The main legal point established in the judgment is the scope and application of section 101 of the Factories Act, emphasizing the occupier's right to point out the actual offender and the requirement for notice and opportunity for the actual offender to defend his case.

MRIDULA BHATKAR, J.

1. This writ petition is filed by the original accused against whom the respondent Deputy Director, Industrial Safety and Health, Pune and Inspector u/s. 8 of Factories Act, has initiated proceeding u/s. 21(1)(iv)(C) and 92 of Factories Act, 1948. The petitioner is a Director of company, who owns the factory, wherein accident of one worker has taken place in the year 2009 and therefore the respondent has prosecuted her u/s. 21(1)(iv)(C) and 92 of Factories Act, 1948 and a private complaint was filed in the year 2010 by Factory Inspector/respondent, pursuant to which the process was issued on 06/04/2011 u/s. 21(1)(iv)(C) and 92 of Factories Act, 1948. In the said complaint the present petitioner appeared and she moved application u/s. 101 of Factories Act, seeking exemption from liability in alleged offences on the ground that she has neither directly or indirectly involved in the factory and the offence has taken place due to the negligence of one Chandresh Jayantilal Shah, who is in-charge of the factory and therefore he is liable and responsible for the accident. Said application was rejected by an order dated 03/12/2015 by Additional Chief Judicial Magistrate, Pune. Hence this petition.

2. The learned counsel for the petitioner has submitted that learned Magistrate has committed mistake in rejecting this application. The applicant is an occupier under the definition of section 2(n) of the Factories Act and therefore this application u/s. 101 of the Factories Act was filed in order to bring the real person or culprit before the Court. Instead of passing appropriate orders therein, the learned Judge has erroneously rejected the said complaint and thus liberty which is made available under the law in view of section 101 to bring real culprit before the Court, is denied to the present petitioner. He submitted that as per section 101 of the Factories Act, the requirement of giving minimum 3 days prior notice to the factory inspector before filing of the complaint, is complied with by the complainant i.e. the present petitioner. He relied on Ex. C collectively, which is the correspondence between the complainant and the factory inspector. He also relied on Ex. D i.e. the verification of complainant i.e. the present petitioner recorded by the Chief Judicial Magistrate Court on 14/03/2013. In support of his submissions he relied on the order dated 11/03/2016 passed by the single judge in Criminal Petition No. 200331/16, in the case of Sri C. Venugopal and another, versus, State of Karnataka.

3. The learned prosecutor opposed this petition and she submitted that the 3 days prior notice, as required under section 101 of the Factories Act, was not received by the respondent. She relied on Ex. D1 and the contents in the affidavit of respondent, wherein specifically non-receipt of 3 days prior notice is mentioned. She argued that the offence is made out in the original complaint against the occupier i.e. the present petitioner and therefore the order passed by the learned Metropolitan Magistrate is to be maintained. She further submitted that this order should have been challenged in the revision, therefore, this writ petition is not maintainable.

4. Perused the original complaint, the application u/s. 101 of the Factories Act and the impugned order passed by the learned Magistrate, so also the correspondence, which is relied by the learned counsel for the petitioner u/s. 101 of the Factories Act. The accident cannot be denied at this stage. The Prosecution u/s. 101 of the Factories Act is not the matter of challenge before this Court. The challenge is limited in respect of compliance of the procedure u/s. 101 of the Factories Act and the learned Magistrate failed to understand the remedy under section 101 available to the complainant i.e. the petitioner and erroneously rejected the entire application. Ex. C shows that a notice was sent on 08/01/2013. There is an acknowledgment of the office of the respondent.