* THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR + CRIMINAL PETITION Nos.1933 and 6815 of 2008 % Dated 31.05.2010 # Between: Criminal Petition No.1933 of 2008 Between: # Sri Ashok Chandak …Petitioner / Accused AND $ The State of A.P. rep. by the Public Prosecutor High Court of Andhra Pradesh …Respondent Criminal Petition No.6815 of 2008 Between: # Sri Ashok Chandak and another …Petitioners / Accused AND $ The State of A.P. rep. by the Public Prosecutor High Court of Andhra Pradesh …Respondents ! Counsel for the Petitioners in both cases: Smt. C.JAYASHREE SARATHY ^ Counsel for the Respondents in both cases: PUBLIC PROSECUTOR < Gist : > Head Note: ? Cases Referred: 1. AIR 1970 AP 47 2. AIR 1965 SC 87 3. AIR 1988 SC 1106 4. 1983 Cri.L.J. 1542 5. AIR 1957 SC 592 6. AIR 1966 SC 69 7. AIR 1953 SC 325 8. AIR 2003 SC 791 9. AIR 1965 SC 87 10. AIR 1970 AP 47 11. AIR 1961 SC 578 12. AIR 1956 SC 110 13. AIR 1988 SC 1106 14. AIR 2005 SC 2804 15. AIR 1968 SC 1319 THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION Nos.1933 and 6815 of 2008 Dated:-31st May, 2010 Criminal Petition No.1933 of 2008 Between: Ashok Chandak …Petitioner AND The State of A.P. …Respondent Criminal Petition No.6815 of 2008 Ashok Chandak and another …Petitioners AND The State of A.P. and another ...Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION Nos.1933 and 6815 of 2008 COMMON ORDER: Since the facts and issues involved in both these criminal petitions are one and the same, both these petitions are being disposed of by this common order. The brief facts of the cases are as follows:- The petitioner is the Managing Director of M/s.Chandak Laboratories (Pvt.) Ltd., situated at premises No.7-61, Kondamadugu Village, Bibinagar Mandal, Nalgonda District. The factory was established in the year 1985 and started production of chemical products. The said factory has been covered under the provisions of the Factories Act, 1948 (‘the Factories Act’, for brevity). A huge fire accident had occurred on 27.09.2007 in the factory. Soon after receiving information, the fire service authorities took steps and one fire tanker was brought from Bhongir and as it was not sufficient, second fire tanker from Choutuppal was also brought to the spot. Subsequently, some other vehicles joined in fire fighting operation. The fire service personnel of A.P.Fire and Emergency Services Department, namely Sri M.Rameswara Rao, Lading Fireman, Sri G.Narsinga Rao, Fireman and Sri E.Vishnu Murthy, Fireman, sustained injuries while fire fighting operation and one R.Mahender Reddy, employee of the said factory also sustained injuries while fighting with fire. The victims were shifted to Kamineni Hospital, L.B.Nagar, Hyderabad, by means of 108 Ambulance. Though fire accident occurred on 27.09.2007, it appears that the injured were still being treated till the date of filing of complaint i.e. on 28.01.2008. In fact, the said fire fighting operation was supervised by senior officers of A.P.Fire and Emergency Services which include the Director General of Fire Service, Regional Fire Officer and District Fire Officer. The main allegation against the petitioner herein is that the fire personnel had sustained injuries mainly due to the negligence of the management (petitioner) to provide mandatory fire safety systems and personal protective equipments. It is also alleged that the petitioner, being Managing Director of the factory, failed to caution the victims about the hazardous nature / properties of the chemicals on fire and failed to provide required personal and protective equipments, and as such, violated the provisions of Sections 15, 16, 18, 19, Section 30 which deals with Penalties failure to take out license, Section 31 which deals with Penalties of the A.P.Fire Services Act, 1999 (‘Fire Services Act’, for brevity), Rule 29(6) of the A.P. Fire Service Operations and Levy of Fee Rules, 2006, which deals with Penalties for willful violation and Rule 29(7) which deals with Offences (Procedure to deal with offences by companies). It is also alleged that the petitioner failed to obtain renewal of license and thereby, violated Section 18 of the Fire Services Act, which was mandatory. In view of the willful contravention of the mandatory provisions and safety provisions, as required under Table 23 of the National Building Code of India, 2005, and other BIS safety standards, it is the case of the prosecution that the management is liable for penal action for the offences under the above mentioned sections. The said complaint, which is registered as C.C.No.218 of 2008 on the file of the Additional Judicial Magistrate of First Class, Bhongir in Crime No.152 of 2007 is the subject matter of quashing proceedings in Criminal Petition No.6815 of 2008. Basing on the said report given by Assistant District Fire Officer about the fire accident and on the allegation that there were no preventive measures for any sort of fire accident, that the fire fighters sustained injuries, that there was danger of loss of life and property and even for the neighbourhood, that there was heavy financial loss, and that the management is liable for penal action, a criminal case under Crime No.152 of 2007 was registered for the offences punishable under Sections 337 and 338 IPC. It also appears that the petitioner herein was arrested and subsequently released on bail. Challenging the initiation of criminal proceedings in Crime No.152 of 2007 for the offences punishable under Sections 337 and 338 IPC, Criminal Petition No.1933 of 2008 has been filed. Heard the learned counsel on record. The learned counsel for the petitioners submitted that the Inspector of Factories filed a complaint against the petitioner alleging that he failed to comply with certain provisions of the Factories Act, 1948 (‘the Factories Act’, for brevity) and thereby committed offence punishable under Section 92 of the Factories Act and that the petitioner pleaded guilty and was sentenced to pay a fine of Rs.5,000/- for the alleged offense under the Factories Act and in view of the same, the petitioner cannot be prosecuted for the same offence, though under a separate statutes. Her main submissions are that both the offences are not distinct offences as they arise out of the same set of facts and when there is a special enactment dealing with offence relating to the factories and when the petitioner is already convicted and sentenced under the Factories Act, continuation of other proceedings against the petitioner will amount to abuse of process of Court; that though some fire personnel have sustained injuries, those injuries were not as a result of any violation of safety measures to be provided by the petitioner company; that as far as the employee of the industry who sustained injuries is concerned, he has been already paid adequate compensation; that the petitioner is not responsible for the injuries sustained by the fire fighting personnel and the employee of the factory; that therefore, the FIR which is filed for the offences punishable under Section 337 and 338 IPC is not maintainable against the petitioner. It is also her submission that once petitioner has been convicted in STC 73 of 2008 on the file of the Additional Judicial Magistrate of the First Class, Bhongir, and was sentenced to pay a fine of Rs.5,000/- under Section 92 of the Factories Act, present FIR for the same fire accident and with same ingredients amounts to ‘Double Jeopardy’ and proceedings cannot be permitted to be continued in view of Article 20(2) of the Constitution of India which stipulates that no person shall be prosecuted and punished for the same offences more than once. It is her further submission that the ingredients of both the offences are one and the same and therefore, ‘Doctrine of Double Jeopardy’ will apply. She has also relied upon section 26 of the General Clauses Act, 1897, and submitted that where an act or omission constitute an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under either or any one of those enactments and shall not be liable to be punished twice for the same offence. With reference to the allegations of not obtaining licenses under the Fire Services Act, it is her submission that if at all the petitioner has not obtained license, the fire authorities would not have permitted to carry on production in the factory and that the petitioner had obtained No Objection Certificate from time to time and therefore, no offence is made out as alleged by the prosecution. It is also her submission that the second petitioner in Criminal Petition No.6815 of 2008 is not in-charge of day-to-day management of the factory and therefore, he had been unnecessarily made as accused in criminal case. Ultimately, her submission is that the present complaint nothing but abuse of process of Court and is liable to be quashed. In support of her contentions, she relied upon the judgments reported in In re. P. Bapanaiah[1] and Manipur Administration, Manipur, Appellant Vs. Thokchom Bira Singh, Respondent[2]. Per contra, the learned Additional Public Prosecutor representing the respondents submits that the ‘Doctrine of Double Jeopardy’ will not apply to the present case. His submission is that ‘Doctrine of Double Jeopardy’ will be applicable only in case where the offence is one and the same and where the offences are not separate and distinct offences. His further submission is that not obtaining required license under the Fire Services Act and not complying with the provisions of the Factories Act are distinct and separate offences. It is also submitted that the act of negligence on the part of the petitioner in not providing the required safety measures to the workers working in the factory is also punishable under the penal provisions. He has also referred to Section 300 Cr.P.C. and also relied on the judgment reported in V.K.Agarwal, Appellant Vs. Vasantraj Bhagwanji Bhatia and others, Respondents[3]. The only point that arises for consideration is whether the alleged offences punishable under the enactments, i.e., under the Factories Act, under the Fire Services Act and under Indian Penal Code are distinct offences or one and the same; and whether ‘Doctrine of Double Jeopardy’ is applicable to the facts and circumstances of the present case. Sub-Sections 1 and 2 of Section 300 of Code of Criminal Procedure, 1973, reads as under:- Sec.300. Person once convicted or acquitted not to be tried for same offence:- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of Section 220. Section 26 of the General Clauses Act, 1897, reads as under:- 26. Provision as to offences punishable under two or more enactments:- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. Article 20 (2) of the Constitution of India reads as under:- 20(2):- No person shall be prosecuted and punished for the same offence more than once. The Calcutta High Court, in a case between Baidyanath Basak and etc., Vs. Union of India and others[4], held as follows:- The provisions of S.26 of the General Clauses Act, on construction, resemblance those of Art.20(2) and notwithstanding the fact that the section permits a second trial after a previous one and acquittal, the provisions are unconstitutional. But under the provisions of S.26, the General Clauses Act and Art.20(2) of the Constitution, a double punishment is prohibited, so, an Act under which such double punishment would be permissible, would be void being repugnant to Art.20(2). It should, of course, be noted that the principle of issue estoppel, would be different from the principle of double jeopardy. In order to attract the principle of issue estoppel, there must have been distinctly raised and appropriately decided, the same issue in the earlier criminal trial between the same parties. The allegation against the petitioner is that the grievous injuries that were caused to the fire fighting personnel were mainly due to the failure on the part of the management to provide mandatory fire safety systems and personnel protective equipments and to caution the victims about the hazardous nature and properties of the chemicals of fire and failure to provide personnel protective equipments. The charge sheet allegations for the offence punishable under Section 338 IPC are as follows:- The Assistant District Fire Officer is the complainant. He alleges that a heavy fire accident took place at M/s.Chandak Laboratory Pvt., Ltd., Kondamadugumettu of Bibi Nagar Mandal the fire fighting personnel, namely, Sri M.Rameswara Rao, Lading Fireman, Sri G.Narsinga Rao, Fireman and Sri E.Vishnu Murthy, Fireman, sustained injuries while fire fighting operation and one R.Mahender Reddy, employee of the industry also sustained injuries in the accident. The scene of offence is the premises of M/s.Chandak Laboratories Pvt., Ltd., and it is located besides NH No.202 leading Hydeabad to Warangal towards northern side at a distance of about 100 yards at the outskirts of Kondamadugumettu. Compound wall is there around the factory having main gate and a wicket gate on the left corner of the western side. There are (50) tolling drums in front of the main block. Hydrogen factory is located beside the main block to the eastern side at a distance of 50 feet and both rooms are connected with cable. Some Hydrogen full cylinders are also placed in front of the burnt main block to the northern side, while there is a cooling tower on its backside. In this accident, the following property is found to be burnt:- (1) SS 316 Reactors condenser having capacity of 3000 litres W/Rs.10,00,000/- (2) SS 316 Reactors condenser having capacity of 2500 litres W/Rs.8,00,000/- (3) SS 316 Reactors condenser having capacity of 2500 litres W/Rs.7,00,000/- (4) SS 316 Reactors condenser having capacity of 2500 litres W/Rs.8,00,000/-, (5) 48” SS sentry fuse W/Rs.9,00,000/-, (6) SS Pump motors W/Rs.10,00,000/-, (7) Electrification flame fuse W/Rs.10,00,000/-, (8) MS Structure building office rooms W/Rs.20 lakhs, (9) Chemical works in progress (1500) Kgs W/Rs.23,00,000/-, (10) Rejected chemicals (3000) Kgs W/Rs. 45,00,000/- and (11) Raw material solvencies W/Rs.18,00,000/-. The Deputy Chief Inspector of Factories, Nalgonda has visited the scene of offence i.e. Chandak Laboratories Pvt., Ltd., Kondamadugumettu, inspected the scene and furnished the detail report opining that “The management has failed to provide a vent condenser to recover solvent (Toluene), so as to prevent the escape of inflammable solvent vapors into the atmosphere. Further they have failed to take precautions to prevent initiation of ignition of the solvent vapor to prevent the occurrence of fire in the production of block and extended to other areas. Also they have not provided adequate fire fighting facilities such as fire hydrant system, suitable and sufficient number of fire extinguishers and also personal trained in firing methods to extinguish / control the spread of fire.” The medical officer who treated the injured opined that the injuries sustained by the injured as “Grievous in nature”. In the light of the above referred specific allegations let us examine the case law on the subject. In State of M.P. Vs. Veereshwar Rao Agnihotri[5], it was held as follows: “A previous prosecution for an offence under Section 409, Penal Code, was no bar to a subsequent prosecution under Section 5(1)(c), Prevention of Corruption Act.” In Mohammad Safi Vs. State of W.B.[6], it was held as follows:- “Proceedings will not amount to a trial unless they are held before a Court which is in fact competent to hold them and which is not of opinion that it has no jurisdiction to hold them.” In Maqbool Hussein Vs. State of Bombay[7], it was held as follows:- The fundamental right guaranteed under Article 20(2) enunciates the principle of “autre fois convict” or ‘double jeopardy” which means that no person can be punished twice for the same cause and that once a person has been convicted of an offence by a competent Court, such conviction shall operate as a bar to a subsequent criminal proceeding for the same offence or on the same facts for any other offence. The test for the application of this principle is whether the former offence and the offence subsequently charged have the same ingredients, that is, whether the facts which constituted the first offence were sufficient to justify a conviction for the second offence. The test is not whether the State relies at the subsequent trial on the same facts on which it relied at the previous one. The word “offence in Article 20(2) has not been defined in the Constitution, but it has been defined in Section 3(38) of the General Clauses Act. Article 367 provides that the General Clauses Act applies for the interpretation of the Constitution. Therefore, the word “offence” in Article 20(2) must be taken to mean “any act or omission made punishable by any law” as defined in Section 3(38) of the General Clauses Act. The words “before a Court of law or a judicial tribunal” are not found in Article 20(2). But the various expressions used in Article 20 such as “convicted”, “commission of offence”, “penalty”, “prosecuted and punished”, etc., indicate that this Article contemplates that there was a judicial decision in the previous proceeding under which punishment was awarded for the commission of an offence. Article 20(2) can, therefore, be invoked only when all the following conditions are satisfied:- 1. that there has been previous proceeding before a Court of law or a judicial tribunal; 2. that the previous proceeding was of a criminal nature and in respect of the commission of an “offence”, that is, act or omission which is punishable under any law; 3. that there was a judicial decision in the previous proceeding; 4. that under the decision a “punishment” was awarded; and 5. that the offence of which the offender is now being tried is the same offence or has the same ingredients as the previous offence, or is based on the same facts which constituted the previous offence. In short, Article 20(2) can be invoked only when there has been a previous prosecution for an offence before a Court or judicial tribunal which has resulted in a punishment, and not otherwise. An order of confiscation and payment of duty at a higher rate made by Customs Authority acting under the Sea Customs Act, 1878, is not prosecution and punishment within the meaning of Article 20(2) and it cannot operate as a bar against a subsequent prosecution of the offender under the Foreign Exchange Regulation Act, 1947. In the present case, the accused was caught at an air port when he arrived from a foreign country with gold which he had not declared. The Customs Collector took proceedings against him under Section 167(8) of the Sea Customs Act, 1878, and ordered confiscation of the gold seized. Thereafter a complaint was filed in a Magistrate’s Court under Section 8 of the Foreign Exchange Regulation Act, 1947. The accused thereupon applied to the High Court invoking Article 20(2), and when he failed, he appealed to the Supreme Court. Held: (i) A Customs Authority was merely an administrative body with administrative powers and was not a judicial tribunal, and the proceeding before him was not in nature of judicial proceeding. (ii) The order of confiscation was only in the nature of a proceeding in rem, and not in the nature of a proceeding in personam. (iii) The proceedings taken by the Revenue Authorities not being a “prosecution for an offence” and the order of confiscation not being “punishment” of the offender, within the meaning of Article 20(2), they could not operate as a bar to subsequent prosecution of the offender for an offence under the Foreign Exchange Regulation Act. The Court observed that “prosecution in this context means an initiation of proceeding of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.” After examining the provisions of the Sea Customs Act, the Court came to the conclusion that a Customs Authority is not a “judicial tribunal” and that the imposition of confiscation or of increased rate of duty or of a penalty under the Act was not an order of a Court or judicial tribunal, and on these conclusions the Court rejected the plea of “double jeopardy” in that case. These findings apply with full force to the present case. The language employed in various provisions of the Sea Customs Act makes it clear that the Act does not envisage the Customs Authorities to function as a Court. Expressions like “offences” and “penalties” have been used in the Act in their generic sense, and not in their specific sense as acts punishable under any penal law, and the power vested in Customs Authorities to order confiscation or to impose penalty in respect of an offending article, is distinct from a sentence of imprisonment or fine imposed by a Criminal Court. Whenever criminal prosecution and punishment of the offender in the sense of the penal law is contemplated in the Act, it makes a specific reference to a trial by a Magistrate, to a conviction by such a Magistrate, and to imprisonment or fine upon such conviction. In State of Rajasthan, Appellant Vs. Hat Singh and others, Respondents[8], it was held as follows: Art. 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. To attract applicability of Art. 20 (2) there must be a second prosecution and punishment for the same offence for which the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and punishment are not barred if the ingredients of the two offences are distinct. The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. The manifestation of this rule is to be found contained in S. 26 of the General Clauses Act, 1897, S. 300 of the Code of Criminal Procedure, 1973 and S. 71 of the Indian Penal Code. The offence under S. 5, under S. 6(1) r/w S. 6(3) and S. 6 (2) r/w S. 6 (3) are three distinct offences. They are not the same offences. This is clear from a bare reading of Ss. 5 and 6. While S. 5 makes the commission of an act an offence and punishes the same; the provisions of S. 6 are preventive in nature. The prohibition under S. 6 is against abetment of Sati or doing of any act, which would aid or facilitate the commission of Sati. In case of prosecution under S. 6(2) r/w S. 6(3) what would be punishable is such defiance or contravention of the order of the Collector and District Magistrate, as has the effect of the glorification in any manner of the commission of Sati. In distinction therewith, it is the actual doing of an act for the glorification of Sati which is made punishable u/S. 5. Thus the sense, import and content of the offence u/S. 5 are different from the one under S. 6(3). What is punished under S. 5 is the criminal intention for glorification of Sati; what is punishable under S. 6 is the criminal intention to violate or defy the prohibitory order issued by the