1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.09.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.8012 of 2011 and M.P.(MD) No.1 and 2 of 2011 1.Manoharan 2.C.Vijayakumar 3.P.Anbalagan 4.K.Anbalagan : Petitioners -Vs- State of Tamil Nadu, represented by The Inspector of Police, Ponmalai Police Station, Tiruchirappalli crime No.365 of 2009 : Respondent PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records relating to the criminal case C.C.No.63 of 2010 on the file of the Judicial Magistrate No.V, Tiruchirappalli and quash the proceedings. For Petitioner : Mr.K.Jayaraman For Respondent : Mr.A.Ramar, Addl. Public Prosecutor O R D E R This petition is filed to call for the records relating to the criminal case C.C.No.63 of 2010 on the file of the Judicial Magistrate No.V, Tiruchirappalli and quash the proceedings. 2.The learned counsel appearing for the petitioner/A1 would submit that the petitioner is working as Deputy General Manager in Trichy Distilleries and Chemicals Limited, and other petitioners are working as Plant Manager, Senior Engineer and Deputy Manager respectively. He would further submit that on 09.07.2009, at about 13.00 hours, when maintenance work was carried on in the rectify spirit tank, an accident took place, while cutting truss iron angle by using gas cylinder, as a result of which, there was a fire which blasted the tank cover and three contract workers viz., John Kennady, Saravanan and Rejesh Succumbed to injuries and three others viz., Mohammed Saleed, Ayyappan and Senthil sustained grievous injuries. 3.He would further submit that immediately, the accident was informed to the Inspector of Factories and thereafter, Form 18 was https://hcservices.ecourts.gov.in/hcservices/ 2 complied with and the Deputy Chief Inspector of Factories rushed to the spot on the same day and having found violation of the Factories Act and after following the procedures, he filed the complaint before the learned Chief Judicial Magistrate, Tiruchirappalli, which was taken cognizance in S.T.C.Nos.12/2009, 13/2009, 14/2009 and 15/2009 respectively. He would further submit that in the above said cases, after enquiry, the occupier of the Factories and the Manager/the petitioner herein were convicted and sentenced to pay fine amount that the same was paid by them. He would further submit that with an ulterior motive, the defacto complainant set the law in motion in crime No.365 of 2009 before the respondent police in crime No.365 of 2009 for the offence under Sections 338 and 304(A) I.P.C. and after investigation, charge sheet has been filed in C.C.No.63 of 2010 against four persons and hence, he would submit that there may not be two proceedings for the same occurrence and hence, he prayed for the quashment of the proceedings against the petitioners. To substantiate his argument, he relied on the decision of the Jharkhand High Court in Ashwini Kumar Singh and another Vs. 2007 LLR 866. 4.Repudiating the same, the learned Government Advocate (criminal side) would file a counter stating that the case has been registered on the basis of the complaint given by one Govindaraj in crime No.365 of 2009 for the offence under Sections 338 and 304(A) I.P.C. and after investigation, charge sheet has been filed, which was taken on file in C.C.No.63 of 2010. He would further submit that the Inspector of Factories has also lodged a complaint as against the petitioners for violation of Factories Rules under the Factories Act and this case is no way connected with S.T.C.Nos.12 to 15 of 2009, which have already been ended in conviction and hence, he prayed for the dismissal of the application. 5.I have considered the submissions made on either side and perused the materials available on record. 6.The admitted facts are that these petitioners are arrayed as accused in C.C.No.63 of 2010, which is pending on the file of the Judicial Magistrate No.V, Trichy. The 1st petitioner is working as Deputy General Manager and the others are working as Plant Manager, Senior Engineer and Deputy Manager respectively in Trichy Distilleries and Chemical Limited. On 09.07.2009, at about 13.00 hours, when the maintenance work was carried on in the rectify spirit tank, an accident took place and due to the said accident, three contract workers viz., John Kennady, Saravanan and Rejesh Succumbed to injuries and three others viz., Mohammed Saleem, Ayyappan and Senthil sustained grievous injuries. It is true, the said accidence was informed to the Inspector of Factories and the Deputy Chief Inspector of Factories, initiated proceedings under the Factories Act before the learned Chief Judicial Magistrate, Trichy and the same was taken on file in S.T.C.Nos.12 to 15 of 2009 against the occupier of the Factories viz., one M.Narasimha Rao and the Manager, who is the https://hcservices.ecourts.gov.in/hcservices/ 3 1st petitioner herein. After trial, the Chief Judicial Magistrate, Dindigul found them guilty and they have paid the fine amount. 7.Now, on the basis of the complaint given by one Govindaraj, on the same day, a case in crime No.365 of 2009 has been registered for the offence under Section 338 and 304(A) I.P.C by the respondent police and after the completion of investigation, charge sheet has been filed against the petitioners and the same has been taken cognizance in C.C.No.6e of 2010 and pending before the learned Judicial magistrate No.V, Trichy. 8.The point now raised by the petitioner is that the occurrence has been taken place within the factory premises and on information, enquiry has been conducted and the Deputy Chief Inspector has filed a complaint against the occupier and the Manager of the Factories under the Factories Act. Since the complaint under the Factories Act have been disposed of, the proceeding under the Indian Penal Code, which is a general provision of law is not sustainable. 9.At this juncture, it is appropriate to consider the decision in Ashwini Kumar Singh and another Vs.State of Jharkhand reported in 2007 LLR 866, wherein, in paragraph No.7, it has been held as follows: “Para 7. The law is settled in the various decisions that the special law shall prevail over the general law but both shall not run concurrently for the same cause of action. I find that when the complaint case has been instituted vide C/2 No. 5211/05 under Special law (Factories Act, 1948), the continuation of the criminal prosecution against the petitioners for the offence prescribed in the general law of Indian Penal Code is unsustainable. In both the statutes viz., under section 304 A, Indian Penal Code (general law) and under section 92 of the Factories Act, 1948 the sentence prescribed to the convict is similar but with additional fine to the extent of Rs.One lakh in the Special Act to the occupier and in this manner the extent of fine is more severe in special law and both cannot proceed at a time. The criminal prosecution of the petitioners, therefore, under Indian Penal code is unsustainable. 10.Considering the above said decision, two proceedings will not be sustainable for the same cause of action/same incident. In the present case, since S.T.C.Nos.12 to 15 of 2009 filed under the Factories Act have been disposed of and the 1st petitioner herein and one Narasimha Rao were convicted and they paid the find amount, the continuation of the criminal proceedings against the petitioners for the offence prescribed in the general law of Indian Penal Code is unsustainable. https://hcservices.ecourts.gov.in/hcservices/ 4 11.Therefore, considering the above said decision along with the facts of the present case, I am of the view that it is a fit case to quash the proceedings against the petitioners. 12.Accordingly, this criminal original petition is allowed and the proceedings in C.C.No.63 of 2010 on the file of the Judicial Magistrate No.V, Trichy, against the petitioners is hereby quashed. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(A.S.) /True Copy/ ` Sub Assistant Registrar To 1. The Judicial Magistrate No.V, Trichirappalli 2.The Inspector of Police, Ponmalai Police Station, Tiruchirappalli. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. order made in Crl.O.P.(MD).No.8012 of 2011 and MP(MD)Nos. 1 and 2 of 2011 28.09.2011 arul SMA/18.10.2011/4C/4P https://hcservices.ecourts.gov.in/hcservices/