STATE OF MAHARASHTRA Vs. A H KHAN

JUDGEMENT

(1.) THESE two reference are made by the District Judge, Sholapur, under S. 438 of the Criminal procedure code recommending that the conviction and sentences recorded In the both the cases should be set aside. The convictions of are one under S. 66 [1] [b] and S. 92 read with the Ss 63 and 66 [1] [d] of the Factories.

(2.) THE accused in the case is the owner of what is known as Munshi Bidi Works, which is factory within the meaning of the Factories, act and in the situated at 57/60. Gurwar peth, sholapur. He owned similar factories at several other places bearing the same name while he himself was stated in poona. The factory Inspector visited the factory on the 9th October 1963 at about 8 -10 p. m. And found only six women workers out of may working in the factory and doing the work of tying Bidies into bundles. Now the period of work, as stated on the painted board displayed in the factory, was between 10-30 a. m. to 2 - 30 p. m. and 3-00 p. m. to 7-00 p. m. These six women workers were found the at to be working at 8-10 p. m. The accused was prosecuted in that all the six cases, viz. ,. , the case Nos. 56, 57 and 59 of 1964 under Ss. 66 [1][b] and 58. 60 and 61 of 1964 under S. 63 read with the S. 92. Within three days of the date notice of the term of the S. 101 of the Factories Act standing that he manager was in charges of the Factory at Sholapur, that the accused was residing at Poona and the he had instruct the manager who was guilty of the offence, and not himself. Infect this is the complaints to the mad to he court by the accused three days before the hearings so as to enable the court to get the Manager before it. The accused them also gave evidence in support of this contention that it was the manager of who was guilty of the charge and not himself. The learned magistrate refused to the accept the plea of the accused and held that it was an after -thought. One does not known whether the Manager was summoned before the court in the term of the section. The accused filed an application in Revision before the learned District and sessions Judge who held that the evidence of the accused that it was the managers of the factory who was responsible of the breach of the provisions of the act ought to have been accused. In accordance's with the his findings, he has recommended that the conviction of the accused byte set aside.

(3.) MR. S. B. Sukthankar, who appears on behalf of the accrued, has supported the reference, while Mr. Bhasme, learned assistant Government pleader, has opposed at the reference very strongly. Mr. Bhasame contended that in the first instances that under the Factories act the liability of the manager and occupier of the con - current and is to the not open occupier in under S. 101 for the either of them to alleged and prove that is was the other who was guilty of the offense and he get himself and he acquitted. In other words that the liability o the manager and the occupier is absolute and they have breach even under S. 101 of the ac, if any defended of the Rules of he purposes upon the committee. Mr. Bhasme relied for the this purpose upon the definition of "occupier" in clauses (n) of S. 2 of the Factories act.