Gauhati High Court
Kishore Prasad Saraf And Anr vs The State Of Assam on 20 May, 2026
Page No.# 1/15
GAHC010005372012
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./231/2012
KISHORE PRASAD SARAF and ANR.
S/O LT. KEDAR NATH SARAF R/O JALAN NAGAR NORTH, P.O. and P.S.
JALAN NAGAR, DIST. DIBRUGARH, ASSAM,
2: SRI ASHOK SOOD
S/O LT. RAMSARUP SOOD
R/O SOUTH JALAN NAGAR
P.O.
P.S. and DIST. DIBRUGARH
ASSA
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR.P J SAIKIA, MR.A K GUPTA,MS.J SAIKIA
Advocate for the Respondent : , PP, ASSAM,
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BEFORE
HON’BLE MRS. JUSTICE MITALI THAKURIA
Advocates for the Petitioners : Mr. K. J. Saikia.
Advocates for the Respondent : Mr. P. Borthakur,
Addl. P.P., Assam.
Date on which judgment is reserved : 26-03-2026
Date of pronouncement of judgment : 20-05-2026
Whether the Pronouncement is of the
operative part of the judgment? : ___N/A_____
Whether the full judgment has been
pronounced? : ___Yes_____
JUDGMENT & ORDER (CAV)
Heard Mr. K. J. Saikia, learned counsel for the petitioners and Mr. P.
Borthakur, learned Additional Public Prosecutor, Assam for the State.
2. This appeal has been filed under Section 401/397 CrPC challenging the
judgment and order dated 10.02.2012, passed by the learned Additional
Sessions Judge (FTC), Dibrugarh in Cri. Appeal No. 17(3)/2010 affirming the
conviction passed by the learned Chief Judicial Magistrate, Dibrugarh vide
judgment and order dated 16.08.2010, passed in G.R. Case No. 205 c/2006.
3. The brief facts of the case is that on 16.10.2005, the workman
Dukhiram Lohar while was doing the work of feeding green tea leaves into
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the Rotervane machine on first bent of C.T.C., in Jalan Nagar South Tea
Estate Factory fell down inside the said Rotervane machine and died
immediately. The matter was immediately informed to the Inspector of
Factories, who made an enquiry and accordingly came to the conclusion that
the occupier and the manager did not take any measure for covering or
fencing the open space of the floor under which the Rotervane machine was
installed and as a result of which the worker Dukhiram Lohar fell down and
died.
4. Thereafter, the Inspector of Factories filed his Offence Report before the
learned CJM, Dibrugarh and accordingly a complaint was registered under
Complaint Case No. 205c/2006.
5. The petitioners being the Occupier and Manager, after the death of the
deceased had paid Rs. 1,39,614/- to the wife and dependents of the
deceased under the provisions of Workmen’s Compensation Act and funeral
expenses of the deceased were also paid to the wife of the deceased. More
so, wife of the deceased was also given employment in the Tea Estate.
6. The Court accordingly took cognizance of the offence under Section 92
of the Factories Act and also under Rule 3 of Sub Section 6(1) and Section
32(a) and Section 33(1) of the Factories Act against the petitioners. On
receipt of summons they accordingly appeared before the Court and the
particulars of offence was also explained to the accused petitioners, to which
they pleaded not guilty and claimed to be tried.
7. During trial, the prosecution has examined four witnesses and defence
also adduced the evidence of two witnesses. Petitioners were also examined
under Section 313 CrPC to which they have also pleaded not guilty.
Thereafter, hearing the arguments submitted by the learned counsel for the
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parties, the learned Trial Court vide its judgment and order dated 16.08.2010
had convicted the petitioners under Section 92 of the Factories Act and
sentenced them to undergo S.I. for 2 years along with a payment of
compensation of Rs.50,000/- each.
8. On being aggrieved and dissatisfied with the said judgment and order
passed by the learned CJM, Dibrugarh, the petitioners preferred an appeal
before the learned Sessions Judge, Tinsukia, which was transferred to the
Court of learned Additional Sessions Judge (FTC), Dibrugarh which was
reregistered and numbered as Crl. A. No. 17(3)/2010. After hearing the
submission made by the learned counsel for the parties, the learned
Appellate Court vide its judgment and order dated 10.02.2012 affirmed the
conviction and modified the sentence to the extent for payment of
compensation of Rs.50,000/- each by the petitioners.
9. On being aggrieved and dissatisfied with the judgment and order
passed by the learned Appellate Court, this revision petition has been
preferred by the petitioners.
10. Mr. Saikia, learned counsel for the petitioners submitted that both the
Courts below committed gross illegality and material irregularity and did not
pass the order under the provision of law and for which the judgments are
liable to be set aside and quashed.
11. He further submitted that the learned Trial Court had passed the order
without appreciating the evidence of all the witnesses in its true perspective
and recorded the order of conviction against the petitioners. The learned Trial
Court as well as Appellate Court had failed to consider the fact that there is
no ingredient to constitute any offence under Section 92 of the Factories Act
and thus, the judgment passed by the learned Appellate Court is highly illegal
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and liable to be set aside.
12. He submitted that Rule 3-A provides for obtaining previous permission
from the Chief Inspector of Factories for installation of additional machineries
exceeding the horsepower already installed in the factory. In the instant case,
there being no such exceeding of the permitted horsepower in the factory
and approved Surveyor himself took the plan to the Inspector of Factories on
15.07.2005 in a routine manner, which was not rejected and as such the
permission even though not required under the law was not rejected and
hence it was presumed to have been granted under Section 6(2) of the Act.
But the learned CJM, Dibrugarh while passing the order failed to consider that
Exhibit-Kha was sent on 15.07.2005 and held that the machine was working
without approval. But the provision was not taken into consideration by the
learned CJM as well as by the learned Appellate Court, while passing the
judgment and order of conviction.
13. Mr. Saikia, learned counsel for the petitioner further submitted that the
learned Trial Court also failed to scrutinize the evidences on record in its true
perspective and failed to consider the fact that there was no negligence and
fault on the part of the petitioners as specific protective measures required to
be taken on the platform for operating the machine had been taken which
were approved by the Surveyor of the Inspector of Factories.
14. DW-2 also categorically stated in his evidence that “whatever guard is
required to be taken on the machines were there”. But inspite of all these the
workman died due to an accident which was also confirmed by the Magistrate
and police while conducting enquiry immediately after the accident.
15. The learned CJM only relied on the offence report and the statement of
PW-2, Inspector while passing the judgment holding that, at the time
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incident, the mouth of the Rotervane machine was open and no safety
measure was taken by the manager or occupies of the said company. But the
statement of PW-2 is unreliable and only on the basis of some presumption,
PW-2 had made such statement before the Court.
16. It is further submitted by Mr. Saikia, learned counsel that the petitioner
No.1 was considered to be the occupier of the Jalan Nagar Tea Estate without
any evidence in record wherein it is categorically deposed by the accused
petitioner No.2 that Sri Ashok Sood that the petitioner No.1 was one of the
Executive Director of the Estate and resides therein who is/was neither the
owner nor the occupier within the meaning of Section 93 of the Factories Act
and as such, the conviction so far as petitioner No.1 is concerned is wholly
illegal and not tenable in the eye of law.
17. He further submitted that two month prior to the said incident prayer
for approval was made before the authority concerned and it was deemed to
be approved as the horsepower was not exceeding for installation of the said
Rotervane Machine in the company. The machine was also properly guarded
with fencing and the unfortunate incident had happened only accidently while
the deceased was working in front of the Rotervane Machine.
18. He further submitted that the learned Trial Court had come to its own
finding without any supportive evidence and without considering the evidence
of the DWs wherein it was stated that the machine was properly guarded and
the incident had happened unfortunately. At the time of arguments, learned
counsel for the petitioner also stressed on the term occupier as per Section 2
sub Section (n) of the Factories Act and also emphasized on Rule 3 A of
Assam Factories Rule. He further submitted that as the application was made
two months prior to the date of incident, though the application for approval
was not acted upon, it can be deemed to be approved from the authority
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concerned and at best it can be termed as an accident, where there was an
unfortunate death of a worker while he was working in the factory.
19. To substantiate the plea the learned counsel for the petitioner also
relied on a decision of this Court in the case of Durga Dutta Tiwari Vs.
State of Assam and another reported in 2004 (supp) GLT 401 and
basically emphasized on para 5, 6 and 7, which read as under:
“5. Admittedly, the sole prosecution witness P W1 was not present when the
incident took place. As per his own statement, he visited the site subsequently and
on the basis of the statement made by the workers and other witnesses, he
submitted the offence report. Surprisingly enough, none of these persons or
witnesses were cross examined by the prosecution during trial and when the lacuna
was brought to the notice, the same was brushed aside without any finding.
Admittedly, the P.W. 1”s evidence is hearsay evidence as he learnt the incident from
other witnesses and it is not admissible in evidence in criminal trial.
6. The trial court has acted on the evidence of P.W.-1 wherein it was stated that the
rope used for lifting the portion of the chimney was not of required standard or it
was not of standard specification etc. Admittedly, none of these articles were
examined by the experts and there is no report of the experts to show that the said
accessories/tools used for the purpose of lifting the chimney were not as per
specifications required u/s 29 of the Factories Act. Further, the complainant did not
produce these articles before the court to show that these were not in conformity
with the required specification. The mere statement of the complainant that he
found the rope etc. to be of not required standard or quality cannot form basis for
conviction as he arrived at the place of occurrence subsequently. It seems that the
complainant was in hurry in taking up matter in discharge of his duties as required
under the Act. We may refer to the provisions of Section 91 of the Factories Act
which provides that an Inspector may at any time take samples and get the things
examined or analyzed by any Government Analyst. Admittedly, P.W.-1 did not
perform his duties as required.
7. In this case, we find that there is another aspect of the matter which was given
complete go-bye by both the trial court as well as the appellate court. As per the
prosecution story itself the said chimney was dismantled for the purpose of
repairing which means that the chimney was lifted and brought to the ground for
the purpose of repairing. It seems that during the process of dismantling and lifting
of the chimney, there was no mishap. Further, we find from the P.W.-1”s own
evidence that one portion of the chimney was successfully installed and the
accident took place when the second part of the chimney was being placed. All
these things go to show that the apparatus used for the purpose of lifting the
chimney was of required strength and we find force in the submission that the
incident was because of an accident only and there was no negligence on the part
of the management. There cannot be presumption of things that the rope used was
not of required specification etc. The burden was on the prosecution and
admittedly, the prosecution has failed to discharge the same.”
20. He cited another decision of this Court in the case of Wimco Limited
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and Another Vs. Union of India and others reported in 1994 2 GLR 37
wherein discussion has been made in regards to the term “occupier” under
Section 2(n) of the Factories Act and basically he relied on para 9 (iii) of the
said judgment which read as under:
“9 (iii) The only question which requires determination is whether any person other
than the director of the company can be an occupier under Section 2(n) of
the Factories Act and to that question our answer is in the affirmative. In our
judgment, the Inspector of Factories was clearly in error in claiming that after
amendment of Section 2(n) of the Factories Act no one except a director of the
company can be an occupier.”
21. He further submitted that in the said judgment it has also been held
that a bare reading of Section 2(n) as amended will show that the material
part of the section defining an occupier remains unaltered and so a person
who has the ultimate control of the factory can be nominated as the occupier
and it also must be borne in mind that always a director may not be the
ultimate control of the factory.
22. Citing the above referred judgment, learned counsel for the petitioners
submitted that the judgment and order passed by the learned Trial Court as
well as by the learned Appellate Court is liable to be set aside and quashed.
23. Mr. Borthakur, learned APP submitted that the scope under the
revisional jurisdiction is very limited, wherein there was concurrent findings of
the learned Trial Court as well as the Appellate Court. He further submitted
that before installation of the Rotervane Machine, it is seen from the evidence
as well as from the observation made by the learned Trial Court as well as by
the Appellate Court that even there was no application pending for approval
before installation of the Rotervane Machine as required under the Factories
Act.
24. Mr. Borthakur, learned APP submitted that both the accused petitioner
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Nos. 1 and 2 are the Director and Managing Director and thus, they can be
termed as occupier of the company who is responsible for all affairs of the
factory.
25. From the evidences of the PWs it is seen that there was no safety
measures taken at the time of installation of the Rotervane Machine and in a
very unsafe condition the workers were working with the Rotervane Machine
and the mouth of the Rotervane Machine was also found to be open at the
time of the alleged incident. Mr. Borthakur, accordingly submitted that no
illegality or irregularity has been committed neither by the learned Trial Court,
nor by the learned Appellate Court, who arrived at a concurrent finings and
hence, no interference is called for from this Court.
26. Heard the submissions made by the learned counsel for the parties and
I have also perused the case record, the evidences on record as well as the
judgments passed by the learned Trial Court as well as by the learned
Appellate Court.
27. It is the case of the petitioners that all safety measures were taken at
the time of installing the Rotervane Machine and as per Rule 3-A the previous
permission is required from the Chief Inspector of Factories for installation of
additional machineries exceeding the horse power already installed in the
Factory. But in the instant case there was no such exceeding of permitted
horse power in the factory approved by the Surveyor himself. However, in a
routine manner an application was submitted which was not rejected and
hence it can be well presumed that it has been accepted or the permission
was approved and accordingly, the Rotervane Machine was installed though
there was no proper approval from the Chief Inspector of Factories. It is the
further case of the petitioners that the learned Trial Court had passed the
order of conviction which has been upheld by the learned Appellate Court
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only on the basis of the statement made by PW-2, but the learned Trial Court
did not consider the evidence of DW-2, who categorically deposed before the
Court that the Rotervane Machine was well guarded at the time of the
incident and it had happened merely due to an accident.
28. Mr. Saikia, learned counsel for the petitioners also raised the issue in
regards to the terms ‘Occupier’ and basically stressed that both the petitioner
Nos. 1 and 2, specially the petitioner No.1 cannot be considered as the
occupier of the factory and he was only an Executive Director of the Estate.
But from the investigation report and the evidence of the PW-2 it reveals that
there was wooden floor with three sides fencing and one side was open for
lifting tea leaves to the floor from below. The Rotervane Machine was under
the wooden floor and the mouth of the Rotervane Machine was installed on a
squire hole on the floor and there is no evidence that the mouth of the
Rotervane Machine was guarded by any fencing.
29. From the evidence of the eye witnesses also it is seen that there was no
fencing and safety guard on the hole of the wooden floor and the mouth of
the Rotervane Machine in open condition without any fencing and while the
deceased was working with the Rotervane Machine, giving tea leaves on the
mouth of the Rotervane Machine, the unfortunate incident had happened as
there was no fencing over the Rotervane Machine as a protective measure
and hence, suddenly slipped and his head got crushed in the Rotervane
Machine and he died instantly.
30. Further, it is the claim of the petitioners that they are not at all
responsible for the accident wherein the deceased died while working with
the Rotervane Machine. It is the claim of the petitioners that they provided
proper guard to the hole for protection of the workers and took all
precautionary measures providing the guard and fencing, but it is seen that
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they could not describe as to how the deceased worker fell down inside the
Rotervane Machine and his head got crushed as described by the accused
manager in his accident report in Form-18. Had there been any guard or
fencing in the Rotervane Machine, the incident would not have happened
wherein a worker died instantly due to crushing of his head inside the
Rotervane Machine. The DW-2 also failed to disclose as to how the deceased
fell on the hooper of the Rotervane Machine and said unfortunate incident
took place except the plea that proper precautionary measures were taken.
Both the DWs failed to disclose the fact as to how the unfortunate incident
had happened inspite of having proper guard/fencing on the mouth of the
Rotervane Machine. Rather from the evidence of the DW-2 it is seen that the
factory inspector investigated the site in his presence and accordingly
prepared the investigation report. PW-2, the complaint himself has proved his
investigation report during investigation wherefrom it is seen that one side of
the Rotervane Machine was found without any fencing and the mouth of the
Rotervane Machine was also nor properly guarded/fenced as a precautionary
measure for the workers.
31. It is also claimed by the accused petitioners that prior approval was
there before installation of the Rotervane Machine. However, it is admitted
that the approval letter was not received by the factory, though two months
prior to the installation of the Rotervane Machine, the application was filed
before the Chief Inspector of Factories for approval of the same. As it was not
rejected, it is deemed that there was proper approval for installing the new
machine, i.e., the Rotervane Machine in the factory. But from the evidence of
DW-2 it is seen that he exhibited the letter for approval as Ext.- Ka and Ext.-
Kha through which the layout was sent for approval. He also exhibited the
letter dated 17.10.2005 to the Chief Inspector of Factories, i.e., the letter for
approval. But in the discussion made by the learned Trial Court below as well
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as after perusal of the exhibits it is stated that through Ext. Kha it was
applied for approval of layout on 16.07.2005 and the Chief Inspector of
Factories accepted the state for approval of the layout only on 24.10.2005,
but the unfortunate incident had occurred on 16.10.2005, from which it
appears that there was no approval of layout on the date of incident and
there is no evidence that at the time of accident the layout plan of installation
of Rotervane Machine in the factory was pending the Chief Inspector of
Factories.
32. Thus, it is seen that even before the sending the letter for approval, the
Rotervane Machine was installed in the factory and on the date of the
incident there was no pending approval before the Chief Inspector of
Factories. Thus, without any proper approval or without any proper
intimation to the Chief Inspector of Factories, there was installation of the
Rotervane Machine wherein the unfortunate incident had happened on
16.10.2005.
33. The Apex Court in catena of decisions have held that Section 92 is a
perfectly valid piece of legislation insofar as it makes the occupier or manager
of a factory guilty of an offence for contravention of any of the provisions of
the Act or the Rules made thereunder which can be reiterated from the
Section itself. Section 92 of the Act, reads as under:
92. General penalty for offences.–Save as is otherwise expressly provided in this
Act and subject to the provisions of section 93 , if in, or in respect of, any factory
there is any contravention of any of the provisions of this Act or of any rules made
there-under or of any order in writing given there-under, the occupier and manager
of the factory shall each be guilty of an offence and punishable with imprisonment
for a term which may extend to [two years] or with fine which may extend to [one
lakh rupees] or with both, and if the contravention is continued after conviction,
with a further fine which may extend to [one thousand rupees] for each day on
which the contravention is so continued.
34. Coming to the issue raised by the learned counsel for the petitioners in
regards to term occupier, it is seen that these two petitioners are the
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Executive Director and Manager of the company and thus, they can be
termed as the occupier and manager of the factory, who could be held guilty
for any offence under Section 92 of the Factories Act in terms of Section 2(n)
of the Factories Act. It is an admitted fact that both the petitioner Nos. 1 and
2 are responsible for all affairs of the company and they are working as
manager and occupier of the company and hence, they come within the
definition of occupier as per Factories Act. Thus, these two petitioners are
found responsible for all affairs of the factory and they are supposed to take
all precautionary measures for safety of the workers in the company while
working in any machines.
35. Section 2(n) of the Factories Act, 1948 reads as under:
“2(n) “occupier” of a factory means the person who has ultimate control over the
affairs of the factory,
Provided that–
(i)in the case of a firm or other association of individuals, any one of the individual
partners or members thereof shall be deemed to be the occupier;
(ii)in the case of a company, any one of the directors shall be deemed to be the
occupier;
(iii)in the case of a factory owned or controlled by the Central Government or any
State Government, or any local authority, the person or persons appointed to
manage the affairs of the factory by the Central Government, the State Government
or the local authority, as the case may be, shall be deemed to be the occupier;”
36. So from reading of the definition of ” Occupier” under Section 2(n) of
the Act read with second provision, it is clear that in the case of a company,
the Directors shall be deemed to be an Occupier. More so as per Section 2(n),
“Occupier” of a factory means the person who has the ultimate control over
the affairs of the company.
37. In the present case, it is also seen that there is no evidence that any
other person except the Petitioners had control over the factory to be held as
an “Occupier”. The Petitioners are the only persons who had the ultimate
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control over the factory and thus they can be termed as ” Occupier” of the
company within the meaning of Section 2(n) of the said Act.
38. The Hon’ble Apex Court in the case of J.K. Industries & Ors Vs. Chief
Inspector of Factories and Boilers & Ors. reported in (1996) 6 SCC
665 has held that “legislature wanted to bring in a sense of responsibility in
the minds of those who have the ultimate control over the affairs of the
factory, so that they take proper care for maintenance of the factories and
the safety measures therein. The fear of penalty and punishment is bound to
make the Board of Directors of the company more vigilant and responsive to
the need to carry out various obligations and duties under the Act,
particularly in regard to the safety and welfare of the workers. Proviso (ii)
was introduced by the Amending Act, couched in a mandatory form — “any
one of the directors shall be deemed to be the occupier” — keeping in view
the experience gained over the years as to how the directors of a company
managed to escape their liability, for various breaches and defaults
committed in the factory by putting up another employee as a shield and
nominating him as the ‘occupier’ who would willingly suffer penalty and
punishment……………………………………………………………. Proviso (ii) now
makes it possible to reach out to a director of the company itself, who shall
be prosecuted and punished for breach of the provisions of the Act, apart
from prosecution and punishment of the Manager and of the actual offender.
The proviso, by making one of the directors of the company responsible for
proper implementation of the provisions of the Act, to a great extent ensures
that more care is taken for the maintenance of the factory and various safety
measures prescribed under the Act for the health, welfare and safety of the
workers are not neglected. In the case of a company, the main part of
Section 2(n) would not be workable unless that provision is read along with
proviso (ii)”.
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39. From the judgments passed by the learned Appellate Court dated
10.02.2012 passed in Crl. A. 17(3)/2010 it is seen that the learned Appellate
Court had already modified the sentence, as imposed by the learned Trial
Court vide its judgment dated 16.08.2010, passed in G. R. Case No.
205c/2006 and from the discussions made above, this Court is of the opinion
that the judgment passed by the learned Appellate Court affirming the
judgment of the learned Trial Court does not call for any interference from
this Court and the petitioners are hereby directed to pay amount of
Rs.50,000/- each as fine as directed by the learned Appellate Court.
40. This criminal revision petition is accordingly stands rejected.
41. Return the TCR forthwith.
JUDGE
Comparing Assistant
Rupam Digitally signed
by Rupam Das
Das Date: 2026.05.20
16:57:22 +05'30'
