1980 P Cr (PLP)

State of Maharashtra v. Mears Syndicate Transport Co. Ltd. A I R 1964 Bom. 195; Rafique Hussain v. Islam-ud-Din P L D 1977 Kar. 183 Teseo Supermarket Ltd. v. Nattras (1971) 2 All E R 127 (H L) and Hayat v. Tire State 1971 P Cr. L J 541 ref. (e) Factories Act (XXV of 1934)

Ss. 26, 27, 31 & 71; Penal Code (XLV of 1860), S. 304-A and Criminal Procedure Code (V of 1898), S. 561-A-Whether petitioners were personally liable for non-compliance of provisions of Factories Act and rules thereunder and any other law governing running of factory-Whether such non-compliance by both or either of petitioners was of such a high degree as to show disregard for life and safety of others and was direct and proximate cause of death-Every non- compliance of statutory duty does not make a person liable under S. 304-A-emission must be so gross or of such a high degree as to be criminal and sufficient to show disregard for life and safety of others -Such questions, held, can only be answered after prosecution and defence evidence recorded-Mere fact that petitioners are Officers of a Corporation does not give them immunity in respect of offence charged-Petition under S. 561-A dismissed in circumstances of case. (f) Peed Code (XLV of 1860)

S. 304-A-Contrbutory negligence--Contention that worker was wearing along khes which got entangled in worn: as such he was guilty of contributory negligence and not petitioner-Held, contributory negligence cannot relieve petitioners of their liability-Such contention may be urged for grant of lesser sentence. N: Pervez A. Butter for Petitioner. Khalil Ramday, Asstt, A.-G. for the State.. Date of hearing: 6th May, 1979. This is a petition under section 561-A, Cr. P. C. by Muhammad Ayub and Nazir Ahmad petitioners for quashment of criminal proceedings pending against them under section 3N-A, P. P. C., in the Court of Mr. Muhammad Akram Cheema, Magistrate Ist Class, Ferozewala. 2. The brief facts of the case are that on 12-1-1978 one Muhammad Siddique, an employee of Neamat Flour Mills Limited, situate on Lahore/ Sheikhupura road, died in the said flour mill as a result of his khes (chador) getting entangled in the worm of the machinery, the said worm not being covered. It was stated in the F.I. R. that if worm and haudi of the mill had a proper cover, the accident would not have occurred and that in addition thereto the said deceased workman who had been employed in the flour mill was not property trained in his duties and even otherwise no responsible. Officer was present around the machinery supervising the working of the mill. It was also alleged that the death of the workman was the result of the petitioners or such other persons who had failed to provide a proper cover to the words and the haudi and had taken into service the deceased who was not properly trained for his duties. Notwithstanding the fact that the heirs of the said deceased workman were paid compensation by the employer-company under the Workmen's Compensation Act; 1923, the Police lodged a challan against Muhammad Ayub and Nazir Ahmad, the Managing Director and Miller of the said flour mill under section 304-A, P. P. C. Being aggrieved by the challan lodged by the Police and the charge framed by the trial Magistrate, the petitioners preferred the present petition for quashment of the criminal case instituted against them, which is now before me for disposal. 3. The learned counsel for the petitioners made a number of submis sions. First, he submitted that the covering of the-worm or the 'haudi of the mill was not compulsory according to law and, therefore, there was no illegal omission, that is to say, statutory omission, on the part of his clients. It was submitted that the words 'negligent act' appearing in section 304-A, P. P. C. included an illegal omission and not an ordinary omission and in this connection the definition of the word 'act' as appearing in section 3(2) of the Punjab General Clauses Act was referred to. It was urged that an illegal omission only meant an omission to comply with statute law and that as there was no law which compelled the worm and the haudi of the mill to be covered, there was no illegal omission on the part of his clients. Second, it was submitted that the death of Muhammad Siddique deceased was not the direct result of the negligent act of the petitioners and unless it was the approximate and immediate cause of their omission, they were not liable. Third, it was submitted that a corporation, its directors and/or servants were not liable under the criminal law if the offence prescribed a sentence of imprisonment. In this connection State of Maharashtra v. Messrs Syndicate Transport Co. Ltd. (A I R 1964 Bom.195), and para. 758 of Halsbury Laws of England, Volume VII (4th Edition) were cited. And fourth and last, it was submitted that as the deceased Sadiq was wearing a long khes (cheddar) which got entangled in the worm, as admitted in the F. I. R., he was guilty of contributory negligence and, therefore, the petitioners were not liable. In the light of these cumulative facts, it was prayed that the criminal. case deserved to be quashed. 4. The learned Assistant Advocate-General, who appeared for the State and strongly opposed the petition, contended that under sub-clause (iii) of clause (d) of subsection (1) and subsection (2) of section 26, subsection (1) of section 27 and clause (b) of subsection (1) of section 31 of the Factories, Act, 1934, the petitioners were required to fence all rotating and revolving machinery, including worms and shafts, and they were duty bound to employ workmen as were properly trained and equipped in their duties and who were clad in tight fitting clothes whilst on duty, which they did not do. 'He referred to rule 70 of the Factories Rules under which no person engaged in any work within reach of unfenced transmission machinery was permitted to work whilst wearing loosely fitting clothes. He also submitted that under sec tion 60 of the Factories Act, both the occupier and the manager of the factory were liable for due compliance of the provisions of the Act. In the instant case, since the factory was a flour mill; the miller was obviously the manager and in view of section 2 (f) of the Factories Act, the managing director was the occupier as he had the ultimate control over the affairs of the factory. In these circumstances, the involvement of both the petitioners, who were the miller and the managing director of the mill, was justified in law. As regards the question whether death arose as a result of the approximate and immediate cause of the petitioners' negligence, it was submitted * that the said matter was a matter of evidence and could not be gone into at this stage. As regards the objection that a corporation and its directors were not liable to criminal proceedings if the offence imputed to them carried a sentence of imprisonment, it was submitted that the corporation, as such, was not arrayed as an accused,-but that petitioners Nos. 1 and'2, who were its managing director and miller respectively, were arrayed and this was permissible in law. As regards the objection that the petitioners were not liable in view of the contributory negligence of the due, it was urged that this ipso facto did not relieve the petitioners from their criminal liability. In these circumstances, it was prayed-that there was no case for interference and the petition deserved to be dismissed. 5. The able arguments of both the learned counsel for the petitioners and the learned Assistant Advocate-General, have engaged my attention deeply. The first question which arises is whether the 'negligent act' referred to in section 304-A, P. P. C., in view of the definition of the word 'act' as contained in section 32 of the Pakistan Penal Code and the principle laid down in section 43 of the said Code, only covers failure to perform statutory duties or also failure to perform duties imposed by contract and those which the common law recognises as arising out of the relation in which persons stand towards each or towards the public. The English law does not recognise any difference between a person guilty of gross negligence on whom the law imposes a statutory duty and those on whom there is no statutory duty but on whom contract or common law imposes a duty, for the purposes of manslaughter. In Pakistan, section 32 of the Penal Code specifically draws attention to the fact that in every part of the Penal Code. except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions and section 43 of the said Code which defines the word 'illegal', clearly states that it is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action. The words of section 43 not only cove offences and acts prohibited by law, but are wide enough to cover cases of breach of contract and those arising out of common law or usage where duty is voluntarily accepted, as in the case of a contract, or is imposed on of the relation in which persons stand towards each other or towards the public to do something and the person criminally omits to perform the duty, for each of these cases furnish a ground for a civil action for one of ore relief. Beaumont, C. J. in Ganpat Subrao Kashyapt v. Emperor (A I R 1934 Bom.202), held that it was difficult to impose any limitation on the very wide words of section 43 and that in his opinion, the section covered both breach of contract and tort. Tek Chand J. in Om Parkas Tilluk Chand v. The State (A I R 1959 Pb.134) held that criminal law fastened a. liability on persons who omitted to perform the duty required by law such as to provide food, clothing, shelter, or medical aid to another. These duties arise out of common law, though some have received statutory recognition. A person can be under a legal duty whether by contract or by law, or by the act of taking charge, wrongfully or otherwise, of another person to provide the necessaries of life for such other person, and can be criminally responsible, if death is caused by the neglect of that duty. (See Stephen's Digest of Criminal Law, 5th Edition, Article 234). The criminal liability of such a person is, however, conditional on his capacity, means and -ability to perform the legal duty. The case of Om Parkash Tillak Chand inter alia illustrates the principle that a criminal omission to perform a duty that arises out of common law, can also be culpable; and tortious wrongs are violation of common law duty. In Emperor v. Fazalur Rehman (A I R 1930 Pat.593), where a mukhtar was prosecuted for extortion for having threatened tire prosecutor to put questions to him and the ladies of his household which were scandalous and indecent in order to insult and annoy the prosecutor, unless the prosecutor paid some money, Courtney- Terril, C. J., held that as the Court was otherwise forbidden to permit scandalous and indecent questions being put to witnesses under sections 151 and 152 of the Evidence Act, the mukhtar had by threatening to put such questions threatened to do an act prohibited by law all these cases, therefore, show that the expression `negligent act' in section 304-A, Cr. P. C. covers cases where either under contract, a person has taken upon himself a duty, or where statute law, common law or usage imposes a duty upon person, tending to the protection and preservation of life and that person through utter disregard for the life and safety of others, criminally omits take perform that duty or performs it with gross negligence, and thus causes the death of another. A higher degree of negligence than ordinarily required in civil cases is necessary to render a person guilty under section 304-A. P. P. C. In these circumstances, the objection of the learned counsel for the petitioners that the expression `negligent act' in section 304-A, P. P. C. only covers cases of omission to perform a statutory duty, is not correct, In the instant case, the gravamen of the charge is that the petitioners we guilty in not keeping the worm and the haudi of the mill properly covered and otherwise employing the deceased's services, even though he was not properly equipped and trained for the job and did not wear tight fitting clothes.. Sections 26, 27 and 31 of the Factories Act, 1934, have been pressed into service by the learned Assistant Advocate-General in this connection. However, the question whether the company/mill or its employees (and, for that matter, the petitioners in particular) were legally bound to keep the worm or the 6audi covered and to only employ persons who were duly equipped and trained for the job and were clad in high fitting clothes, is a matter which relates to evidence and till such time that evidence is recorded in the matter, it cannot be said whether the petitioner were personally responsible for the performance of any statutory duty and. if so, whether they were guilty. of any illegal omission thereof. As the occupier and manager, prima facie they appear to be liable, but they can show under section 71 of the Factories Act, 1934, who actually was, if the were not so. In this view of the matter, the first objection of the learned counsel for the petitioners cannot be taken into consideration by me at this stage for purposes of deciding this petition. 6. As regards the second objection taken by the learned counsel for the petitioners, the position is .the same as that relating to the first. Till evidence is recorded it cannot be determined whether death was the direct result of the negligent act or omission of the petitioners and whether such act or omission was the proximate and immediate cause of the death. 7. As regards the third contention raised by the learned counsel for the petitioners, namely, that a corporations, its directors and servants cannot tried for offences which only involve the punishment of imprisonment, a since the offence under section 304-A, P. P. C. only involves the sentence of imprisonment, the two petitioners cannot be tried at all for the said offend. I think the law is fairly well settled now. Excepting offences which can only be committed by individuals (such as, murder, treason, bigamy, rape etc.) o which only provide a punishment of imprisonment, a company can be indicted for criminal acts or omissions of its directors or authorised agents or servants, if it can be shown that they have acted or purported to have acted under the authority of the company or in pursuance of its aims and objects, In this connection, State of Maharashtra v. Syndicate Transport Co,, Rafique Hussain v. Islam-ud-Din (P L D 1977 Kar. 183) and Tesco Supermarket Ltd. v Nattras ((1971) 2 All E R 127 (H L)) may be referred. One thing is certain, namely, that the corpora tion is not arrayed as an accused in the present case. However, directors and servants of a corporation can be indicted for their criminal acts or omission. See Hayat v. The. State (1971 P Cr. L J 541). As `persons' they are liable, unless any special exception excludes tem from liability, in view of their capacity as such directors ' and servants. It is for the trial Court to find whether petitioner No. 1, as the Managing Director of the flour mill, had the ultimate control of the same, and whether petitioner No. 2, as the miller, was in the established sense a manager of the said mill, within the meaning of section of the Factories Act, so that both were personally liable for the compliant of the provisions of the Factories Act and the rules thereunder and of any other law governing the running of the said factory and whether the no compliance of any statutory act or rule by both or either of the petitioners was of such a high degree as to show disregard for the life and safety of/ others and was the direct and proximate cause of the death. Not every non-compliance of a statutory duty would make a person liable under se ction 304-A, P. P. C. The omission must be so gross or of such a high degree as to be criminal and sufficient to show disregard for the life and safety others. All these questions can only be answered after the prosecution and defence evidence is recorded. The mere fact that the petitioners are Officers of a corporation does not give them any immunity in respect of t offence charged. 8. As regards the last contention of the learned counsel for t petitioners, namely, that as Sadiq deceased was wearing a long khes (chaddar) which got entangled in the worm, he was guilty of contributory negligence and, therefore, the petitioners are not liable, contributory negligence cannot relieve the petitioners of their liability. At best, it may be urged for t grant of a lesser sentence. 9. For the foregoing reasons, I cannot interfere in this case section 561-A, Cr. P. C. This petition is, therefore, dismissed.