier Director of M/S OM Shri Durga Hard Coke M.F.G. Co.(P) Ltd. However, he resigned from the post of Director on 1st of July 1990 i.e. before filing of present complaint petition. Thus, he cannot be treated as occupier of the Factory, hence offence u/s 92 of the Factories Act is not made out. Thus, he is entitled to be discharged from the charges levelled against him.

It appears that earlier Petitioner filed Cr. M.P. No.800 of 2003 against the order of cognizance dated 24.02.2001 and took same defence. In that case, this Court observed that "Other evidence cannot be taken into consideration by this Court at this stage to come to a conclusion that at present the Petitioner is not the occupier of the factory".However, this Court further observed that Petitioner may raise said point at the time of framing of charge. It appears that against the said order, Petitioner moved to Hon''ble Supreme Court by filing Special Leave to Appeal (Crl.) No.61486149/ 2004). From perusal of Annexure 12, it appears that Hon''ble Supreme Court has not interfered with aforesaid order. Thereafter, Petitioner filed an application for discharge in the court below on the ground that he has already resigned from the post of Director of Company (M/S OM Shri Durga Hard Coke M.F.G. Co.(P) Ltd.).

It appears that learned court below after considering the materials come to conclusion that though several opportunities given to Petitioner, he never informed complainant, who is Inspector of Factories, that he resigned from the post of Director of Company in question. It is well settled that discharge petition is required to be disposed of on the basis of materials produced by prosecution party and at that time, court is not required to see the defence of accused. Since, there is nothing in complaint petition as well as evidences adduced in support of complaint petition that Petitioner had already resigned from the post of Director of Company prior to lodging of complaint petition, I find that aforesaid defence of accused cannot be looked at the time of framing of charge.

Learned court below after considering materials available on record come to the conclusion that prima facie offence against the accused is made out. Thus, I find no reason to interfere with the said order.

Accordingly, this application is dismissed and order of learned court below is hereby affirmed.