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IN THE HIGH COURT OF BOMBAY
(D. G. Gatne J.)
RAMKISAN - Petitioner.
v.
D. S. DHARMASTHAL - Opponent.
Advocates Appeared
For petitioner-accused - P. B. Sawant and K. Y. Mandlik.
For State - S. R. Chitnis, Assistant Government Pleader.
For complainant – R. V. Jahagirdar and S. N. Deshpande.
FACTORIES ACT, 1948 - SECTION 101 - COMPLAINT AGAINST ACTUAL OFFENDER - INTERPRETATION - DATE OF HEARING - SECTION 92 - LIABILITY OF OCCUPIER OR MANAGER - CONSTRUCTION.
Fact of the Case:
The petitioner, the manager of a factory, was convicted under section 21(1)(iv)(c) read with section 92 of the Factories Act, 1948, for failing to provide a guard for a dangerous part of a machine, resulting in an accident. He argued that he had filed a complaint against the actual offender under section 101 of the Act and that the courts below erred in not considering it.
Finding of the Court:
The court held that the petitioner had satisfied the requirements of section 101 of the Factories Act by giving notice of his intention to file a complaint and by bringing the alleged real offender before the court on the effective date of hearing. It interpreted the expression "date fixed for hearing the charge" in section 101 to mean the final date appointed for hearing the charge, rather than the first date.
Issues: 1. Whether the petitioner had satisfied the requirements of section 101 of the Factories Act by filing a complaint against the actual offender and bringing him before the court on the effective date of hearing. 2. Whether the courts below erred in not considering the petitioner's complaint under section 101.
Ratio Decidendi: The court interpreted section 101 of the Factories Act to mean that the manager or occupier of a factory is entitled to file a complaint against the actual offender and bring him before the court on the final date appointed for hearing the charge, rather than the first date. This interpretation is consistent with the purpose of section 101, which is to provide a legitimate facility for the manager or occupier to bring the real offender before the court.
Final Decision: The court allowed the revision application, set aside the order passed by the courts below, and remanded the case to the trial court for being proceeded with and disposed of according to law in light of the judgment.
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 (1) (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 fi1ed 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 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
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