1. The petitioner, who was the accused in the Court below, has been found guilty under Section 21(7)(iv)(c) read with Section 92 of the Factories Act, 1948, and sentenced to a fine of Rs. 50 and fifteen days' rigorous imprisonment in default and this conviction and sentence have been confirmed by the learned Additional Sessions Judge, Poona, in revision. The grievance of the petitioner is that the Courts below were in error in convicting him of the offence in question and in not properly considering his complaint filed under Section 101 of the Factories Act,
2. The few facts, which it is necessary to note for the purpose of deciding this grievance, are that the petitioner-accused happens to be the manager of the Raja Bahadur Motilal Poona Mills Ltd., Poona, which is a factory as defined in Section 2(m)(i) of the Factories Act. On the night of October 27, 1966, a worker named Kantilal Babu was directly feeding cotton to the porcupine opener machine. When the machine stopped, the worker started cleaning the fluted rollers. While he was doing so, the machine suddenly started, with the result that the hand of the worker was caught into the rollers and crushed upto the wrist. His right hand had eventually to be amputed upto the wrist. The fluted rollers, according to the prosecution, formed a dangerous part of the porcupine opener machine and since no guard was provided for those rollers, there was a contravention of the provision of Section 21(7)(iv)(c) of the Factories Act for which the accused was liable under Section 92.
3. The defence of the accused was that a guard was in fact provided for the fluted rollers, but the same was temporarily removed without his knowledge or consent. He further contended that since he had brought the real offender before the Court, he was not answerable for the offence in question in view of the provisions of Section 101 of the Factories Act,
4. It appears that the case filed against the present accused was tried as a summons case and the statement of this accused under Section 242 of the Code of Criminal Procedure was recorded on August 5, 1967. The case was thereafter adjourned for hearing on November 11, 1967, but the hearing was adjourned from time to time and after a number of adjournments, the same actually commenced on November 6, 1968. In the meantime, a formal charge was framed against this accused on September 4, 1967. The complaint filed by the accused against the alleged real offender under Section 101 of the Factories' Act was filed in Court on September 2, 1968 after giving the requisite notice to the Factory Inspector on August 19, 1968. It is on these facts that the question raised on behalf of the accused has to be considered.
5. The submission of Mr. Sawant, appearing on behalf of the accused, was that although November 11, 1967 did happen to be the first date fixed for hearing, the hearing actually commenced on November 6, 1968 and hence for the purpose of Section 101 of the Factories Act that date ought to have been regarded as a date fixed for hearing of the charge. The submission of Mr. Jahagirdar, appearing on behalf of the alleged real offender, Shri Mamtapurkar, was that November 11, 1967 should actually be regarded as a date fixed for hearing of the charge and since the complaint against the alleged real offender was not filed till then, the Courts below were right in not taking any notice of that complaint and in holding the accused guilty.
6. While considering these rival submissions, it is necessary to notice the provisions of Section 101 of the Factories Act. That section says:
Where the occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the prosecutor not less than three clear days' notice in writing of his intention so to do, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if , after the commission of the offence has been proved, the occupier or manager of the factory as the case may be, proves to the satisfaction of the Court-
(a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance, that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the occupier or manager of the factory, and the occupier or manager, as the case may be, shall be discharged from any liability under this Act in respect of such offence ;
Provided that in seeking to prove as aforesaid, the occupier or manager of the factory, as the case may be, may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offenders and by the prosecutor :
Provided further that, if the person charged as the actual offender by the occupier or manager cannot be brought before the Court at the time appointed for hearing the charge, the Court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the Court the Court shall proceed to hear the charge against the occupier or manager and shall, if the offence be proved, convict the occupier or manager.
These provisions have been considered by the Supreme Court in Maneklal v. State of Gujarat , and the conclusion to which
their Lordships have arrived has been stated at p. 1231 in the following words:
...From the observations quoted above, it is clear that there is a duty cast, under the Act, upon the occupier or manager, to comply with the peremptory provisions of the Act; but, under Section 101, when the manager or occupier is charged with an offence, he is entitled to make a complaint, in his own turn, to establish facts mentioned in the said section; and, if he is able to establish that it was such other person, who has committed an offence, and satisfies the other requirements of the said section, the manager or occupier is absolved from all liability.
7. It is, therefore, necessary to consider whether the petitioner-accused in this case can be said to have satisfied the requirements of Section 101 of the Factories Act. From the provisions of Section 101 of the Act it is clear that the first condition which the manager has to satisfy is that he must have given three clear days' notice in writing of his intention to file a complaint under Section
101. That the accused in this case had done, because evidence shows that on August 19, 1968 he gave the notice in question to the Factory Inspector. The second condition to be fulfilled is that the alleged real offender must be brought before the Court at the time appointed for hearing the charge. The section does not say that he must be brought before the Court on the first date appointed for hearing the charge. The expression used in the section is, I think, susceptible to the interpretation that he may be brought before the Court on the final date appointed for hearing the charge; that means the effective date of hearing'. In the present case, the effective date of hearing being November 6, 1968, it ought to be held that that was the date fixed for hearing the charge against this accused. Since the accused had already filed his complaint under Section 101 of the Factories Act on September 3, 1968, it is clear that the same was filed before the date appointed for hearing the charge. On the side of the alleged real offender, it was urged that this interpretation is inconsistent with the second proviso appearing below Section 101. But I do not think so. All that the second proviso would mean is that if the actual offender cannot be brought before the Court at the time appointed for hearing the charge, the Court can only adjourn the case for a period not exceeding three months at the instance of the manager. In the present ease, if the manager were to make an application on November 6, 1908 for time to bring the actual offender before the Court, hearing of the case could not have been adjourned for more than three months, but there was no occasion for anything of this kind to happen, because the hearing actually commenced on November 6, 1968 and the alleged real offender was brought before the Court on September 2, 1968.
8. The construction which I have preferred to put on the provisions of Section 101 of the Factories Act is prompted by the fact that the prosecution in this case is not against a person who is actually said to have committed the offence. The liability of the accused in this case arises out of the provisions of Section 92 under which an occupier or manager of the factory is held answerable for the contraventions of the provisions of the Act. This being the position, every legitimate facility ought to be given to the manager to bring the real offender before the Court.
9. In the view I have taken, the alleged real offender was brought before the Court within the time permitted by Section 101 and that being so, it was not open to the Courts below to ignore that complaint and to convict the present accused for the breach in question. 1 am told that the alleged real offender not only appeared before the Court, but was even allowed to cross-examine the prosecution witnesses in the present case. That clearly was. contrary to the first proviso to Section 101 of the Act which says that when a complaint against the alleged real offender is filed, the occupier or manager of the factory, as the case may be, may be examined on oath and his evidence and that of any witnesses whom, he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender. The learned Magistrate of the Court below was, therefore, clearly in error in allowing the alleged real offender in this case to cross-examine the prosecution witnesses against the present accused. This error will, I hope, be avoided while proceeding with the case hereafter.
10. In the result, the revision application is allowed, the order passed by the Courts below is set aside and the case is remanded to the trial Court for being' proceeded with and disposed of according to law in the light of this judgment.