STATE Vs. KANDASAMY

JUDGEMENT

(1.) These appeals preferred by the State on behalf of the Inspector or Factories, are directed against the judgment in C.C. No. 337 of 1986 and C.C. No. 338 of 1986 acquitting the respondent in respect of charges under S. 90(2) of the Factories Act, 1948.

(2.) The case of the prosecution is that on 5-6-1985 at 10-00 a.m. P.W. 1, Factory Inspector went and inspected the Mahalakshmi Textile Mills Limited and found that there were defects by not constituting a Committee for canteen, not providing furniture facilities to the Rest Shed and creche facilities to the children of the employees, non-provision of Ambulance Van, non-maintenance of Ambulance Room and non-maintenance of Canteen building. Since these are all offences attracting the relevant Ss. 45, 46, 47 and 48 of the Factories Act, he is liable to be convicted under S. 92 of the Factories Act. A show-cause notice was sent to the party asking the respondent to rectify the defects within a particular period. A reply was sent by the respondent to the show-cause notice, stating that the Mill had become a sick unit and he was not able to provide facilities as there was no financial aid from the Authorities to whom he approached for loan, and undertook to rectify the defects in the quickest possible time. Again on 25-11-1985, P.W. 1 went and on inspection found that the defects were not rectified. Therefore, on 13-8-1986 P.W. 1 filed two complaints with reference to three charges each. On behalf of the prosecution, P.Ws. 1 and 2 were examined and Exhibits P1 to P12 were filed. In fact, P.Ws. 1 and 2 in both the cases were not cross-examined by the respondent. Even when questioned under S. 313, Cr. P.C. the respondent pleaded guilty and requested for lesser punishment, stating in the future he could correct the defects. Despite this, learned Magistrate, in both the cases acquitted the accused on the only ground that the offence committed by the respondent was an unintentional one and there is no mens rea for the respondent while committing the offences. Against this judgment, the present appeals have been preferred before this Court by the State.

(3.) On going through the records and on hearingthe arguments advanced by both the counsel, I am fully satisfied the ground on which the order of acquittal has been passed by the trial Court is invalid and unsound and the judgment of the lower Court is liable to be set aside. When this point of mens rea has been urged before the Apex Court on similar facts, in the case of State of Gujarat v. Kansara Manidal Bhikhalal, reported in AIR 1964 SC 1893 : (1965 (1) Cri LJ 90) it has held that for these offences under the Factories Act, mens rea need not be established and the responsibility to prove innocence by virtue of S. 101 of the Factories Act by showing that the offence was committed without the knowledge or consent or in connivance. of the person in charge, is with the accused.In this case, it is quite clear that the first inspection was made on 5-6-1985 by P.W. 1 and on the basis of the defects found out on the said date, he issued a show-cause notice. On receipt of the show-cause notice the accused-respondent sent a reply admitting the said defects and given an undertaking that he would rectify those mistakes in the future. But, even on the second inspection made on 25-11-1985 P.W. 1 found that the said defects were not got rectified. Furthermore, the accused in this case also had pleaded guilty when he was questioned under S. 313, Cr. P.C. Therefore, it cannot be contended that the offence committed by the accused is an unintentional one though in these cases it need not be established. Therefore, I am of the view that the judgment of the trial Court in this case is not on the basis of the legal ground and the same is liable to he set aside. However. Mr. Ethirajulu, counsel for the respondent requests this Court to consider the long lapse of the period after the judgment rendered in the year 1986. The offence has been committed in 1985. The judgment has been rendered in January, 1987. Now, nearly two years have lapsed. Therefore, while pointing out the illegality and setting aside the judgment given by the trial court in both the cases, I do not propose to impose any sentence on the respondent in view of the long lapse of time. With this observation the appeal is disposed of.Order accordingly.