In Criminal Original Petition No.20916 of 2019- MAD HC- Omission to provide safety measure and conditions itself is sufficient to prosecute under Factories Act but to prosecute under IPC, it is necessary to prove that such omission or commission was due to negligence which caused injury: Madras HC Justice G.Jayachandran [20-06-2022]

Read Order:  S.ASWIN CHANDRAN AND ORS V. THE STATE REP., BY INSPECtor of Police And Ors 

Mansimran Kaur

Chennai, June 22, 2022: While observing that there was no evidence to show negligence by either omission or commission on the part of the petitioner and prosecution could not frame the case on the basis of presumption, the Madras High Court has partly allowed the petition pertaining to the Factories Act.

The Single-Bench of Justice G. Jayachandran partly allowed the petition instituted by the petitioners against the criminal prosecution initiated in the instant case against the petitioners by observing that the that the  private complaint launched by the Deputy Director of Factories Safety and Health Department is for the cause, whereas the prosecution initiated by the respondent police is for the effect, thus the contention of the petitioners to quash the aforesaid criminal case as the same amounts to double jeopardy was rejected. 

The petitioners in the present case were the Chairman- cum Managing Director, General Manager and Electrical Engineer of M/s.Precot Meridian Limited. On a day of power shut down, the first petitioner requested a labour contractor, to send his staff to carry out the general electrical maintenance work in his company. Accordingly, the contractor sent three of his staff to attend the maintenance work. When these employees were working at the premises of the petitioner’s company, one of them became speechless and unconscious. He was taken to the hospital but he died on the way.

An FIR was registered under Section 174 of Cr.P.C. The prosecution altered the charge to Section 304 (A) of IPC  after the post- mortem report as the respondent suspected  that the victim might have died due to electrocution. Consequently, a final report was filed stating that the petitioners failed to provide sufficient protective gears and because of the same, the deceased died due to electrocution. The criminal prosecution was intitated by the petitioners alleging that the respondent , police had no authority to initiate criminal prosecution, as the Deputy Director, Factories Safety and Health Department, Pollachi, had launched criminal prosecution for the very same offence and got the accused convicted. Thus, the final report by the police violated Article 20 (2) of the Constitution as the same was hit by the principle of Double Jeopardy. Further it was the case of the petitioner that the deceased was not under the employment of the petitioner’s company. In view of the aforesaid submissions, the petitioner claimed the case of prosecution to be erroneous and unjust and liable to be quashed. 

The Court observed that the case of prosecution framed under the provisions of the Factories Act 1948 by way of private complaint and under IPC by way of final report reflected that they were distinct offences and not the same offences. To be precise, the Court observed that the private complaint launched by the Deputy Director of Factories Safety and Health Department is for the cause, whereas the prosecution initiated by the respondent police is for the effect.

It was further observed that the omission to provide safety measures and conditions is sufficient to prosecute under Factories Act, 1948 but to prosecute under IPC, apart from omission and commission it is necessary to prove such omission or commission was due to negligence and that negligence has caused the death/ injury. In light of the aforesaid observations, the Court opined that in the instant case, neither Article 20 (2) of the Indian Constitution nor Section 300 of Cr.P.C was attracted. 

With respect to the next contention of the petitioners pertaining to evidence relied upon by the petitioner stating that the even if the evidence relied upon by the prosecution is proved, the petitioners cannot be convicted for the offences under Section 287 & 304 (A) of I.P.C., which requires proof for negligence either by omission or commission committed by the accused persons, which has caused death due to said negligence, in relation to the same, the Court observed that the  evidences on record indicate that the deceased died due to electrocution, however the same had  nothing to do with omission or commission in providing safety kit.

 If the person has not anticipated the residual current in the electrical gear which he was handling, the said omission to take care amounts to negligence on the part of the person and not on the part of the incharge who has engaged him, the Court observed. 

Thus in the absence of any evidence to show negligence by either omission or commission on the part of the petitioner, the prosecution cannot frame the case on the basis of presumption, the Court noted. 

Thus in light of the aforesaid observations, the Court rejected the first limb of the contention with respect to the double jeopardy , however the second limb of the contention that no ingredient with respect to Section 287 and Section 304 (A) was eastablished, was accepted by the Court.