PROVINCIAL GOVERNMENT, CENTRAL PROVINCES AND BERAR Vs. GANPAT DHARMAJI BHAOSAR, MANAGER OF FIRM BHAGWANDAS HARKISANDASS GINNING AND PRESSING FACTORY

JUDGEMENT

(1.) THIS is an appeal by the Provincial Government under Section 417, Criminal P.C., 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 Section 42 punishable under Section 60(b)(i) by allowing workmen to work at hours otherwise than in accordance with the notice of periods of work displayed under Section 39 and entries made in the register as also Section 38, Factories Act (28 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), 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. Ganpat, the manager, presented a formal complaint under Section 71, 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, Mobgaonkar, or Ganpat the manager, convicted Sadasheo of the offence punishable under Section 60(b)(i) read with Sections 38 and 39, 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.

(3.) FROM the procedure followed by the Sub-divisonal Magistrate, it is clear that he is not fully aware of the procedure to be followed in such cases falling under Section 71, Factories Act, In Government of Bengal v. J.A. Murray it was pointed out that Section 42, Sub-section (1), 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 hag-brought in. The manager or occupier in his capacity as the complainaint is entitled to testify against the person charged by him and is also liable to be cross-examined. That case was followed in Supdt. and Remebrancer of Legal Affairs Bengal v. L.N. Birla in which it was laid down that Section 71 of the Act of 1984 (like Section 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, Factories Act, 1934, as the procedure laid down in Section 71 is a special one which is different from the, ordinary procedure contemplated by the Criminal Procedure Code, Under that section the proceedings are initiated by the Inspector of Factories by a complaint against the manager or occupier under Section 60, Factories Act. The manager or the occupier is then entitled under Section 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 pf 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.