The prosecution of Directors of a company for offences under the Factories Act, 1948 is governed by Section 100(2) of the Act, which provides that only one Director can be prosecuted, not all of them.

N. C. Talukdar, J. :- Two points of law, one relating to procedure and the other to merits, have been raised in this Rule obtained by the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, and directed against an order dated the 9th February, 1973, passed by Shri A. K. Dutta, Sub-Divisional Judicial Magistrate, Chandernagore, Dist. Hooghly, in C.R. Case No. 793 of 1972 under Section 92 of the Factories Act, 1948 (Act LXIII of 48).

2. The facts leading on to the Rule can be put in a short compass. Shri K. K. Sengupta, Inspector of Factories, Serampore filed a petition of complaint before the learned Sub-Divisional Judicial Magistrate, Chandernagore on 14-9-1972 against five accused persons, including the two accused opposite parties, stating inter alia that the complainant is the Inspector of Factories, Serampore and filed the petition of complaint in his official capacity; that during his visit to the factory known as M/s. Samnuggur Jute Factory Co. Ltd., North Mill, 26, Grand Trunk Road, P.O. and P.S. Bhadreswar, Dist. Hooghly on the 16th June, 1972, it was ascertained by him that although more than 250 workers were ordinarily employed in the factory, the drinking water supplied to them from the 1st April, 1972, was not cooled by ice or other effective method as required under Section 18(3) of the Factories Act, 1948 read with Rule 35 of the West Bengal Factories Rules, 1958, prescribed under sub-section (4) of Section 18 of the Factories Act 1948; that the accused Nos. 1-4 Gourilal Mehta, Harilal Mehta, Madhavlal Mehta and S. C. Roy are the occupiers and the accused No. 5, R. P. Jha is the Manager of the said factory; that the accused persons had committed an offence punishable under Section 92 of the Factories Act, 1948 for a contravention of Section 18(3) of the Factories Act 1948 read with Rule 35 of the West Bengal Factories Rules, 1958, prescribed under sub-section (4) of Section 18 of the Factories Act, 1948 and accordingly process may be issued against them. The learned Sub-Divisional Judicial Magistrate by his order of the same date issued summons on the accused persons as prayed for. On 19-12-1972 the next date fixed, three of the co-accused viz., Gourilal Mehta, Harilal Mehta and R. P. Jha pleaded guilty through their learned Lawyer and the learned Sub-Divisional Judicial Magistrate, accepting the same convicted them under Section 92 of the Factories Act and sentenced them to pay a fine of Rs. 30/- each i.e., to undergo S.I. for five days each. On 9-1-1973 an application was filed on behalf of the defence objecting to the maintainability of the prosecution against the present two accused opposite parties on points of law and praying for a recall of the warrant of arrest till the disposal of the same. On hearing the parties, the learned Sub-Divisional Magistrate by his order dated the 9th February, 1973, dropped the proceedings against them and recalled the warrant of arrest. The said order has been impugned and forms the subject-matter of the present Rule.

3. An affidavit-in-opposition on behalf of the Opposite Party No. 2 and a supplementary affidavit on behalf of both the opposite parties were affirmed on the 30th July, 1973 and the 19th September, 1973, respectively. In paragraph 4 of the affidavit-in-opposition it has been averred that the opposite party No. 2 never was nor is a director of the jute mill referred to viz. the Samnuggar Jute Factory Company Limited (North Mill) and that it is wholly incorrect to say that he ever was a Director thereof. It was further submitted in paragraph 6 that the process was issued against the opposite party No. 2 upon a mistaken view of fact that he was one of the Directors of the Jute Mills concerned and as such in the interest of justice the proceedings should not be allowed to proceed. In the supplementary affidavit affirmed by the Secretary of Thomas Duff & Co. (India) Ltd. Agents in India for the Samnuggur Jute Factory Co. Ltd., it was