LexCHINUBHAI HARIDAS versus THE STATE OF BOMBAY
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
r959
Vishwanath
v.
Th• Stal• of
UUar Prad1sb
Wanchoo ].
r959
654
SUPREME COURT REPORTS [1960(1)]
'
only one below with an ordinary knife which, if
it had been a littfe this way or that, could not have
been fatal, it cannot be said that he inflicted more
ha.rm than was necessary for the purpose of defence.
.As has been pbinted out in Amjad Khan v. The State('),
"these things cannot be weighed in too fine a set of
scales or 'in' golden sce,le' ".
We, therefore, allow the appeal and hold that the
appellant. had the right of private defence of person
under the fifth claivse qf s. 100 and did not cause more
harm than was necessary and acquit him.
Appeal allowed.
C:HINUBHAI HARIDAS
v.
THE STATE OF BOMBAY
(SYED J.AFER IMAM and K. N. W ANCHOO, jJ.)
F dctories-Precliutions against 'dangerous fumes-Duty of
<Occupier-Liability for accident-" Be permitted to enter", mean-
ing. of-Indian .Factories Act, r948 (LXVIII of r948), s. 36(3)
and (4).
The'appellant was the occupier, of a 'factory where there
was a pit ii)· which dangerous fumes were likely to be present.
The pit was securely covered and enclosed and no one was
expected to go down into it for normal work as it was worked
i?Y gadgets fixed nearby above the 'ground. Something went
wrong with the machin'ery'inside the pit and five workers went
down without wearing suitable breathing apparatus and without
wearing a belt securely.attached to a rope the free end of which
could be held by some person standing outside. All the workers
were overcome by poisonous gases and died. It was found that
suitable breathing apparatus, reviving a,pparatus, belts and ropes
were not available anywhere in the factory and were not kept
for ready use near the pit. The appellant was prosecuted as the
.o~cupier for breach .of the provisions of s. 36(3) and (4) of the
Indian Factories Act, 1948. The trial Court held that no offence
under s. 36(3) had been made out and if was not proved that any
permission, express or implied, had been given to the workmen
to enter the pit, and that no offence under s. 36(4) had been
rqade out because no permission having been given it was not
necessary to keep the brep.thing apparatus etc., near the pit or
,anywhere else in the factory and consequenUy it acquitted the
appellant. On appeal by the State, the High Court set aside the
(1) (1952] S.C.R. 567.'
S.C.R.
SUPREME COURT REPORTS
655
acquittal and directed the trial Court to decide the case against
z959
the appellant in the light of the interpretation of the law made
by the High Court. The High Court was of the view that as Chinubhai .Ilaridas
the appellant had failed to prevent the entry of the workers he
v.
must in law be held to have permitted the entry and committed
The State of
breach of s. 36(3); and that it was not sufficient compliance with
Bombay
s. 36(4) to provide breathing apparatus etc., only after coming
to know that some person was about to enter the pit but that
such apparatus must be immediately available at the pit at all
times.
Held, that s. 36(3) did not cast an absolute duty on the
occupier to prevent the entry into the pit and the mere fact that
a person had entered the pit did not by itself prove that he had
been "permitted to enter " within the meaning of that sub-
section. The primary duty was on the worker prohibiting him
from entering the pit. At the same time the occupier was also
liable if his permission to the ·entry, whether express or implied,
could be inferred from the facts and circumstances of the case.
Held, iurther, thats. 36(4) cast an absolute duty on the
occupier to see that the breathing apparatus etc., was always
available in the factory and was periodically examined and
certified fit for use and a sufficient number of persons were
trained in its use.
But there was no duty to keep the appara-
tus at the pit at all times; such a duty arose when some person
was about to enter the pit with the permission of the occupier.
CRIMfNAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 193of1957.
Appeal by special leave· from the judgment and
order dated August 1, 1957, of the Bombay High Court
in Criminal Appeal No. 365 of 1957, arising out of the
judgment and order dated the November 28, 1956, of
Joint Civil Judge, Junior Division, and Judical lVIagi-
sitrate First Class, Broach, in Summary Case No. 57 of
1956.
Rajni Patel and M. S. K. Sastri, for the appellant.
H. J, Umrigar, T. M. Sen and RExcerpt shown. Read the full judgment & AI analysis in Lexace.