- (1.) Heard Mr. Anoop Kumar Mehta, learned Counsel for the petitioner and Mr. Shekhar Sinha, learned Counsel for the State. In this application, the petitioner has prayed for quashing the entire criminal proceedings in F.A. Case No. 45 of 2005 including the order dated 5.2.2005 whereby and whereunder the learned Chief Judicial Magistrate, Dhanbad has been pleased to take cognizance under section 92 of the Factories Act, 1948. It appears that a written complaint was instituted on 3.2.2005 by the opposite parry No. 2 in his capacity of the Inspector of Factories of Bokaro Circle No. 1, Bokaro in which it is stated that M/s. Madhuban Coal Washery is a registered factory bearing Registration No. 66685/DNB and as per the records available in the office of the opposite party No. 2, the occupier of the factory is one Sri Laxman Jha, Director (Technical) and Sri Ratneshwar Kumar, Project Officer (Washery) is the Manager. It has been alleged that in the night of 3/4.11.2004, an accident took place in the factory in which one workman Ganga Ram Dhibar died. On inspection conducted by the opposite party No. 2, it came to light that the workers were working in an unsafe place resulting in the accident and therefore the occupier and the manager are responsible for not complying with the provisions of the Act and the Rules. Accordingly, the complaint was registered as F.A. No. 45 of 2005.
(2.) Subsequent to the filing of the complaint by the opposite party No. 2, vide order dated 5.2.2005, the learned Chief Judicial Magistrate, Dhanbad was pleased to take cognizance for the offence punishable under section 92 of the Factories Act, 1948.
(3.) It has been submitted by the learned Counsel for the petitioner that admittedly the accident took place on 3.11.2004 and the petitioner took charge as Director (Technical) Operations with effect from 5.11.2004. He thus, submits that although the petitioner has been shown as occupier in the complaint petition, but admittedly on the date of the accident, the petitioner was not an occupier. In this context, he has referred to section 2(n)(iii) of the Factories Act which reads thus: "2.(n)(iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier.";