State of Gujarat vs Prafulchandra Somchand Shah on 22 November, 1993

Gujarat High CourtState Of Gujarat vs Prafulchandra Somchand Shah on 22 November, 1993Equivalent citations: (1996) 2 GLR 272Bench: K Vaidya

JUDGMENT

1. This appeal by the State of Gujarat, is directed against the impugned judgment and order, datedFebruary 5, 1992 rendered in Criminal Case No. 2964 of 1984 by the learned J.M.F.C., Jamnagar,wherein the respondent Prafulchandra Somchand Shah, who came to be tried for the alleged offencepunishable under Section 21(1)(iv)(b) read with Section 92 of the Factories Act, 1948, was at the endof the trial ordered to be acquitted.

2. According to Mr. K. N. Gandhi, the Factory Inspector, Jamnagar, on April 3, 1984 at about 5.35PM., he received a telephonic message from "Oshwal Velve Manufacturing Company", situated atB/14, M. P. Shah Udyognagar, Jamnagar, to the effect that Bai Hamida Siddiqbhai, aged 18, awoman worker in the said factory, had met with an accident wherein her left hand, just below theelbow portion was cut off as it came in between the pulley and belt of the machine where she wasworking. On the basis of this information, the Factory Inspector visited the said factory and ontaking inspection, it came to his notice that the machine in question wherein Bai Hamida wasinjured was 5. H.P. with 1525 RPM and was in working condition. It had a 'Thada' (sitting place) andaccordingly could be operated by sitting nearby. Not only that but there was no protective guard ofany type to cover the pulley and belt. Immediately thereafter, he visited Sir Irvin Hospital,Jamnagar. Where injured Bai Hamida was removed for medical treatment and recorded there herstatement, Exh. 12. Thereafter. On the next day, i.e., April 4, 1984 he received notice of accident.Exh. 10 in Form No. 21, which is required to be immediately sent under Rule 103 of the GujaratFactories Rules, 1963 ("Rules" for short) prescribed under Section 88 of the Factories Act, 1948("Factories Act" for short) which pertains to the 'notice of certain accident, duly signed by theManager of the factory'. Thereafter, on April 9, 1984 when he visited the factory, the machine inquestion where Bai Hamida received injury was found not having protective guards and on the basisof all these facts, the Factory Inspector prepared the inspection report, Exh. 8, and forwarded thesame to the respondent Manager, alongwith diagram of the machine stating therein the dates of hisearlier two visits and his findings that the machine in question was not having cover or protectiveguard. On the basis of these facts, the Factory Inspector ultimately filed complaint, Exh. 1 on July20, 1984 against the respondent herein for the alleged offence punishable under Section 21(1)(iv)(b)read with Section 92 of the Factories Act, 1948, before the learned Judicial Magistrate, First Class,Jamnagar, whereupon summons came to be issued against the respondents.

3. At the trial, while explaining away the circumstances appearing against him under Section 313 ofthe Criminal Procedure Code, 1973, the respondent pleaded not guilty and claimed to be tried.According to him, as per the requirements of Factories Act, Rules & Regulations, the pulley and thebelt of the machine in question was duly covered and properly guarded. Thereafter, when a specificquestion was put to him as to what he has to say about, firstly, the Inspection Report, Exh. 8 andsecondly, Exh. 10, i.e., form No. 21 sent to him as the Factory Inspector stating therein the very facts

State Of Gujarat vs Prafulchandra Somchand Shah on 22 November, 1993

Indian Kanoon - http://indiankanoon.org/doc/1179818/ 1

alleged in the complaint, surprisingly enough not Controverting the same his reply was that he hadnothing to say ! Similarly, when a question was put to him about the evidence given by Bai Hamidaabout the manner in which the alleged accident took place, it was replied that when the workers areemployed in factory at that time they were duly explained about the safety measures and were alsofurther instructed not to touch the belt and pulley in question on which they were working asseparate foremen were employed for that purpose.

4. The learned Magistrate, after duly appreciating the evidence laid before him, acquitted theaccused briefly on the following grounds :

4.1. That the Factory Inspector, in his cross-examination has admitted that when he visited thefactory he had neither noticed any defect nor did he remember as to on April 4, 1984 at what time hehad visited the factory !! 4.2. When the Factory Inspector visited the scene of the accident manyworkers other than the injured Bai Hamida were sitting on the Thada of the machine in questionwhich at that time also was not covered by any protective guard and yet he has not filed any separatecomplaint about the same !! 4.3. That at the time when the Factory Inspector recorded thestatement of Bai Hamida, Exh. 12, though her father was very much present, her thumb mark wasidentified by himself. Not only that but further since when the statement of Bai Hamida wasrecorded at Irvin Hospital, some other independent persons present there could have been called foridentifying the thumb marks but the same was not done. Under these circumstances, possibilitycannot be ruled out that her statement was not voluntary one as the Factory Inspector himself hasrecorded the same.

4.4. That the Factory Inspector has not prepared any panchnama regarding the scene of theaccident. Had the panchnama of the scene of the accident been drawn right on the spot then theCourt would have been in a better position to appreciate about the place and condition of themachine.

4.5. That no statement has been recorded either of the Manager or that of the owner of the factoryregarding the fact whether the machine was covered with the protective guard or not. This wasabsolutely necessary and yet the same has not been done !! 4.6. That in the cross-examination, theFactory Inspector has admitted that he was not in a position to say whether on April 3, 1984 whenthe accident took place, the machine was covered with the protective guard or not.

4.7. That the Factory Inspector has not recorded the statement of other workers present at therelevant point of time !! 4.8. That the defence version, viz., that at the time when the accident tookplace, the machine was duly covered by the protective guards and that as the accident in questionhas taken place entirely due to the negligence of the worker, the Manager cannot be held to beresponsible.

4.9. That the injured Ba Hamida in her cross-examination has admitted that on the door where themachine in question was placed, there was a board, which as she was illiterate did not know as towhat was written therein. It is the defence of the accused that there is a clear instruction on the saidboard that whenever there is no cover on the machine, the worker should not work.



4.10. That as Bai Hamida has admitted that at the time when her statement came to be recorded bythe Factory Inspector she was under the influence of the sedative medicines, it was doubtful whetherthe statement given by her was given in proper state of mind and therefore, was voluntary andtruthful.

4.11. That the prosecution has not examined the Doctor who gave the treatment to the injured atIrvin Hospital.

On the basis of the aforesaid reasonings, the learned Magistrate concluded that firstly it was notproved beyond any doubt much less the reasonable doubt that the accident in question took place inthe manner alleged by the prosecution because of the negligence of the respondent and secondly,but for the negligence of injured Bai Hamida she would not have received such serious bodily injury,and accordingly, acquitted the respondent; as stated above in Para-1 of this judgment, giving rise tothe present acquittal appeal.

5. The respondent though served is absent, still however, taking into consideration the reasons foracquittal which required close scrutiny, and accordingly, inadvertently even something is not missedfrom taking due notice of the same from the record, by way of abundant caution, Mr. P. B. Bhatt, thelearned Advocate present in the Court was requested to carefully go through the record and assistthe Court in the event of necessity, more particularly if there is something even on the basis of whichthe order of acquittal could be conformed.

6. Heard Mr. K. C. Shah, the learned A.P.P. and Mr. P. B. Bhatt, the learned Advocate appointed toassist the Court.

7. On being taken through the evidence on the record as well as the reasons for acquittal given by thelearned Magistrate, there is indeed no doubt whatsoever that there is no ground worth the namewhich can sustain the impugned order of acquittal. In fact, on screening the so-called reasons foracquittal they more or less appear to be mere lame excuses or rather to say the least, lack of judicialexperience in the matter of appreciating evidence in the special types of cases under the FactoriesAct like the present one ! There is indeed a wide, unbridgeable and indeed a glaring gap/differenceon the one hand the 'reasons' for acquittal and 'excuses' for the acquittal on the other hand ! May beperhaps the learned Magistrate having entirely misconceived the legal position, has misdirectedhimself in not making out the intrinsic difference between the offence under the Indian Penal Codeand offences under the Factories Act, which cast certain statutory allegations upon the Manager orthe owner of the factory.

8. While appreciating the legality and validity of the impugned order of acquittal in properperspective, it is indeed necessary first of all to carefully examine the so-called reasons for acquittal,as thread-bare particularized above in para-4 of this judgment.

9. Accordingly, to start with the first ground for acquittal, it may be stated that the answers elicitedin the cross-examination of the Factory Inspector cannot be given any undue weight andconclusively banked upon to doubt his overall veracity. Firstly, for the reason that the accident in



question took place as long back as on April 3, 1988 and as against the fact that his evidence came tobe recorded on November 11, 1991, i.e., after more than three and half years, It is indeed not difficultto appreciate how much dust the memory of the Factory Inspector must have gathered by the timehe gave evidence before the Court !! Secondly, looking to the provisions contained in Section 88which pertains to the Notice of certain accidents empowering the State Government to make rules insaid regard and Rule 103 of the Rules made thereunder which pertains to the notification ofaccident, and the prescribed Form No. 21, which in turn pertains to the 'notice of accident and thedangerous occurrence 'forwarded by none-else than the respondent himself who was the Manager ofthe factory at the relevant time, it cannot be doubted that the alleged accident has not taken place inthe manner as actually alleged by the injured Bai Hamida, (PW-2, Exh. 28). In this view of theintrinsic unquestionable contemporaneous documentary evidence as warranted by the statutoryprovisions and the evidence of Bai Hamida, there is indeed no scope whatsoever to doubt anddiscard the evidence of Factory Inspector. No doubt the Factory Inspector while giving evidencebefore the Court was quite haphazard, which he ought not to have been !! In fact before entering theWitness Box for giving the evidence before the Court, the Factory Inspector was expected tocarefully go through the record so as to refresh his memory. Not to do so and give evidence in littlecareless way which is contrary to the contemporaneous record indirectly allowing himself to createthe doubt in favour of the accused could be and must be accordingly seriously viewed as nothing lessthan the serious dereliction of duty !! (This is required to be brought to the notice of all "FactoryInspectors" of the State in the interest - both of the Factory Inspectors personally and of the LabourWelfare Legislation, where case may not fail because of reminiscence on the part of the carelessnessor corruption of Factory Inspectors !!) Further stilt, the injured Bai Hamida whose statement datedApril 4, 1988 (Exh. 12) came to be recorded by the Factory Inspector had indeed no reason to falselyallege the manner in which the accident took place more particularly when there is nothing in hercross-examination to indicate that she was out to falsely implicate the respondent by concoctingfalse case against him. It appears that the Factory Inspector while giving reply in hiscross-examination has replied to the general question just put to confuse, mislead and trap him inhis unguarded moment after more than three years of the alleged accident, if not anything else !! Inthis view of the matter, the answers to the questions contrary to the contemporaneous record cannotbe given undue weight to be utilized to help out the respondent when he said that he did notremember as to when he visited the factory, the machine in question, where the incident took placewas covered by protective measure or not. Further, when the Factory Inspector first visited on April4, 1988 merely because he did not remember the time of the visit, it means the exact time and fromthat no adverse inference can be drawn against him doubting him that he has not visited at all.

10. With reference to the second reason for acquittal, it has to be stated that it is not necessary thatthe Factory Inspector should have filed yet another complaint on the ground that the machine wasnot covered by the protective measures, as the Statement at Exh. 12 of Bai Hamida and theInspection Report at Exh. 8 clearly brought home the charge against the respondent-accused.

11. With reference to the third reason for acquittal. It has to be stated that it was indeed notnecessary for the Factory Inspector to get identified the thumb impression of Bai Hamida by someindependent person available in the hospital for the simple reason that the alleged injury to her isnot at all in doubt more particularly when the proprietor of the factory himself has communicated in



Form No. 21 produced at Exh. 10 stating therein the particulars about the name of the injured, themachine, place and manner in which the alleged accident took place, nature of injury, etc. This FormNo. 21 is duly filled by none-else than the respondent Manager himself which intrinsically andclearly enough lends support to the evidence of Factory Inspector and injured Bai Hamida. Underthe circumstances, the respondent-accused certainly cannot he permitted to disown Form No. 21 atExh. 10 forwarded under his own signature !! In this view of the matter, it is indeed really strange asto how on such an imaginary ground the veracity of Bai Hamida and for that purpose even that ofthe Factory Inspector came to be doubted when contemporaneous documentary evidence by way ofForm No. 21 at Exh. 10 and the Inspection Report Exh. 8 stood/stand steadfast in favour of theprosecution against the respondent !!

12. With reference to 4th reason for acquittal, it must be stated that there is indeed no necessity fordrawing panchnama of the scene of accident in cases of any fatal or otherwise serious injuriesreceived during the course of employment in the factory premises. There is no such statutoryrequirements ! The necessity of drawing the panchnama arises only in those cases where the Courtfinds it necessary to have some independent assistance to properly understand the scene ofoffence/accident ultimately in order to appreciate the evidence of the injured or other eye-witnessesin proper perspective in cases other than the Factories Act like the one under the Indian Penal Code,etc. etc. So far as the offences under the Factories Act and more particularly the present sort ofoffences are concerned, the statute under its fold has taken abundant care to safeguard the interestof the injured by casting a statutory obligation upon the concerned owner/occupier/Manager (as thecase may be) under Section 88 of the Act which pertains to the notice of certain accidents and bymaking rules thereunder, viz., Rule 103 of the notice of accident. For ready reference, both Section88, Rule 103 as well as Form No. 21 are reproduced hereunder :

"Section 88. Notice of certain accidents - (1) Where in any factory an accident occurs which causesdeath, or which causes any bodily injury by reason of which the person injured is prevented fromworking for a period of forty-eight hours or more immediately following the accident, or which is ofsuch nature as may be prescribed in this behalf, the Manager of the factory shall send notice directto such authorities, and in such form and within such time, as may be prescribed.

(2) Where a notice given under sub-section (1) relates to an accident causing death, the authority towhom the notice is sent shall make an inquiry into the occurrence within one month of the receipt ofthe notice, or if any such authority is not the Inspector, cause the Inspector to make an inquirywithin the said period.

(3) The State Government may make rules for regulating the procedure at inquiries under thissection.

Section 88-A. Notice of certain dangerous occurrence - Where in a factory any dangerous occurrenceof such nature as may be prescribed occurs, whether causing any bodily injury or disability or not,the Manager of the factory shall send notice thereof to such authorities, and in such form and withinsuch time, as may be prescribed.



Rule 103. Notification of accidents - (1) When any accident or occurrence specified in the Scheduletakes place in a factory the Manager of the factory shall forthwith send notice thereof by telephone,special messenger, or telegram to the Inspector and if the accident is fatal or of such a serious naturethat it is likely to prove fatal notice as aforesaid shall also be sent to -

(a) the District Magistrate or Sub-Divisional Officer; and

(b) the Officer-in-charge of the nearest police station.

(2) The notice so given shall be confirmed by the Manager of the factory in the above mentionedauthorities within 12 hours of the accident or occurrence by sending to them a written report in(Prescribed under Rule 103) Notice of Accident or Dangerous Occurrence

1. Name of Occupier (or Factory)

2. Address of Works where accident or dangerous occurrence happened.

3. Nature of Industry

4. Branch or Department and exact place where the accident or dangerous occurrence happened.(Section 88 of the Act.)

5. Injured person's name & address

6. (a) Sex

(b) Age (last birthday), and

(c) Occupation of injured person

7. Date and hour of accident or dangerous occurrence.

8. Hours at which he started work on day of accident.

9. (a) Clause or nature of accident or dangerous occurrence.

(b) If caused by machinery

(i) Give name of the machine (b) (i) and part causing the accident and

(ii) State whether it was moved (b) (ii) by mechanical power at the time.

(c) State exactly what injured person was doing at the time.



10. Nature and extent of injuries (e.g. fatal, loss of finger, fracture of leg scald, followed by asepsis).

11. If accident is not fatal, state whether injured person is likely to be disabled for 48 hours or more.

12. Name of Medical Officer in attendance on injured person.

I certify that to the best of my knowledge and belief the above particulars are correct in everyrespect.

Signature of Occupier or Manager Date of despatch of report".

13. Thus, taking into consideration, Sections 88, 88-A, Rule 103 and Form No. 21, reproducedhereinabove, and its due compliance at Exh. 10, and secondly, the Inspector Report at Exh. 8 inwhich a diagram of the machine was also drawn and brought on the record, it was indeed notnecessary for the Factory Inspector to draw a panchnama and/or for the purpose for the Court tounnecessarily insist upon the same !! In fact, if at all it was necessary to have panchas andpanchnama drawn regarding the place of the accident in factory, then the Legislature in its wisdomhaving taken a desired care in said respect by providing sub-section (7) of Section 10 of thePrevention of Food Adulteration Act, 1954, certainly would not have missed to take this particularcare in engrafting the similar provision in the Factories Act also for which the learned Magistratehas unwarrantedly shown some over and undue concern and anxiety !!

14. With reference to the 5th reason for acquittal, it may be stated that there was indeed no necessityfor the Factory Inspector to record the statement either of the Manager or the owner of the factoryas regards the fact whether the machine in question where the worker received injury was coveredwith the protective measure or not. The very fact that under Section 88 of the Act, and Rule 103,when the Manager is required to communicate immediately in Form No. 21 about the accident, thecompliance of the same, by itself is as good as the contemporaneous statement of the Manager andin that view of the matter there was indeed no necessity to have further and separate statement to berecorded either of the Manager and/or owner of the factory, etc. etc.

15. With reference to the 6th reason for acquittal, it may once again be stated that there was indeedno question of the Factory Inspector admitting in cross examination whether he was in a position tosay whether on April 3, 1984 when the accident in question took place, the machine was coveredwith protective guards or not, for three simple reasons; firstly the admission appears to be either anunguarded slip while giving evidence or deliberately saying so to oblige the respondent-accused, andsecondly, alleged admission in cross-examination is of no consequence in view of the evidence of BaiHamida Exh. 12, Inspection Report Exh. 8 and Form No. 21 produced at Exh. 10; thirdly, in case ifthe machine as asserted was covered with the protective guard, in that case, the accident would nothave taken place, and frothily, ordinarily, no one can be attributed to lack that much common senseunderstanding, namely, that to everyone his/her life, limb and property is extremely dearer next tonone and therefore, by very instinct of the self preservation/ protection, the concerned person willtake all the possible care to protect one's life and limb from the injuries that can be sustained. Eventhe illiterate will be on the guard in order to see that his life or limb is not put to any danger. The



fact remains that left hand of Bai Hamida has been cut off right below the elbow and was sent to SirIrwin Hospital, Jamnagar, and immediately thereafter a telephonic message was sent which wasfollowed by forwarding Form No. 21. These contemporaneous intrinsic circumstances by way ofdocumentary evidence clearly establish the manner in which alleged accident took place.

16. With reference to 7th ground of acquittal, it may be stated that it is not necessary always for theFactory Inspector to record statement of other workers also present at the relevant point of time forthe simple reason that no injured person will try to create false evidence by getting his/her handchopped off in a machine merely for the sake of allegation ! It is only in the matter of serious doubtswhere the judicial conscience requires some independent corroboration that the statement of otherpersons present at the relevant point of time may be recorded. In fact, the details filled in Form No.21 by none else than the Manager of the factory himself, clearly makes out a case under Section21(1)(iv)(b) of the Act. Of course, in a given case in the event of necessity, when for whatever reasonsthe required statutory Form No. 21 is not forwarded and/or duly accompanied with by filling up itscolumns, then the Factory Inspector may have to inquire about and ascertain the presence if any ofother workers at the time of accident in question and record their statements. There being no suchnecessity in the present case there is indeed no question of recording statement of other workers,more particularly when the evidence of Bai Hamida is found to be as firm as rock !!

17. With reference to 8th ground of acquittal, the defence version to the effect that the machine wasduly covered with the protective measure and that the accident in question took place entirely due tothe negligence of Bal Hamida, the Manager cannot be held responsible, it may be stated that thisbald assertion by itself does not take the case of the respondent any further for two simple reasons,viz., in the first instance, as stated above that had indeed the machine been duly covered with theprotective guard, the accident in question certainly would not have taken place as nobody wouldvoluntarily invite such serious injuries, and in the second instance, most important thing is that thenegligence of the worker can never be a defence ever available to the accused where the statutoryobligation upon the factory Manager or the owner has not been duly discharged. In fact, but for theinitial negligence on the part of the concerned factory owner, Manager, etc. of ignoring the Statutoryprovisions, there would not have been any further scope for the worker to be negligent to be victimof the accident !!

18. With reference to 9th ground of acquittal, it may be stated that merely because the injured BaiHamida admitted in her cross-examination that on the door where the machine in question wasoperating there was a notice board with clear instructions that whenever there is no cover on themachine, the worker should not work upon it, it is also without any substance, in the first instance,for the simple reason that if there is no cover, no worker would ordinarily take risk to work to inviteinjuries either afraid of employer or of losing daily wages to sustain him/herself. This helplesspitiable situation sustain of worker cannot be used to help out, salvage the situation of the Manager.Secondly, such written instructions by itself does not and cannot provide any protective guard andto cover the negligence both of the machine and Manager of not supplying the protective guard onthe machine. In fact, looking to the object of the Factories Act and in particular the provisioncontained in Section 2 the safety of the worker aimed at his absolute safety, trotting out any lameexcuses by providing 'ifs' and 'buts' in defence are just not available to the factory Manager or the



Owner to the prejudice of the interest of workers !! In substance, in view of the aforesaid discussion,no amount of instructions can be treated and permitted to be alternative to the Statutoryrequirement of taking protective measures in respect to the machine in question, can salvage thesituation for such negligence on behalf of the Occupier or Manager of the factory, if he fails todischarge his mandatory obligation, as warranted under Section 21 of the Act.

19. With reference to the ground No. 10, namely that because Bal Hamida admitted in hercross-examination that when her statement came to be recorded by the Factory Inspector, she wasunder the influence of sedatives (medicine), the same was not voluntary and correct. In fact, thelearned Magistrate should not have become doubtful whether such a statement was genuine or not.Taking into consideration firstly, the immediate telephonic information regarding injuries to BaiHamida, secondly, followed by Form No. 21 and that too thirdly, from no other person than theManager himself, evidence of injured, fourthly the same came to he recorded on the very next day,the point of time sedatic effect must have come to an end, there is no scope to doubt thetruthfulness, genuineness and voluntary nature of statement Exh. 12 of Bay Hamida.

20. With reference to ground No. 11 of acquittal, it may be stated that merely because the Doctorwho gave treatment to Bai Hamida has not been examined, that by itself cannot be said to be fatal tothe prosecution. The fact remains that the telephonic message as well as Form No. 2 wereimmediately sent by a person no other than the Factory Manager stating therein the date, time,place, machine and manner in which Bai Hamida received injuries, etc. etc. As a matter of fact.When the statute has cast obligation upon the proprietor to forward Form No. 21 pertaining tonotice of accident and dangerous occurrence, which contains as many as 12 columns, there was noquestion of raising any doubt regarding injury to Bai Hamida and for the said purpose of examiningthe Doctor !! Apart from this in case according to the respondent - accused - Bai Hamida was notinjured as alleged and was not sent to Sir Irvin Hospital then in that case, the definite challengeought to have been made in the cross-examination either of Bai Hamida or the complainant FactoryInspector. This would have been quite fair enough to otherside to examine Doctor who is otherwisenot required to be mechanically examined !! Thus, on the one hand not to put any question to theconcerned witnesses and thereby to give her fair opportunity to meet with the situation andthereafter on the other hand to assail and exploit the situation at the back of the witnesses is simplyunjust and unfair. Under the circumstances, this ground of giving benefit to the accused on theground of not examining the Doctor is indeed misconceived one, if not an excuse to acquit !! In fact,the columns provided in Form No. 21 clearly mandates giving (1) the name of the injured worker;(2) nature of injury, how she was injured; (3) when she was removed to hospital for treatment, etc.etc., therefore, it clearly rules out any doubt about the fact that Bai Hamida came to receiveparticular injury in a particular manner. In this view of the matter, it is indeed surprising as to whatmade the learned Magistrate doubt the prosecution case for not examining the Medical Officer,giving benefit to the respondent on that count !!

21. Thus, it could be seen that while trying a case under the Factories Act, which as a Special Act,with all anxiety for working class, casting certain obligations upon the Manager/Occupier of thefactory, the evidence of Factory Inspector and the injured witness is not supposed to be appreciatedin a manner like appreciating the evidence of prosecution witness in other criminal case. This basic



distinction between the ordinary criminal jurisprudence covering the offences under the ordinarycriminal law and the workmen welfare jurisprudence covering offences under the Special LabourLaws and in particular the Factories Act, is required to be clearly understood by all the learnedMagistrates before they embark upon appreciating the evidence. If this is not done, the Court wasbound to wander away and lost to injustice as it has happened in the instant case. In view of theaforesaid discussion, none of the eleven grounds of acquittal have any semblance of substance onthe basis of which an order of acquittal could have ever been recorded. In fact the aforesaid reasonsfor acquittal do not have any substance or strength, even that of the thinnest layer of varnish uponany furniture to resist just a scratch by nail even !!

22. That takes us now to another important question, viz., what should be the just and propersentence ? For this, we shall have to bear in mind the fact that the alleged offence took place as longback as on April 3, 1984 and thereafter, more than 9 years and around 7 months have elapsed !!!Further still, at the relevant time the unamended Section 92 pertaining to the general penalty foroffence read as under :

General penalty for offences :- "Save as is otherwise expressly provided in this Act and subject to theprovisions of Section 93, if in, or in respect of, any factory there is any contravention of any of theprovisions 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 any offence and punishable with theimprisonment for a term which may extend to three months or with find which may extend to fivehundred rupees or with both, and if the contravention is continued after conviction, with a furtherfine which may extend to seventy-five rupees for each day on which the contravention is socontinued."

Now taking into consideration the fact that the accident in question took place as far back as in theyear 1984, this Court is not inclined to sentence the respondent to undergo any term of thesubstantive imprisonment. The reason is for the belated trial and perverse approach of the learnedMagistrate after lapse of about 9 years it would not be proper to send accused to jail. Even thelearned A.P.P. has not made out a ground to send accused to jail after 9 years. His only anxiety was,if the accused is not sent to jail, it would serve a precedent. Now, there is no substance in thisapprehension voiced by the learned A.P.P. as on the point of sentence, there can never be precedent.In this view of the matter, taking into consideration the minimum sentence provided for the seriousbodily injuries, the respondent is sentenced to pay the statutory minimum fine of Rs. 500/-. It maybe clarified that but for the fact that the incident has become pretty stale, this Court sitting as trialCourt might have imposed even the substantive sentence of imprisonment. In fact, if the stringentand realistic view of such offences is not taken, it will indeed be not possible to awaken theManagers/Occupiers from the slumber of negligence, causing serious injuries and sometimes evencasting life of the helpless worker.

23. Incidentally, it may also be pointed out that the above Section 92 by now stands amended byvirtue of an Act 20 of 1987, which came into effect from December 1, 1987 and accordingly, if anyOffence is committed after December 1, 1987, the case of the accused would be governed by the saidamended Section 92 of the Factories Act, which reads as under :



"92. General penalty for offences : "Save as is otherwise expressly provided in this Act and subject tothe provisions of Section 93, if in, or in respect of, any factory there is any contravention of any ofthe provisions of this Act or of any rules made thereunder or of any order in writing giventhereunder, the Occupier and Manager of the factory shall each be guilty of any offence andpunishable with imprisonment for a term which may extend to two years or with fine which mayextend to one lakh rupees or with both, and if the contravention is continued after conviction, with afurther fine which may extend to one thousand rupees for each day on which the contravention is socontinued."

Provided that where contravention of any of the provisions of Chapter IV or any rule madethereunder or under Section 87 has resulted in an accident causing death or serious bodily injury,the fine shall not be less than 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 injury.

Explanation - In this section and in Section 94, "serious bodily injury" means an injury whichinvolves, 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, butshall not include, the fracture of bone or joint being fracture of more than one bone or joint) of anyphalanges of the hand or foot".

24. While parting, this Court feels that some observations are quite necessary for the purpose ofexpediting the criminal trials, and in particular, the cases under the Labour Laws. It appears that inthe present case, the offence took place on April 3, 1984 and the complaint regarding the same wasfiled before the learned Magistrate on June 18, 1984 thereafter accused filed appearance of hislearned Advocate Mr. B. R. Jani on July 1, 1986 and pleaded not guilty on the very day. Thereafter,the evidence of the Factory Inspector was recorded on November 11, 1987 and of the injured BarHamida came to be recorded on January 20, 1990 and thereafter, judgment and order was passedon February 5, 1992. Thus, the manner in which, right from filing of the complaint it took if about 8years to dispose of a case involving examination of only 2 witnesses is quite disgusting. I have beentold at the Bar by the learned A.P.P. and Mr. P. B. Bhatt, learned Advocate that for taking such anunduly, long course of 8 years many factors have contributed. They are

(i) The accused could not be served for about 2 years !!

(ii) Thereafter, the Court was busy with other works.

(iii) Strike calls in between the period by the learned Advocates.

25. Turning to the first ground, it is really unfortunate that the accused could not be served for sucha long period as of two years !! Had indeed the complainant himself taken direct service of thesummons then in that case, the accused could have been served earlier. It appears from the recordthat the summons was served through the police agency and that is the reason why it took sometime. In this regard, Mr. Bhatt submitted that service of the process through police agency alwaystakes some time for the simple reason that it, the first instance the summons are sent to the



concerned Police Station of the area in which offence took place. Now if the accused is not foundresiding in the said area then in the second place, the police forwards the summons to other PoliceStation where the accused ordinarily resides. Many, a times by the time such processes are servedupon the accused, the returnable date for the service of the summons given by the Court is over, andthereafter, summons are required to be returned unserved to the Court. Once again the samedifficulty arises, and because of such repeated cycles, the process gets delayed in being served uponthe accused. Therefore, in order to meet with such exigencies, ordinarily it is extremely desirablethat summons as far as possible rather as a matter of practice, should be entrusted to thecomplainant or any other responsible Officer from the office making him answerable for the service.In case, for whatever reasons, he has any difficulty in service of the summons, then in that case heshould be given necessary police assistance.

26. Now, turning to the second ground of delay in deciding the case, viz., that the Court was busy insome other proceedings is indeed a good ground, but unfortunately the Rojkam proceedings do notshow as to what work was/were being attended to by the said Court at the relevant time leaving notime for conducting the present case !! While writing the Rojnama if the particular case is not to betaken up because the Court was busy in conducting other case then in that case, the learnedMagistrate is expected to show the number of that particular case which he heard !! In any case, it ishardly required to be told that such cases where only one or two witnesses are required to beexamined under the Labour Laws, the learned Magistrate should see to it that they are given toppriority. The view that this Court is emphasizing has already been taken by tills Court, in case ofState of Gujarat v. Lalit Mohan, reported in 1990 (2) GLH 317 : and in case of State of Gujarat v.Sipoy Alambhai Jamalbhai, reported in 1990 (1) GLH 204.

27. Turning to the third point of strike calls, taking into consideration on the one hand - (1)inadequate number of Courts and the learned Judges; (ii) arrears/explosion of cases; (iii) cry ofdelayed justice resulting in justice starvation; (iv) the noble duty of the learned Advocates to helpout people seeking justice, speedy justice and thereby to uphold the dignity of the Constitution andon the other hand, the time has indeed come wherein the learned Advocates are required tointrospect and examine whether when Article 21, of the Constitution promises speedy justice andaccordingly, therefore, the speedy justice is one of the fundamental rights of the people, theindiscreet strike calls to that extent can be said to be unconstitutional ? Not only that but whetherthe same can as well amount to the contempt of Court ! These are the questions which requires to becoolly pondered over !! In a system/anatomy of "Rule of Law", Administration of justice is at theplace of heart. If it falls, nothing would survive. And no administration of justice anywhere in theWorld could successfully operate, function if the main artery made out of the legal profession(learned Advocates) loses its functional value !! This much is the extra-ordinary importance oflawyers in the system of "Rule of Law" as crusaders of Justice !! Earlier, we understand the better itwill be for all concerned.

28. The learned A.P.P. is directed to forward a copy of this Judgment to the Factory Inspector andthe respondent-accused. In view of the aforesaid discussion, this appeal shall have to be allowed andrespondent be directed to pay minimum fine of Rs. 500/-. Having regard to the fact that theincident in question wherein Bai Hamida suffered injuries as a result of which her left hand was cut



off right from the elbow during the course of her employment in the factory, prima facie, it is thefactory owner who is responsible to pay the fine. 29. In the result, this appeal by the State of Gujaratis allowed. The impugned judgment and order of acquittal is hereby quashed and set aside. Therespondent is directed to pay fine of Rs. 500/- on or before March 24, 1994, and in default toundergo S.I. for seven days. Accordingly, this amount of fine of Rs. 500/- shall have to be paid bythe Owner of Messrs. Oswal Valve Manufacturing Company, Jamnagar, as stated above, on orbefore March 24, 1994.



State of Gujarat vs Prafulchandra Somchand Shah on 22 November, 1993

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Transcript of State of Gujarat vs Prafulchandra Somchand Shah on 22 November, 1993