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Judgment
S. Palanivelu, J.—These petitions have been filed by the petitioners to call for records in C.C.No. 104 and 107 of 2007 on the file of the
Chief Judicial Magistrate, Tiruvallur and quash all proceedings initiated by the respondent.
The factual background of the matter is as follows:
a. The petitioners in Crl.O.P.Nos. 25539 and 25540 of 2007 are the Occupier and Managing Director of Carborundum Universal Ltd.
respectively. The factory is situated at Tondiarpet High Road, Chennai.
b. It is stated that on 1.4.2006 at about 7.00 p.m., there was an inferno in the factory premises and portion of packing materials, finished goods,
which were stored in the premises, were gutted. Fire tenders from Manali, Ennore and Tondiarpet were rushed to the factory and pressed into
service for extinguishing fire.
c. The matter was reported by the Manager of the Factory on 2.4.2006 to the respondent in Form No. 18-A. The Inspector of Factories
inspected the factory and gave a report. The Deputy Inspector of factories, Tiruvottiyur issued a notice to the petitioners on 10.4.2006 to show
cause within 7 days from the date of receipt of the letter why they should not be prosecuted for the irregularities noticed on 3.4.2006 at the time of
inspection of the factory.
d. In response to the said inspection report, the petitioners by separate letters dated 15.5.2006 have explained the safety measures which they had
taken as per rules at relevant point of time to put out fire.
e. Not content with the response, the Deputy Chief of Factories forwarded the letter to the Government and the Chief Inspector of Factories
granted sanction directing the Inspector of Factories to prefer complaint against these petitioners u/s 38(1)(b) of the Factories Act before the Chief
Judicial Magistrate, Chenglepet.
f. Pursuant to the above said direction, the Inspector of Factories preferred a private complaint before the above said Court. It was taken
cognizance of by the said Court and notices were issued to these petitioners.
It is the main stay of the respondent herein that the petitioners have not made adequate safety measures as adumbrated in the prescribed rules
and that the safety measures provided in the factory at the relevant point of time were inadequate. As the fire could not be put out by the
equipments and persons available with them, the petitioners sought the help of fire extinguishing tenders from outside.
Per contra, it is the contention of the petitioners that as an abundant caution fire extinguishers from outside were called for and before they
reached the occurrence place, the petitioners employed specially trained people for this purpose to put out the pyre with the already available
equipments and therefore, no default could be attributed to these petitioners.
In the backdrop of the contentions aforementioned, the allegations as to events have to be appreciated in the light of statutory provisions.
Section 38 of the Factories Act, 1948, provides as follows:
Precautions in case of fire - (1) In every factory, all practicable measures shall be taken to prevent outbreak of fire and its spread, both
internally and externally, and to provide and maintain -
(a) safe means of escape for all persons in the event of fire, and
(b) the necessary equipment and facilities for extinguishing fire.
(2) Effective measures shall be taken to ensure that in every factory all the workers are familiar with the means of escape in case of fire and have
been adequately trained in the routine to the followed in such cases.
(3) The State Government may make rules, in respect of any factory or class or description of factories, requiring the measures to be adopted to
give effect to the provisions of Sub-sections (1) and (2).
(4) Notwithstanding anything contained in Clause (a) of Sub-section (1) or Sub-section (2), if the Chief Inspector, having regard to the nature of
the work carried on in any factory, the construction of such factory, special risk to life or safety, or any other circumstances, is of the opinion that
the measures provided in the factory, whether as prescribed or not, for the purposes of Clause (a) of Sub-section (1) or Sub-section (2), are
inadequate, he may, by order in writing, require that such additional measures as he may consider reasonable and necessary, be provided in the
factory before such date as is specified in the order.
Under Rule 61 of the Tamil Nadu Factories Rules, 1950, deals with fire protection, provides for Processes, equipment, plant, etc., involving
serious explosion and serious fire hazards and various measures to be taken by the management of the factory to keep the fire accident away. Sub-
rules 1 to 14 to Rule 61 also enumerates various measures required to be taken by the factory management in the event of fire accident.
In Rule 61 under various heads several protection measures have been provided which are to be followed by the factory management. They are
succinctly as follows:
Rule 61. Fire Protection: (1) Processes, equipment, plant, etc., involving serious explosion and serious fire hazards:
(2) Access for fire fighting
(3) Protection against lighting:
(4) Precautions against ignition
(5) Spontaneous ignition
(6) Cylinders containing compressed gas
(7) Storage of flammable liquids
(8) Accumulation of flammable dust, gas, fume or vapour in air or flammable material on the floors
(9) Fire exists
(10) First-aid fire-fighting arrangements
(11) Other fire-fighting arrangements
(12) Personnel in-charge of equipment and for fire fighting fire drills etc.
Rule 61 has been annexed with two Schedules. In the First Schedule, Classes of fire and Suitable type of Appliances are mentioned. While the
First Schedule provides for different types of fires and first-aid fire-fighting equipments, in the Second Schedule different kinds of equipment to be
provided with Trailer Pump, namely, for light trailer pump of a capacity of 680 litres/minute and for large trailer pump of capacity of 1800
litres/minute, are mentioned.
In Schedule I, under the caption of First-Aid Fire Fighting Equipments, Class of fire and Suitable type of Appliances are mentioned, which are
as follows:
SCHEDULE I
FIRST-AID FIRE FIGHTING EQUIPMENTS
The different type of fires and first-aid fire-fighting equipments suitable for use on them are as under:
Class of fire Suitable type of Appliances
A. Fires in ordinary combustibles (wood, Chemical Extinguishers of Soda-acid
vegetable fibres, paper and the like). Gas/expelled Water and anti-freeze
types and water buckets.
B. Fires inflammable liquids, paints, grease,Chemical Extinguishers of foam,
solvents and the like Carbon-di-oxide and dry powder
types and sand buckets.
C. Fires in gaseous substances under Chemical extinguishers of Carbon-di-
pressure. oxide and dry power types.
D. Fires in Reactive Chemicals active Special type of dry powder
metals and the like extinguishers and the buckets.
E. Fires in electrical equipments Chemical extinguishers of Carbon-di-
oxide and dry powder type and sand
buckets.
Acceptable replacements for water buckets and water type extinguishers in occupancies where Class B fires are anticipated, are as under:
Acceptable Buckets of water Water type
replacements For one bucketFor three extinguishers for each
buckets 9 litres (or 2 gallons)
Extinguishers.
(1) (2) (3) (4)
Dry sand 1 bucket 3 buckets
Carbon di-oxide 3Kg. (or 7 lbs.)9Kg.(or 20 9 Kg.(or 20 lbs)
Extinguishers lbs)
(in not less than
2
Extinguishers)
Dry powder 2Kg.(or 5 lbs.) 5Kg.(or 11 5 Kg.(or 11 lbs.)
Extinguisher lbs) (In one or
more
extinguishers)
Foam Extinguishers 9 litres (or 2 9 litres (or 2 9 litres (or 2 gallons).
gallons) gallons)
It is to be noted that in the fire accident nobody sustained any bodily injury. It is also stated that there was no loss of production due to the
accident.
In response to the letter issued by the Deputy Chief Inspector of Factories, the following points were furnished to show that the precautionary
measure had been made in the factory to meet such contingencies.
Fire fighting appliances available as per TAG (Tariff Advisory Committee) norms.
-17 fire hydrants spread over across the factory premises which have been marked for each identification in case of emergency.
-30 nos of fire hoses measuring each 15 meters placed in various location in hose box with branch pipes.
- All fire fighting systems are under Annual maintenance contract (AMC) with reputed concern which is following ISI standards and refilling is also
being done periodically.
- Regular fire drill to all security guards on every Saturday is being conducted.
- Other than security personnel 100 workmen have been fulltrained in fire fighting.
- Periodic emergency preparedness drill (mock drill) as per ISO 14001 norm is being conducted-photographs are enclosed for your kind perusal.
- Statutory fire licence from Tamilnadu fire and Rescue Services is being obtained.
Hence, it is argued that the requirements, under the provisions of the Factories Act and Rules as well were fulfilled by the factory management.
It is the bottom line contention of the learned Counsel for the petitioners that both the show cause notice and the complaint preferred by the
Inspector of Factories are bereft of material particulars which would implicate these petitioners with the irregularities that could be construed as
offences under the provisions of the Act and Rules.
Per contra, the learned Government Advocate (Crl.side) would argue that the inspection report, show cause notice, and the complaint are in
order and there is nothing to reject them as baseless.
First of all, the inspection report of the Inspector of Factories has to be considered. There are as many as 24 columns in the report. It appears
to be maintained as format in which most of the columns are left blank. If one reads the said report, which is in the form of format, he cannot find
out the details clearly as to the accident and failure on the part of the factory management to provide adequate measures.
Nextly, the communications emanated from the Inspector of Factories and the Deputy Chief Inspector of Factories do not disclose any
specific default or failure on the part of the management.
The sanction order, which was passed by the Chief Inspector of Factories dated 23.6.2006, does not contain any specific offence as
adumbrated in the Act and with regard to the failure on the part of these petitioners. However, sanction was accorded for prosecuting them u/s
38(1)(b) of the Act.
So also the complaint before the Chief Judicial Magistrate, Chenglepet. In the said complaint, it has been mentioned that fire hydrant was also
put into action. Because of inadequate necessary equipments and facilities for extinguishing fire, outside fire tenders also were informed for
assistance. Fire tenders from Manali, Ennore and Tondiarpet arrived at 7.45 P.M., and the fire was completely extinguished at 8.45 P.M. The
complaint reads as follows:
In addition to this, fire has caused damage to the roof also. Fire hydrant was also put in action. Because of inadequate necessary equipment and
facilities for extinguishing fire, outside fire tenders also were informed for assistance. Manali, Ennore and Tondiarpet Fire Tenders arrived at 7.45
P.M. And the fire was completely extinguished at 8.4.5 P.M.
Hence all practical measures have not been taken to prevent out break of fire and spread and adequate necessary equipment and facilities for
extinguishing fire have not been provided and maintained in the factory.
The above said allegations do not make out a ground for prosecuting the petitioners. The complaint is significantly silent on the specific steps or
measures required to be taken by the management in accordance with the legislation.
In this context, the learned Counsel for the petitioners draws the attention of this Court to the decisions of the Hon''ble Supreme Court,
wherein it is held that the High Court may exercise exclusive power u/s 482 Cr.P.C.
In the decision of the Hon''ble Apex Court in Netai Dutta v. State of W.B. 2005 SCC (CRI) 543, it has been held as follows:
Apart from the suicide note, there is no allegation made by the complainant that the appellant herein in any way was harassing his brother,
Pranab Kumar Nag. The case registered against the appellant is without any factual foundation. The contents of the alleged suicide note do not in
any way make out the offence against the appellant. The prosecution initiated against the appellant would only result in sheer harassment to the
appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the first information report against the
appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. We find that this
is a fit case where the extraordinary power u/s 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings
initiated against the appellant and accordingly allow the appeal.
In Harischandra Prasad Mani and Ors. v. State of Jharkand and Anr. AIR 2007 SCW 1077, the Hon''ble Supreme Court has observed in
para 14 of its order as follows:
In the present case, there is not even an iota of material indicating the guilt of the accused persons. It is true that at the stage of taking
cognizance adequacy of evidence will not be seen by the Court, but there has to be at least some material implicating the accused, and cognizance
cannot be taken merely on the basis of suspicion as it appears to have been done in the present case. To take a contrary view would only lead to
harassment of people.
Guided by the principles laid down in the above said decisions, here it is to be held that there is no sufficient indictment alleging that the
petitioners have violated the provisions of the Act and Rules.
In the absence of sufficient allegations in the complaint, the learned Chief Judicial Magistrate should not have taken cognizance of the complaint
and taken it on his file. It is well settled that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused.
In this case, from the very inception the material particulars are absent, which could only implicate the petitioners. Either in all the
communications, which were flowing from the respondent or especially in the complaint there is no specific indictment and therefore, taking
cognizance of the offences against these petitioners on the basis of the complaint is totally unsustainable in law.
Another telling circumstance is regarding periodical inspection of fire extinguishing equipments by competent authority. Rule 61(10)(i) provides
for painting of details on the body of each equipment, such as Serial number, Date of last refilling and Date of last inspection. The authorities are
tightlipped as to the inspection of equipments. Firstly, during inspection, they should have pointed out inadequacy of safety measures; nextly in case
of inadequacy, they should have called upon the petitioners to comply with requirements contained in Tamil Nadu Factory Rules. But none of the
above was done by the respondent.
For the foregoing reasons, the irresistible conclusion that could be reached by this Court is that taking cognizance of the complaint is not
proper and hence, all the proceedings in C.C.No. 104 and 107 of 2007 on the file of the Chief Judicial Magistrate, Tiruvallur are liable to be
quashed. Accordingly, they are quashed.
The petitions are allowed. Connected M.Ps. are closed.