CR.A/809/1993 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 809 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE STATE OF GUJARAT - Appellant(s) Versus DIPESHBHAI V SHAH - Opponent(s) ========================================================= Appearance : MR PD BHATE, APP Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/01/2008 ORAL JUDGMENT This appeal has been filed by the State seeking enhancement of the penalty imposed by the learned Metropolitan Magistrate, Court No.4, Ahmedabad in CR.A/809/1993 2/4 JUDGMENT Criminal Case No.5611 of 1989. 2. Though served, no one appears for the respondent. The respondent was the original accused in Case No.5611 of 1999. It was alleged, inter alia, that in a factory which he was in charge of, there were breaches in safety measures and he had thereby committed breach of the provisions contained in section 21(1)(iv)(b) of the Factories Act. It was further alleged that on account of insufficient safety measures, there was an accident in which hand of one workman was cut in the machinery and he was liable to be penalised under section 92 of the Factories Act. Before the learned Magistrate, the respondent pleaded guilty. He was penalised with a fine of Rs.500/-. 3. Before this Court, State contends that the punishment is inadequate and below even the minimum prescribed under the Factories Act. Insofar as the respondent having committed offence punishable under section 92 of the Factories Act is concerned, there is no dispute since he had pleaded guilty before the Court. 4. As amended by the Amending Act, 1987, section 92 of the Factories Act, reads as follows: “92. 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 CR.A/809/1993 3/4 JUDGMENT 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 extent to two years or with fine which may extent 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 then twenty- five thousand rupees in the case of an accident causing death, and five thousand rupees in the case of an accident causing serious bodily in jury.” Explanation – In this section and in section 94 “serious bodily injury” means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of hand or foot). Learned APP submits that in view of the amended provisions, particularly in view of proviso to section 92, minimum penalty in the present case ought to have been Rs.5,000. He submitted that on account of breach of the provisions contained in section 21(1)(iv)(b) of the Factories Act, there was a serious accident causing injury to a workman and that therefore, penalty of Rs.5,000/- in the minimum CR.A/809/1993 4/4 JUDGMENT should have been imposed. 5. From the available material on record, it cannot be stated that the accident caused serious bodily injury to the workman. Proviso to section 92 of the Factories Act would be applicable only when it is proved that on account of breach of the provisions contained in Chapter IV or any rules made thereunder or section 87 of the said Act, there has been an accident causing serious bodily injury to any person. In the present case, except for stating that there was serious accident, no further material has been produced. This is not the same thing as suggesting that the accident resulted into serious bodily injury. For want of sufficient material, therefore, it cannot be held that the learned Magistrate imposed punishment which was lower than the minimum prescribed by law. 6. In the result, I find no merit in the appeal. The appeal is therefore dismissed. (Akil Kureshi, J.) (vjn)