IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27850 of 2009 1. Shri Suresh Kumar Jalan, S/O-Late Ram Awatar, Managing Director, M/s Carbon Resources Pvt. Limited. Unit No. 2 2. Smt. Renu Jalan, W/O-Shri Suresh Kumar Jalan, Director, M/s Carbon Resources Pvt. Limited. Unit No. 2 3. Abhinav Kumar Jalan, S/O-Shri Suresh Kumar Jalan, Director, M/s Carbon Resources Pvt. Limited. Unit No. 2, Barauni Industrial Area, Post-Tilrath, District-Begusarai. All presently residing at Narayani Niwas, New Barganja, Giridih, Jharkhand……………………Petitioners Versus The State Of Bihar ……….Opposite Party with Cr.Misc. No.27851 of 2009 1. Shri Suresh Kumar Jalan, S/O-Late Ram Awatar Jalan, Managing Director, M/s Carbon Resources Pvt. Limited. Unit No. 2 2. Smt. Renu Jalan, W/O-Shri Suresh Kumar Jalan, Director, M/s Carbon Resources Pvt. Limited. Unit No. 2 3. Abhinav Kumar Jalan, S/O-Shri Suresh Kumar Jalan, Director, M/s Carbon Resources Pvt. Limited. Unit No. 2, Barauni Industrial Area, Post-Tilrath, District-Begusarai. All presently residing at Narayani Niwas, New Barganja, Giridih, Jharkhand……………………Petitioners Versus The State Of Bihar ………….Opposite Party ----------- For the Petitioners:-Shri Nandan Pd. Singh Shri Ashok Kumar No.1 Shri Surendra Prasad Singh For the State :- Shri Uma Shankar Pd. Singh, A.P.P. 02 11.08.2011 Both the above stated petitions are clubbed together and common order is being passed in both the above stated petitions because the parties are same and the common question of law is involved in both the above stated petitions. Cr. Misc. No. 27850 of 2009 has been filed under Section 482 of the Cr.P.C. for quashing the order dated 07.09.2007 passed by Chief Judicial Magistrate, Begusarai in Case No. 69 (C2) of 2007 and also for quashing the entire proceeding of above stated case which is pending in the court of Judicial Magistrate, 1st Class, 2 Begusarai whereas Cr. Misc. No. 27851 of 2009 has been filed under Section 482 of the Cr.P.C. for quashing the order dated 07.09.2007 passed by Chief Judicial Magistrate, Begusarai in Case No. 70 (C2) of 2007 and also for quashing the entire proceeding of above stated case which is pending in the court of Judicial Magistrate, 1st Class, Begusarai. The brief facts of these cases are that one Sri Gopal Kumar, Factory Inspector inspected the premises of M/s. Carbon Resources Private Limited (Unit-II), Mukam-Barauni Industrial Area, Post-Tilrath, District-Begusarai and found several violations of factories act and accordingly, he filed a prosecution report against the petitioners showing them directors of the aforesaid factory. On being receipt of the prosecution report, learned Chief Judicial Magistrate took cognizance for the offence under Section 92 of the Factories Act passing impugned orders against which these petitions have been filed. The contention of learned counsel for the petitioners is that according to prosecution report itself, petitioners are directors of the factory in question and as per Section 92 of the Factories Act, only occupier and manager of the factory can be prosecuted under the above stated Section and, therefore, the prosecution against the petitioners is abuse of process of the law and the same must be quashed. To fortify his above stated contention, he referred a decision reported in 1983 PLJR Page-274 in which it has been held by 3 this Court that directors of a factory cannot be prosecuted under Section 92 of the Factories Act. Learned Additional Public Prosecutor though supported the impugned orders and prosecution of the petitioners but he could not succeed to controvert the above stated submissions of learned counsel for the petitioners. Before entering into the facts of the case, I would like to refer Section 92 of the Factories Act, 1948 which runs as follows :- General Penalty for offences- Save as is otherwise expressly provided in this Act and subject to the provisions of Section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to [two years] or with fine which may extend to [one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to [one thousand rupees] for each day on which the contravention is so continued: [Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under Section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than [twenty-five thousand rupees] in the case of an accident causing death, and 4 [five thousand rupees] in the case of an accident causing serious bodily injury. According to above stated section, it is obvious that only occupier and manager of the factory can be prosecuted for violation of any provisions of this Act. The word ‘occupier’ has been defined in Section 2 (N) of the Factories Act and the aforesaid definition says that occupier of a factory means the person who has ultimate control over the affairs of the factory. In the above stated decision, it has specifically been held by this Court that directors are neither occupier nor manager of the factory because they are not the persons who are responsible for day to day affairs of the factory. In the instant case, according to prosecution report, when the factory inspector inspected the premises of the factory, the manager of the aforesaid factory was found present. So, the aforesaid fact clearly indicates this fact that there was one manager in the aforesaid factory to look after the day to day affairs of the aforesaid factory. So far as occupier of the aforesaid factory is concerned, the prosecution report does not disclose the name of the occupier and learned counsel appearing for the petitioners also expressed his inability to disclose the name of the occupier of the aforesaid factory. It is an admitted position that petitioners are directors of the factory in question. So, in my view, in the light of Section 92 of the Factories Act as well as the above stated decision, no prosecution can be lodged against them and lodging of prosecution as well as 5 taking of cognizance on the basis of prosecution report is nothing but only abuse of process of the law. In view of the aforesaid discussions, both the above stated petitions are allowed and orders dated 07.09.2007 passed in Case No. 69 (C2) of 2007 and Case No. 70 (C2) of 2007 respectively as well as entire proceedings of the aforesaid cases stand quashed. Accordingly, both the above stated petitions are disposed of on admission stage itself. SHAHZAD ( Hemant Kumar Srivastava, J.)