In the matter of an application under section 482 of the
Code of Criminal Procedure.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.8497 of 2009
Kumar Satya Prakash
…. …. Petitioner
Versus
State Of Bihar
…. …. Opposite Party
Appearance :
For the Petitioner : Mr. Arun Kumar Prasad, Advocate
For the Opposite Party : Mr. Nityanand Tiwary, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
——————
This petition under section 482 of the Cr. P.C. has been filed on
behalf the petitioner for quashing order dated 3.1.2009 passed by the
learned Sessions Judge, Saran at Chapra in Cr. Revision no. 107/2008 and
order dated 5.2.2008 passed by Judicial Magistrate, Ist Class, Saran at
Chapra in Trial no.2599/2008.
2. The brief fact of the case, is that Factory Inspector, Chapra
filed a written complaint petition on 29.9.2005 before the learned Chief
Judicial Magistrate Saran at Chapra under the provision of Factories Act,
1948 against the petitioner mentioning therein that the petitioner has
violated provision of section 6 of the Factories Act, 1948 read with rule 7
of the Bihar Factory Rule, 1950 which is punishable under section 92 of
the Factories Act, 1948. The above stated Factory Inspector mentioned in
his written complaint that on 5.7.2005, he inspected premises of M/s
Pankaj Industry situated at Digwara District Saran and at the time of
inspection, he found 3 to 4 labourers working in the said factory. In
course of his inspection, he found that licence fee and renewal of the
licence for the years 1992, 1994 to 2005 had not been deposited and the
aforesaid factory was being run without renewal of the licence and
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without having valid licence. The petitioner was proprietor of the
aforesaid factory. After inspection, the Factory Inspector issued notice to
the petitioner but the petitioner did not respond to the aforesaid notice and
subsequently, the above stated Factory Inspector filed written complaint
in the court of Chief Judicial Magistrate Saran at Chapra as stated above.
3. The petitioner filed a petition in the court of Sri D.L. Prasad,
Judicial Magistrate, lst Class, Saran in Trial no. 2599/2008 praying therein
to drop the proceeding and discharge him from aforesaid Trial no.
2599/2008. The aforesaid petition was rejected by Sri D.L. Prasad, Judicial
Magistrate, lst Class, Saran vide order dated 5.2.2008 which is in challenge
in this petition. After rejection of the above stated petition, the petitioner
preferred Cr. Revision no. 107/2008 in the court of learned Sessions Judge,
Saran against the order dated 5.2.2008 passed by Sri D.L. Prasad, Judicial
Magistrate, lst Class, Saran in Trial no. 2599/2008 but the learned Sessions
Judge, too, dismissed the aforesaid revision passing the impugned order
dated 3.1.2009 which is also in challenge before this court.
4.This court gave several adjournments to the State to file
counter affidavit but no counter affidavit was filed on behalf of the State
and subsequently, petition under section 482 of the Cr. P.C filed on behalf
of petitioner was admitted by this court vide order dated 12.1.2011.
5. Learned counsel for the petitioner challenged the impugned
order on the ground that admittedly, petitioner was running a saw mill on
the alleged date of the occurrence and the premises of saw mill of the
petitioner was inspected by the Factory Inspector. It is also contended by
him that the petitioner had taken valid licence from the Forest department
and Factory Inspector had no power to make search and seizure in respect
of saw mill of the petitioner. It is further contended by him that after
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passing of Bihar Saw Mills (Regulation) Act, 1990, the jurisdiction of
Factory Inspector has already been seized and only officials of the Forest
department could have inspected the premises of saw mill of the
petitioner. To fortify his above stated contentions, learned counsel for the
petitioner referred section 24 of the Bihar Saw Mills (Regulation) Act,
1990.
6. On the other hand, learned Addl. Public Prosecutor
appearing for the State submitted that Bihar Saw Mills (Regulation) Act,
1990 has been enacted to protect forest whereas Factories Act is for the
purpose of regulating and running of the factories and the Factories Act
has been enacted for the purpose of welfare of the labourers engaged in the
factories and, therefore, section 24 of the Bihar Saw Mills (Regulation)
Act, 1990 does not operate as a bar in application of the Factories Act,
1948.
7. Having heard the rival contentions of both the parties, I have
gone through the record as well as relevant provisions of the Factories Act
as well as Bihar Saw Mills (Regulation) Act, 1990.
8. Here, I would like to refer section 24 of the Bihar Saw Mills
(Regulation) Act, 1990 which runs as follows:-
“Other Act and laws not to apply to saw mill or
saw pit – nothing contained in any other Act or law,
rule, order or any other thing having a force of law in
any area of the State shall apply to the saw mill and
saw pit and sawing in respect of matters for which
provisions are contained in this Act”.
The above Bihar Saw Mills (Regulation) Act, 1990 was
published in Bihar Gazette on 7.12.1990. The aforesaid Act has been
enacted to make provision for regulating in the public interest the
establishment and operation of saw mills and saw pits and trade of sawing
for the protection and conservation of forest and the environment.
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Section 7 of the aforesaid Act relates to grant, renewal,
revocation or suspension of licence. The aforesaid section 7 of the Bihar
Saw Mills (Regulation) Act, 1990 prescribes for grant of licence, renewal,
revocation or suspension for running a saw mill. Section 8 of the aforesaid
Act gives power to licensing officer or any other person authorized by the
licensing officer in this behalf for entry, inspection, search, seizure etc. in
respect of any saw mill or saw pit. Section 2(d) of the above stated Act
define the word licensing officer and says that licensing officer means a
licensing officer appointed under sub-section (1) of section 3 of the Bihar
Saw Mills (Regulation) Act, 1990. Section 3 of Bihar Saw Mills
(Regulation) Act, 1990 says that the State Government may, by
notification, appoint an officer not below the rank of Divisional Forest
officer to be licensing officer for the purpose of this Act and define the
local limits within which licensing officer shall exercise the powers
conferred and performed duties imposed on him by and under this Act.
9. In this connection, section 5 of the Bihar Saw Mills
(Regulation) Act, 1990 is also relevant. Section 5 of the above stated Act
says that on and from the appointed day- no person shall establish a saw
mill or saw pit except under the authority and subject to the conditions of a
licence granted in that behalf under this Act and no person shall operate a
saw mill or a saw pit in existence on the said date, unless he is granted a
licence in that behalf under this Act on an application made by such person
within a period of thirty days from such date. Section 2(a) of the above
stated Act says that appointed day means a date appointed under sub-section
(3) of section 1.
10. The State Government on 27.4.1993 issued notification la0 ou
fodz; 33/93- 1929–appointing Divisional Forest officer, Saran as licensing
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officer for Saran division. Therefore, after publication of the aforesaid
notification only Divisional Forest officer had got jurisdiction to issue
licence for saw mill and the Divisional Forest officer had got jurisdiction to
make inspection, search and seizure of a saw mill.
11. In the present case, Factory Inspector inspected the
premises of saw mill of the petitioner on 5.7.2005 and found some
irregularities such as non-renewal of licence and running of saw mill
without having any valid licence but on the above stated date Factory
Inspector had got no power to inspect saw mill of the petitioner in view of
application of Bihar Saw Mills (Regulation) Act, 1990 and the power of
above stated Factory Inspector had already been seized after application of
the above stated Act. Apart from this, section 24 of Bihar Saw Mills
(Regulation) Act, 1990 bars the application of Factories Act, 1948 in
respect of saw mill and saw pit.
12. On the basis of the aforesaid discussions, I am of the opinion
that not only the learned Judicial Magistrate, Chapra but also the learned
Sessions Judge, Chapra committed an error in not dropping the proceeding
against the petitioner which has been initiated on the basis of report of
Factory Inspector after coming into force of Bihar Saw Mills (Regulation)
Act, 1990.
13. In the aforesaid circumstances, the continuance of
proceeding against the petitioner is an abuse of process of the court and, in
my view, it must be quashed.
14. Accordingly, order dated 3.1.2009 passed by the learned
Sessions Judge, Saran at Chapra in Cr. Revision no. 107/2008 and order
dated 5.2.2008 passed by Judicial Magistrate, Ist Class, Saran at Chapra in
Trial no.2599/2008 are, hereby, quashed with direction to the Judicial
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Magistrate, Saran to pass a fresh order on the above stated petition of the
petitioner in the light of the observations given in this order.
15. In the aforesaid manner, this quashing petition stands
disposed off.
The Patna High Court
The 30th September,2011
Shahid/ NAFR
Shahid ( Hemant Kumar Srivastava,J)
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