Provincial Governmen... v. Ganpat Dharmaji Bhao...

Niyogi, J.:— This is an appeal by the Provincial Government under Section 417 of the Cr PC, against the acquittal of Ganpat and Durgaprasad who are respectively the manager and occupier of Bhagwandas Harikisandas Ginning and Pressing Factory of & Pandharkauda. The facts are that on 18th February 1942 at 3 P.M the Inspector of Factories, R.N Mohgaonkar, visited the premises of the above factory and found that some of the workmen were working during their legitimate period of rest. The manager and the occupier were accused of violating S. 42 punishable under S. 60(b)(i) by allowing workmen to work at hours otherwise than in accordance with the notice of periods of work displayed under S. 39 and entries made in the register as also Section 38 of the Factories Act (25 of 1934). On 27th July 1942 Mohagaonkar made to the Deputy Commissioner, Yeotmal, a report to which he attached a draft complaint asking for sanction to prosecute the manager and the occupier or either of them as he thought fit under Section 74(1) of the Factories Act, 1984. The Deputy Commissioner sanctioned the prosecution against both, the manager and the occupier, and sent the complaint to the Sub-divisional Magistrate, Yeotmal, for disposal. The Deputy Commissioner accorded the sanction on 18th August 1942, but his sanction and the complaint did not leave his office until 20th August 1942. The complaint was actually received by the Sub-divisional Magistrate, Yeotmal, on 21st August 1942.

2. The Sub-divisional Magistrate held summary trial in the course of which the manager and the occupier made a representation in writing that they had exercised due diligence in enforcing the provisions of the Factories Act and attributed the irregularity in the time-table and the register to the negligence of Sadasheo Rajeshwar Joge who was a clerk employed in the factory.

3. Ganpat, the manager, presented a formal complaint under Section 71 of the Factories Act, to summon Sadasheo Rajeshwar to answer the charge. At the trial Ganpat and Durgaprasad (manager and occupier) pleaded not guilty and Sadasheo pleaded guilty. The Magistrate without examining the Inspector, Mohgaonkar, or Ganpat the manager, convicted Sadasheo of the offence punishable under Section 60(b)(i) read with Sections 88 and 39 of the Factories Act, but acquitted the manager and the occupier notwithstanding his suspicion that the irregularities had been committed with the connivance of the manager. This appeal is directed against their acquittal.

4. The main contention on behalf of the appellant is that the manager and the occupier could not be acquitted for the simple reason that the person whom they charged with the actual commission of the offence pleaded guilty and that it was incumbent on the manager and the occupier to discharge the onus laid on them by Section 71(1) of the Factories Act, to prove that they had used due diligence to enforce the execution of the Factories Act and that the offence had been committed without their knowledge, consent or connivance and in contravention of their orders.

5. From the procedure followed by the Sub-divisional Magistrate, it is clear that he is not fully aware of the procedure to be followed in such cases falling under Section 71 of the Factories Act. In 56 Cal. 400 (’28) 15 A.I.R 1928 Cal. 557 , 117 I.C 673 , 30 Cr. L.J 818 , 56 Cal. 400 , 32 C.W.N 922 it was pointed out that Section 42, sub-section (1) of the Factories Act, (12 of 1911), which was equivalent to Section 52 of the current Act of 1934, when the manager or occupier of a factory is charged with an offence, he is entitled to make a complaint against those whom he considers the offenders and to have such persons brought before the Court at the time appointed to hear the charge brought against them. The effect was to split up one criminal proceeding into two: one carried on by the Inspector of Factories and another by the manager or the occupier. In this way while the manager or occupier is accused of having committed an offence under the Act, he is also a complainant on his complaint against the other person or persons he has brought in. The manager or occupier in his capacity as the complainant is entitled to testify against the person charged by him and is also liable to be cross-examined. That case was followed in I.L.R (1940) 1 Cal. 120 (’39) 26 A.I.R 1939 Cal. 724 , 185 I.C 319 , 41 Cr. L.J 164 , 70 C.L.J 463 , 43 C.W.N 1223 , I.L.R (1940) 1 Cal. 120 in which it was laid down that S. 71 of the Act of 1934 (like S. 42 of the old Act of 1911) required proof not only of the actual offender, but that the controlling authority had not shirked his responsibility by failure to use due diligence to enforce the provisions of the Act. The learned Judges thought it desirable to set forth the procedure contemplated by the Legislature under Section 71 of the Factories Act, 1934, as the procedure laid down in S. 71 is a special one which is different from the ordinary procedure contemplated by the Code of Criminal Procedure. Under that section the proceedings are initiated by the Inspector of Factories by a complaint against the manager or occupier under Section 60 of the Factories Act. The manager or the occupier is then entitled under S. 71 to complain against an offender and if he does so the actual offender is summoned before the Court and the trial proceeds as against both persons complained against. But the carriage of proceedings remains with the original complainant, viz., the Inspector of Factories, on whom the onus lies of proving that the offence has been committed. In this proceeding both parties complained against, viz., the manager or the occupier and the third party brought into Court at their instance, are entitled to cross-examine the prosecution witnesses and to lead evidence to disprove the charge. But inasmuch as they are the accused persons they would not be entitled to enter the witness-box. If the commission of the offence itself is not proved both parties complained against must be acquitted.

6. If the offence is proved to have occurred the Court should record an order to that effect with the consequence that the manager or the occupier becomes prima facie guilty under S. 60 of the Act. It is at this stage that S. 71 intervenes to afford the manager or the occupier an opportunity of exculpating themselves by giving satisfactory proof required by S. 71(1)(a)(b) of the Act. This proceeding is limited to the complaint made by the manager or the occupier against the third party or parties. The manager or the occupier to discharge the onus of proof lying on him is entitled to call evidence and to give evidence himself. The third party, who is summoned to Court at the instance of the manager or the occupier, would only be entitled to call evidence but not to give evidence himself because he occupies the role only of an accused unlike the manager or the occupier who being the complainant has to discharge the onus of positive proof laid on him by S. 71. The same view was taken in I.L.R (1940) Bom. 420. (’40) 27 A.I.R 1940 Bom. 265 , 190 I.C 270 , 41 Cr. L.J 884 , I.L.R (1940) Bom. 420 , 42 Bom. L.R 482

7. In the present case, the Inspector of Factories, who filed the complaint, was not examined as a witness on the point of the commission of the offence. That irregularity, however, has not prejudiced any party because the factory clerk pleaded guilty and the manager and the occupier admitted that the offence had been committed. In view of that admission the burden of proving circumstances contemplated in S. 71(1)(2) of the Act lay on the manager and the occupier. They could not be deemed to have exculpated themselves only because the actual offender admitted that he had committed the offence. If that was so, it would make S. 71 of the Act otiose and open the doors wide for fraud on the Act. The law holds the manager and the occupier primarily responsible for enforcing the execution of the Factories Act and they cannot escape their liability to prove due diligence or commission of the offence without their knowledge, consent or connivance and without adducing affirmative proof in that behalf. The Sub-Divisional Magistrate clearly misdirected himself in exonerating the occupier and the manager for the only reason that the factory clerk pleaded guilty. The case should, on the view we take of the correct procedure applicable to the case, go back to the lower Court for further trial but as will be shown in the sequel the appeal stands to be dismissed on the ground that the complaint filed against the respondents was barred by time.

8. The complaint contains an allegation of the commission of an offence under Section 60 of the Factories Act, 1984. Section 75 of that Act precludes the Court from taking cognizance of any complaint of an offence other than an offence under S. 62 or S. 64 unless it is made within six months of the date on which the offence is alleged to have been committed. Mohgaonkar who detected the offence, sent up his report to the District Magistrate, Yeotmal, because he was the officer who by virtue of S. 10(4) was the Inspector for his district empowered to grant sanction to the institution of the prosecution under S. 74(1) of the Act. Although the draft complaint was received by the District Magistrate, along with the report he received it only in an administrative capacity for the purpose of according sanction to the prosecution. The complaint cannot, therefore, be deemed to have been filed before him on 27th July 1942 on which date it was received by him. The District Magistrate could not legally take cognizance of the case as a Magistrate as he was the officer who sanctioned the prosecution. The only authority which had the power to take cognizance of the offence was the Sub-Divisional Magistrate to whom the complaint was sent by the District Magistrate. The complaint was received by him two days beyond the prescribed period of limitation of six months when he had lost his competency to take cognizance of the case. The rule of limitation laid down in S. 75 of the Act is peremptory and cannot be circumvented by any considerations imported from the provisions of the Limitation Act. In 20 Bom. 5434 a complaint which had been made more than six months after the date of the offence, was held to be untenable in view of the provisions of Section 11 of the Salt Act (12 of 1882), which provided the period of limitation. The same view was taken in A.I.R 1931 Mad. 276 (’31) 18 A.I.R 1931 Mad. 276 , 131 I.C 848 , 32 Cr. L.J 809 and A.I.R 1935 Cal. 116. (’35) 22 A.I.R 1935 Cal. 116 , 154 I.C 197 , 36 Cr. L.J 495 , 38 C.W.N 1072 As the complaint itself was barred by limitation, this appeal stands deprived of its basis and should therefore be dismissed.

Digby, J.:— I agree, but would like to refer to one question of procedure, namely, whether when the occupier or manager makes a complaint he should not at once be examined on oath like any other complainant. It is true that the Magistrate has already taken cognizance of the offence, but nevertheless I do not consider that an examination of the complainant under Section 200 of the Cr PC, would be illegal. Such an examination would serve to prevent the occupier and the manager from abusing the right of cross-examination when the charge was heard.

9. By the Court.—The appeal is dismissed.

V.C/V.S

10. Appeal dismissed.