STATE Vs. CHINUBHAI HARIDAS SHETH

JUDGEMENT

(1.) THIS is an appeal against an order passed by the. Judicial Magistrate, First Class, Broach, acquitting the accused who were tried before him in Criminal Case No. 3148 of 1955 for offences under Section 304A and under Section 304A read with Section 109 of the Indian Penal Code.

(2.) IN the town of Broach there is a factory known as the Gopal Mills which manufactures cotton textiles. Accused No. 1 is the occupier of that mill, accused No. 2 is the manager of that mill, accused No. 3 was in charge as manager on July 4, 1955 -the date of the offence -and accused No. 4 is an engineer of the mill. In the factory a purification plant is installed. On July 4, 1955, a valve pit in the purification plant stopped functioning, and one Fakirji who was attending to the plant asked one Melia Dadla, a labourer, to enter the pit for opening the valve. Melia Dadla who entered the pit with a crow -bar was overpowered by poisonous fumes and became unconscious. Fakirji, finding that Melia Dadla had become unconscious, himself entered the pit and he was also overpowered by the poisonous fumes. Three other persons also entered the pit and they also lost consciousness. The Municipal Fire Brigade at Broach was then contacted, and one Mr. Tanna, Superintendent of the Fire Brigade, arrived on the scene. Mr. Tanna entered the pit where the five workmen were lying unconscious on the floor of the pit. He brought out two of them, but in the process, he himself was overpowered by the fumes and became unconscious. The other three labourers were also brought out, and all the five labourers and Mr. Tanna were rushed to the Civil Hospital. All the five labourers died, but Mr. Tanna survived. Thereafter a charge -sheet was lodged against Chinubhai Haridas Sheth, the occupier of the Factory, who will hereafter be referred to as accused No. 1 for offences under Sub -sections (3) and (4) of Section 36 of the Factories Act, 1948. Accused No. 1 was tried in Criminal Case No. 2890 of 1955 by the Judicial Magistrate, First Class, Broach, for those offences. The learned Magistrate acquitted accused No. 1 of those offences. Against the order of acquittal the State of Bombay preferred Criminal Appeal No. 365 of 1957. That appeal was heard by Mr. Justice Vyas and Mr. Justice Palnitkar on August 1, 1957 and the learned Judges set aside the order of acquittal passed by the trial Court and remanded the proceeding for investigation of a complaint under Section 101 of the Factories Act by accused No. 1 against S.D. Vashistha and Haribhai Tripathi -respectively the manager and engineer of the mill. We are informed at the Bar that special leave to appeal against the order of remand has been granted by their Lordships of the Supreme Court and the appeal is pending for decision.

(3.) THE learned trial Magistrate on the evidence held that it was not established that the four accused or any of them had neglected to take measures to remove the fumes of dangerous gases in the pit of the purification plant or had neglected to provide the workers with suitable breathing apparatus and belts. lie held that merely because accused No. 1 did not maintain the breathing and reviving apparatus and belts and ropes he was not on that account exposed to the penalty prescribed for breach of the provisions contained in Section 36(4) of the Factories Act. In his view, the obligation to provide suitable breathing apparatus and reviving apparatus was not absolute but arose only when permission was granted by the management to any worker to enter the pit or when a person actually entered the pit after permission and not till then, and it was not obligatory upon the occupier of the mill or the management to maintain the apparatus near the valve pit at all times. On that view he declared that the accused were not liable to provide the apparatus near the pit before any permission to enter the pit was granted, and for the consequences which arose out of the failure to maintain the apparatus near the pit the accused could not be held liable.