1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (MAIN) NO. 135 OF 2009 Shri Subir Bose .... Applicant V/s Inspector of Factories, represented by S.M. Paranjpe & Anr. .... Respondents Mr. V.A. Lawande, Advocate for the Applicant. Ms. W. Coutinho, Public Prosecutor for the Respondents. CORAM : N.A. BRITTO, J. DATE : 20 th APRIL, 2009 . ORDER: The petitioner herein is the Managing Director of M/s. Berger Paints India Ltd. having their office at Calcutta. Challenge in this petition is to the order dated 12/02/2009, of the learned Additional Sessions Judge upholding the order dated 13/06/2008, of the learned JMFC, dismissing an application dated 17/11/2007, filed by the petitioner under Section 258 of the Code of Criminal Procedure, 1973. 2. Some facts are required to be stated to dispose of this petition. As stated by the petitioner, on 28/04/2006 at about 11.20 hrs. fire took place at their factory situated at Cundaim Industrial Estate and one workman by name Tulshidas Palkar sustained minor injuries. Alleging that there was violation of Rule 4 of the Goa Factories Rules, 1985 and Section 37 and 38 of the Factories Act, 1948, the complaint was filed. 2 3. The complainant/Inspector of factories prosecuted the petitioner as occupier of the said factory and Shri S.M. Lahiri as Manager of the said factory under Section 92 of the Factories Act, 1948. Cognizance having been taken and summons having been issued, the petitioner i.e. the accused no.1 appeared before the learned Magistrate and filed the said application dated 9/11/2007 contending that the petitioner was the Managing Director of the said Company, who had 6 factories and more than 80 depots all over India and, as such, was not aware of day today working of the said factory at Cundaim, Goa and moreover, he was permanently residing at Calcutta. It was further stated that in the past, cases were filed without making an occupier party to criminal proceedings inasmuch as the case was one of accident for which he could not be made liable. 4. The said application came to be disposed of by the learned JMFC stating that the decisions cited did not say that the petitioner as occupier could be exonerated of the offences before trial and in the decisions cited it was clearly laid down that Section 92 would be attracted against the occupier if any overt act of commission or omission on the part of the occupier is proved and that could be proved only if the prosecution is given an opportunity to prove their case and the involvement of the occupier could be considered on the basis of the evidence adduced by the prosecution at the trial 3 and the petitioner could prove that he was not in the ultimate control of the affairs of the factory. The learned Magistrate also held that where the petitioner (accused no.1) was not the occupier and the question whether he was in ultimate control of the factory or not could be decided after evidence is adduced by both parties in the case. 5. The learned Additional Sessions Judge has proceeded to uphold that finding and those findings appear to be in conformity with the decision of the Apex Court in John Donald Mackenzie V/s. The Chief Inspector of Factories (AIR 1962 S.C. 1351) quoted by the learned Division Bench in the case of Kirloskar Pneumatic Co. Ltd. V/s. V.A. More and Ors. (1993 (1) Bom. C.R. 560), wherein the Apex Court observed that; “Undoubtedly the expression 'occupier' is not to be equated with 'owner'. But it must be born in mind that the ultimate control over the factory must necessarily be with an owner unless the owner has completely transferred that control to another person. Whether that was done in the present case would be a question of fact which was for the petitioners who contended that petitioner no.1 was the manager of the factory and had the ultimate control thereof, to lay before the Chief Inspector of Factories the necessary material for showing that the company had in some manner transferred the entire control over the factory to petitioner no.1.” 6. It is not disputed that this petition can be considered under Section 482 of the Code of Criminal Procedure, 1973 and therefore it is not necessary to refer to in detail to the case of Dhariwal Tobacco Products Ltd. & Ors. V/s. State opf Maharashtra & Anr. (2009 (2) SCC 370). 4 7. Section 2(n) of the Factories Act, 1948 defines an “occupier” of a factory to mean the person who had ultimate control over the affairs of the factory. The proviso, inter alia, stipulates that in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier. Section 92 of the Act deals with penalty for offences in general and, inter alia, provides that in case there is any contravention of any 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 Rs.1 lac or with both, and if the contravention is continued after conviction, with a further fine which may extend to Rs.1,000/- for each day on which the contravention is so continued (emphasis supplied). 8. As far as the allegations in the complaint are concerned, the petitioner had been clearly described as the occupier being the Managing Director of the said company and which according to the prosecution has ultimate control over the affairs of the company. The accused no.2 has been described as the Manager and it is more than clear from the bare perusal of the Section 92 of the Act that both the occupier as well as the Manager can be prosecuted for the contravention of the provisions of the Act or the Rules made there under. 5 That there was a fire is a clear prima facie indication that the premises were being used and the allegation is that they were being used without licence. On the face of the averments made in the complaint and the documents accompanying it, the contention that in the past only the Manager was prosecuted or for that matter in another case a concession was made to delete the Managing Director, would not have any bearing on the facts of this case, as contended on behalf of the petitioner, relying on order dated 23/06/2008 in Criminal Application (Main) No. 129/2008. The contention that the complaint was not field within 3 months also cannot be accepted for according to the petitioner the accident took place on 28/04/2006 and the complaint is filed on 28/06/2006 and therefore the complaint is well within the period prescribed by Section 106 of the Act. It is also been filed by the Inspector of factories himself and, therefore, prima facie, it is well within what is provided by Section 105. There are sufficient allegations that the said factory was being used without licence thereby violating Rule 4 of the aforesaid Rules and that the incident took place for want of adequate measures being taken to prevent break out of fire or explosion, facts which would be required to be proved at the trial. 9. Counsel on behalf of the petitioner has placed reliance on the said judgment of the Division Bench in the case of Kirloskar Pneumatic Co. Ltd. V/s. V.A. More and Ors. (supra), but I must hasten to add that it is of no 6 assistance to the case of the petitioner. The question there was whether a Director of the company could be nominated as an occupier as contemplated under Section 2(n) of the Act, 1948 and that was directed to be considered by the Inspector of factories after examining whether the person nominated was a person who had ultimate control over the affairs of the factory. Incidentally, it was held therein that the amendment of the Act did not make any departure prior to the amendment and that the occupier need not necessarily be a director of the company. 10. In the present case, and as per the complainant, the petitioner is the Managing Director of the said company and, hence, he is the occupier being the person who has the ultimate control over the affairs of the factory and that averment was more than sufficient to proceed with the trial of the case filed against the petitioner. 11. I do not find any merit in this petition, and consequently, the same is hereby dismissed with costs. Learned Counsel prays for grant of certificate to appeal to the Hon'ble Supreme Court. Prayer rejected. N.A. BRITTO, J. NH/-