Animadverting upon the judgements dated 22.11.2005, passed by the Additional District and Sessions Judge-Fact Track Court No.II, Coimbatore, in C.A.Nos.383 and 382 of 2005, confirming the judgements dated 25.8.2005 passed by the Chief Judicial Magistrate, Coimbatore, in C.C.Nos.21 and 20 of 2005, these criminal revision cases are focussed.
2. Compendiously and concisely, the relevant facts, which are absolutely necessary and germane for the disposal of these criminal revision cases would run thus:
(a) The Inspector of Factories visited the factory by name M/s.Mahavir Plantations Ltd., on 24.11.1999 at 2.30 p.m. and noted the following violations:
"(i) Adequate lighting facility for the night shift workers of the Factory from the place where manufacturing process was taking place to the place where the toilets are provided, was not provided.
(ii) only dry latrine has been provided in the toilets."
and instructed the authorities concerned to remedy the same. Since there was no positive response in rectifying the defects, the prosecution was launched by filing compliant before the Chief Judicial Magistrate, Coimbatore, as against Sailesh T.Bansali.
(b) Whereupon, the said Sailesh T.Bansali filed Criminal Original Petition Nos.35974 and 35975 of 2003 before this Court and got the prosecution launched as against him quashed on the ground that he was not the appropriate person to be prosecuted. It was also the contention of Sailesh T.Bansali that Lalu T.Bansali the revision petitioner herein was the Director, who was appointed as Manager within the meaning of the Factories Act.
(c) In obedience to the High Court's order, Sailesh T.Bansali was deleted and Lalu T.Bansali was arrayed as an accused by way of getting the complaint amended. Whereupon, trial was conducted.
(d) During trial, on the side of the prosecution P.W.1 and P.W.2 were examined and Exs.P1 to P10 were marked. On the side of the accused, no oral or documentary evidence was adduced.
(e) Ultimately, the trial Court found the revision petitioner herein guilty and imposed the following sentences:
Case No. Offence Punishment C.C.No.21 of 2005 Section 17(1) of the Tamil Nadu Factories Act 1948 Fine of Rs.50,000/-, in default, to undergo simple imprisonment for six months C.C.No.20 of 2005 Sec.19(1) of the Tamil Nadu Factories Act 1948 and Rule 41 of the Factories Rules 1950 Fine of Rs.50,000/-, in default, simple imprisonment of six months
(f) Being aggrieved by and dis-satisfied with the judgements of the lower Court, the appeals in C.A.Nos.382 and 383 of 2005 were filed before the Additional District and Sessions Judge-Fast Track Court No.II, Coimbatore, for nothing but to be dismissed by the appellate Court., confirming the judgment of the trial Court.
3. Impugning and challenging the judgements of both the Courts below, these revisions have been filed on various grounds, the pith and marrow of them would run thus:
No pre-prosecution notice was issued to the revision petitioner herein in respect of the alleged violations. The complaint as against the accused was barred by limitation. Without adverting to these two important factors, both the Courts below fell into error in finding the accused guilty.
4. Heard both sides.
5. The point for consideration is as to whether there is any perversity or non-application of law on the part of both the Courts below in holding that the prosecution is not barred by limitation and that the prosecution case is not bad for want of pre-prosecution notice to the accused.
6. The learned counsel for the revision petitioner, by inviting the attention of this Court to various parts of the evidence, would set forth and put forth his argument to the effect that the pre-prosecution notice issued to Sailesh T.Bansali cannot be taken as one issued to the revision petitioner herein; after this Court quashed the prosecution as against Sailesh T.Bansali, no notice was issued, admittedly, to the revision petitioner herein; by no stretch of imagination, the violations could be termed as 'continuing offence' and hence, the judgements of both the Courts below have to be set aside.
7. Whereas, by way of pulverising and torpedoing the arguments advanced on the side of the revision petitioner, the learned Additional Public Prosecutor would advance and develop his argument to the effect that Ex.P10, marked during enquiry, would exemplify and demonstrate that even as early as 13.12.1999, pre-prosecution notice was sent to Sailesh T.Bansali; the aforesaid violations continued till the prosecution filed the complaint and hence, the act of the accused is covered by the definition 'continuing offence', as contemplated under
Section 106 of the Factories Act and as such, there is no substance or merit in the revision.
8. It is therefore just and necessary to analyse as to whether in this case, the original of Ex.P10 was served on the revision petitioner herein.
9. The learned counsel for the revision petitioner would invite the attention of this Court to the cross-examination of P.W.2, which is extracted hereunder for ready reference.
VERNACULAR (TAMIL) PORTION DELETED Placing reliance on the said cross-examination, the learned counsel for the revision petitioner would submit in the 3rd line of the said cross-examination, P.W.2 stated that no pre-prosecution notice was sent to the revision petitioner.
10. I would like to clarify that no doubt, in the 3rd line of the said cross-examination, it is stated that no pre-prosecution notice was sent, but it should not be read out of context. The entire cross-examination should be read. It is the stand of P.W.2 that after Sailesh T.Bansali was deleted from the prosecution, no fresh notice was sent. However, in the lower portion of the cross-examination he would add that even as early as on the date of filing of the amended petition, along with the amended petition the carbon copy of the pre-prosecution notice-Ex.P10, which was sent to the accused, was enclosed.
11. I would like to point out that at the time of marking Ex.P10, it was not objected to on the ground that the original of Ex.P10 was not sent to the revision petitioner herein. There is also no cross-examination to the effect that the original of Ex.P10 was not sent to the accused. In such a case, it cannot be taken that pre-prosecution notice was not sent to the revision petitioner herein.
12. The learned counsel for the revision petitioner would cite the following decisions:
(i) 1996 Crl.L.J.240 THE STATE OF GUJARAT VS. HARIBHAI VITHALBHAI THAKAR, certain excerpts from it would run thus:
"4. The respondent in all the appeals in the original accused who was working at the relevant time, as a Manager of a factory run in the name of "Shah Paper-bag Company' at Vadhvan. The respondent is hereinafter referred to as the accused for the sake of convenience and brevity. One Mr.G.A.Nasit was working as a Factory Inspector at Surendranagar at the relevant time. He visited the factory of the accused on 18.2.1987 when the factory work was going on, the accused was the manager. During the course of the visit, the factory Inspector found that six workers were working in the factory along with other workers were not shown as workers in the muster roll and that they were not issued identity cards and also leave book as required under the law. Upon finding deficiencies and irregularities, the said workers were question by the Factory Inspector, thereafter he made remarks in the visit book accordingly and the reply was sign by the accused admitting the deficiencies recorded by the Factory Inspector in the visit book.
. . . .
15. It would very well be seen from the aforesaid scheme of the provisions of the Factories Act and Rules thereunder that the manager or the occupier is statutorily obliged to follow the provisions failing which criminal prosecution could be launched by the Factory Inspector. However, it is also very important to note that in order to succeed in a criminal case, the complainant is bound to establish the guilt of the accused beyond reasonable doubt. It cannot be contended that the principles applicable to every criminal case, should not be extended to cases under Factories Act. The guilt of the accused ought to be established beyond any reasonable doubt. In the light of the facts and circumstances of the case, the trial court recorded the conclusion in all the aforesaid 18 criminal cases that the alleged offences against the accused had not been established beyond reasonable doubt.
16. The ultimate conclusion arrived at by the trial Court appears to be reasonable and just. The aforesaid alleged workers were examined except one before the trial Court as the prosecution witnesses and they have not supported the prosecution version. Reliance on the complainant's evidence is rightly not placed by the trial Court. He has also not been able to produce the relevant original record. Ex.34, on which reliance came to be placed is a xerox copy of one of the carbon copy of the original register. How could it now be contended in an appellate Court that the trial Court has seriously erred in not placing reliance on the copy of one of the carbon copy one of the documents. If this document which cannot be relied on and the evidence of five witnesses who are alleged to be workers in the factory at the relevant time when the Inspector visited the factory, is excluded from the consideration, then nothing remains on record. Admittedly, all the witnesses who are alleged to be workers, have not supported the prosecution case. They have clearly stated that they were not workers at the relevant time."
(ii) 1995 COMPANY CASE (VOL 83) 616 SIVANDHI ADITYAN VS. ADDITIONAL REGISTRAR OF COMPANIES, certain excerpts from it would run thus:
"........Prosecution Show Cause notice not received by Director Prosecution quashed . .
The legislative intention expressed in rule 3A of the Companies (Acceptance of Deposits) Rules, 1975, is not indicative that the violation of such rule is a continuing offence. The offence contemplated therein is committed once and for all, attracting punishment under the first limb of rule 11 of the Rules, which is fine which may extend to Rs.500 only. For such an offence punishable with fine the period of limitation prescribed under clause (a) of sub-section (2) of
section 468 of the Criminal Procedure Code, 1973, is only six month.
. . . . .
Where the notice issued by the Registrar of Companies to the petitioner to show cause against prosecution for offences under
Section 58A of the Companies Act and rule 3A of the Companies (Acceptance of Deposits) Rules, 1975, was returned unserved:
Held, that the petitioner was not an officer in default and the prosecution of the petitioner was liable to be quashed."
13. Placing reliance on the above decisions, the learned counsel for the revision petitioner would develop his argument that specific notice to the accused, before launching the prosecution, is required.
14. I would like to distinguish and differentiate between the facts involved in the cited precedent and the facts involved in this case. It is quite obvious and axiomatic that in the cited precedent, the prosecution was relating to violations of the provisions of the Companies Act, whereas, here the prosecution is relating to violations in respect of the Factories Act. In that case, admittedly, the notice sent to the alleged offender returned as 'not found'. Thereafter, no steps were taken to serve notice and it was the specific case of the accused therein that the prosecution was bad for want of notice. Even though statutory notice is not contemplated, yet when the authority had chosen to serve notice on the other accused persons and when such a notice could not be served on the individual concerned, the Court felt that the prosecution is bad for want of proper notice.
15. To the risk of repetition, without being tautalogous, I would point out that the facts of this case are different from the facts involved in the decision cited supra. Here my discussion supra would display and demonstrate that in fact, pre-prosecution notice was sent to the accused, as revealed by Ex.P10, and it was not challenged also. In such a case, it is too late on the part of the accused to veer round and take a plea quite antithetical to what actually transpired before the trial Court, in the revision.
16. It is also a point to be noted that Factories Act is an Act by itself, purely enacted for the purpose of protecting the working class and taking into account the principle of 'Bonum partem' in interpreting the statutes, the provisions of the Factory Act should be interpreted in such a manner that it should be benevolent for the workers. With a draconian eye if it is read, it would amount to doing violence to the very object of the Factories Act. If it is held that pre-prosecution notice is a must, it would work against the very object of the Factories Act. Hence, on that ground also I cannot countenance the argument of the learned counsel for the revision petitioner that even though statutory pre-prosecution notice is not contemplated, a notice should be sent by the Inspector of Factories to the Manager. Nothing anew should be read into any statute and more specifically into a labour statute so as to affect the interest of workers.
17. Regarding the concept 'continuing offence', I would like to refer to
Section 106 of the Factories Act and it is extracted hereunder for ready reference.
"Sec.106 Limitation of prosecution No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector:
Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.
Explanation For the purposes of this section -
(a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues;
(b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired."(emphasis supplie)
18. A plain reading of the above provision would convey and portray that if there is any violation noted by the officials and it continues to be so without being remedied, then it should be termed as 'continuing offence' and the words 'to every point of time during which the offence continues' would cover the case at hand as discussed supra.
19. Whereas, the learned counsel for the revision petitioner, by inviting the attention of this Court to
Section 92 of the Factories Act, would develop his argument to the effect that if at all there is any conviction and even after conviction, if such violation continues, then only it would be termed as 'continuing offence'.
20. I would like to dis-agree with such an argument put forth by the learned counsel for the revision petitioner. What
Section 92 of the Factories Act contemplates is a sentence at a higher level, after first conviction, so to say, if there is recidivism on the part of the accused, then he should be visited with severe punishment. I am of the considered opinion that it is not necessary to dilate further on that point, as it is quite obvious and axiomatic.
21. Here the violations noted, as set out supra, were not stated to have been remedied, but it is proved to have been in existence till the complaint was filed and in such a case, the concept 'continuing offence' could readily be pressed into service and the first appellate Court properly ushered in that theory and dismissed the appeal, warranting no interference by this Court. Hence, I could see no merit in the revisions and accordingly, the same are dismissed.
msk To
1.The Additional District and Sessions Judge-
Fact Track Court No.II, Coimbatore
2.The Chief Judicial Magistrate, Coimbatore