Niraj Agarwal vs State Of Orissa

S.S. Mishra, J.

The present Criminal Revision filed under Sections 401 & 397 of Cr.P.C. is directed against the judgment and order dated 17.03.2011 passed by the learned Additional Sessions Judge, Rourkela in Criminal Appeal No.18 of 2009, whereby upholding the conviction and sentence order passed by the learned J.M.F.C., Panposh, reduced the sentence to one month simple imprisonment and to pay fine of Rs.10,000/-, in default, to further undergo simple imprisonment for 10 days.

The petitioner was subjected to prosecution in 2(C).C.C. No.211 of 2007 under Section 92 of the Factories Act, 1948 (hereinafter, “the Act”) for violation of Rule 62B of the Factories Rule, 1997 (hereinafter, “the Rule) made under Section 41 of the Act and Rule 97(1) made under Section 88 of the Act for not providing safe working place to the workers and not informing the Inspector of Factories about the incident within the stipulated period.

The petitioner was subjected to the trial on the allegation that the petitioner is the occupier and running business in the name and style of M/s. Rajashreee Alloys Steels at Beldihi. The factory run by the occupier procures mild steel ingots from outside and uses the same as raw materials for manufacturing mild steels angles, channel rods, etc. The petitioner/occupier had hired a dumper for transportation of raw materials.

On 9.3.2007 at about 1.50 P.M., the victim Salen Bage and Amal Jana were on duty at the main gate of the factory when the dumper driven by one Silvester Dung Dung loaded with the materials attempted to enter into the factory premises,it appears that the dumper break failed and the driver lost the control. The dumper bazzed into the gate collided with the factory main gate as a result of which Salen Bage got seriously injured. He was taken to the hospital. However, he succumbed to the injuries. The said incident was not informed to the local authorities under the Act. It was only on 20.03.2007, the Assistant Director of Factories and Boiler, Rourkela could know from different sources and inquire about the incident. Therefore, the prosecution was launched against the petitioner being the occupier on the two count namely non providing of safe work place to the worker and non furnishing of the information regarding the incident.

In defence, the petitioner has raised three issues. Firstly, the victim being a guard, hired through a security agency namely M/s.Ajay Security Services is not a worker as defined under Section 2(I) of the Act. Secondly, the petitioner is directly not responsible for the alleged incident. This has happened only due to mechanical failure of the vehicle. Thirdly, the petitioner contended that since he assumed that the victim is not a worker, he did not inform the authorities.

The learned trial Court analyzed the entire evidence on record and recorded the conviction against the petitioner finding the petitioner guilty for violation of Rule 62D of the Rules under Section 41 of the Act made under Section 88 of the Act. Accordingly, awarded the punishment to undergo S.I. for one year and to pay a fine of Rs.10,000/- under Section 92 of the Act, in default, to further undergo for one month simple imprisonment was also awarded. The judgment of conviction and sentence dated 12.02.2009 passed by the learned J.M.F.C., Panposh, was called in question by filing Criminal Appeal No.18 of 2009 before the Court of learned Additional Sessions Judge, Rourkela by the petitioner.

The learned appellate Court vide its order dated 17.03.2011 has rejected the appeal inter alia stating as under:

“8. The 2nd allegation against the accused is that he has failed to inform this fact to the authority. The accused has admitted this aspect in his statement under section 313 Cr.P.C. statute of mandates such information and the learned counsel for the accused at the time of argument has fairly conceaded that there was no such information to the authority. So there are good materials against the accused to convict him under section 92 of the Factories Act for violation of 62(B) and Rule 97(I) of the Rules and consequent to such violation, he is to be convicted under section 92 of the Factories Act.

So, the learned Magistrate has rightly convicted him thereunder.”

The learned appellate Court has taken into consideration the defence of the petitioner’s bona fide assumption that the victim was not a worker and refused to believe the same. On the basis of the statement under Section 313 of Cr.P.C made by the petitioner, upheld the conviction recorded by the court below. However, modified the sentence awarded by the Court below. The sentence has been reduced to one month simple imprisonment and to pay a fine of RS.10,000/-, in default, to further undergo simple imprisonment for ten days.

The petitioner has challenged the judgment/order of conviction and sentence in the present Revision Petition.

The Revision petition is against concurrent finding of two Courts below on facts. It is an admitted fact that the incident date, i.e., 9.3.2007 was not informed to the competent authority under the Act till 20.03.2007 and also it is a fact that the occupier has not taken enough steps to provide safe working place to the workers under the Act. Since the offence is hinges upon the only fact that the petitioner has not informed the incident within the stipulated period, prosecution evidence needs to be evaluated in the light of fact that the petitioner presumed that the victim was not a worker as he was hired from a service provider. Vide the impugned order, the Courts below have returned the finding that the victim was a worker. Therefore, the delay in informing the incident on the part of the petitioner may be due to a bona fide believe that the victim was not a worker.

Be that as it may, the evidence adduced by the prosecution unimpeccable against the petitioner. Therefore, this Court is not inclined to interfere in the impugned order of conviction recorded against the petitioner. Hence, the order of conviction for the offences as mentioned above is maintained. However, taking into consideration the peculiar facts and circumstances of the case and the fact that incident had taken place more than 16 years back, the sentence awarded deserves to be modified. Hence instead of awarding imprisonment for one month, fine of Rs.10,000/-already awarded the same is modified to extent that the petitioner shall pay fine of Rs.25,000/- (Rupees Twenty Five Thousand) and in default, the petitioner is liable to undergo simple imprisonment for one month. The fine amount to be deposited by the petitioner shall be disbursed to the L.Rs. of victim Salen Bage as per provision of Section 357 of the Cr.P.C.

With the aforementioned modification of sentence, the Revision is partly allowed.

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