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HIGH COURT OF CALCUTTA
N.C. TALUKDAR, J.
Superintendent And Remembrancer Of Legal Affairs - Appellant
Versus
Madhablal Mehta - Respondent
Decided on : Sep 21, 1978
FACTORIES ACT - SECTION 92 - SECTION 100 - SECTION 18 (3) - RULE 35 (A) - INTERPRETATION - OCCUPIER - PROSECUTION - PROCEDURE - QUASHING OF PROCEEDINGS - SUMMARY PROCEDURE - DROPPING OF PROCEEDINGS - JURISDICTION OF HIGH COURT - INHERENT JURISDICTION - ENDS OF JUSTICE - TECHNICAL NON-CONFORMANCE - DELAY - FACTORIES ACT, 1948 - WEST BENGAL FACTORIES RULES, 1958.
Fact of the Case:
A complaint was filed against five accused persons, including the two accused opposite parties, alleging that they 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. The learned Sub-Divisional Judicial Magistrate issued summons on the accused persons as prayed for. On the next date fixed, three of the co-accused pleaded guilty and were convicted and sentenced. On an application 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, the learned Sub-Divisional Judicial Magistrate dropped the proceedings against them and recalled the warrant of arrest.
Finding of the Court:
1. The procedure adopted by the learned Sub-Divisional Judicial Magistrate, Chandernagore has not been a proper one. 2. The impugned proceedings are not otherwise maintainable in law. 3. The ultimate conclusion arrived at by the learned Trying Magistrate is upheld. 4. The proceedings are quashed ex debito justites.
Issues: 1. Whether the procedure adopted by the learned Sub-Divisional Judicial Magistrate, Chandernagore was proper? 2. Whether the impugned proceedings are maintainable in law? 3. Whether the ultimate conclusion arrived at by the learned Trying Magistrate is sustainable? 4. Whether the proceedings should be quashed?
Ratio Decidendi: 1. There is no provision in the Criminal Procedure Code for dropping proceedings in a summons procedure case. 2. The stage under section 242 Criminal Procedure Code was already over inasmuch as a substance of the accusation was stated and three of the co-accused pleaded guilty. 3. The trial had thus started and is accordingly to proceed as provide for under sections 242 and 245 Criminal Procedure Code. 4. There cannot be any "dropping" of the proceedings at this stage. 5. The provisions of Section 249, which do not apply to the facts and circumstances of the present case, also do not provide for any "dropping". 6. The word "occupier" as defined in Section 2 (n) of the Factories Act, 1948, means a person who has ultimate control over the affairs of the factory and where the said affairs are entitled to a managing agent, such agent shall be deemed to be the occupier of the factory. 7. Section 100 (2) of the Factories Act, 1948 provides that where the "occupier" of a factory is a company, any one of the directors thereof or in the case of a private company, any one of the shareholders thereof may be prosecuted and punished under this Chapter for any such offence. 8. The use of the words "any one" in Section 100 Sub section 2 read with the words "occupier" and "each" in Section 92 rule out the plural and clearly establish that any one of the directors of the Company, if there be no specific nomination of a particular specified director, may be prosecuted and punished under Section 92 of the factories Act, 1948 for a contravention of Section 18 (3) of the Factories Act, 1948 read with Rule 35 (a) of the West Bengal Factories Rules. 1958. 9. The inherent jurisdiction of the High court can be exercised to quash proceedings in a proper case either to prevent the at use of the process of any Court or otherwise to secure the ends of justice. 10. In the facts and circumstances of the case, it will be of no avail to send back the case, causing thereby a further delay in a mutter which has already been delayed on one ground or other.
Final Decision: The Rule is disposed of. The affidavit-in-opposition and the supplementary affidavit filed in Court may be kept on the record. The record may go down as early as possible.
1. 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 Lega 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, Chandernagoie, 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, Chandranagore on 14.9.72 against five accused persons, including the two accused opposite parties, stating infer 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 ms. Samnuggur Jute Factory Co. Ltd. north Mill, 26, Grand Trunk Road, p. O. and P. S. Bhadreswar, Drst. Hooghly on the 16th June, 1972, it was ascertained by him that although mare than 250 workers were ordinarily employed in the factory, the drinking water supplied to them 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 Rule 1958, prescribed under Sub-Section 4 of Section 18 of the Factories Act, 1948; that the accused Nos. 1-4 Gourilal Meluta, 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 19.12.72. 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 9.1.73 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.
An affidavit-in-opposition on be half 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 if has been averred that the opposite party No. 2 never was nor is a director of the jute mill referred to viz. the samnuggur 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 feet 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 and Co. (India) Ltd., Agents in India for the Samnuggur Jute Factory Co. Ltd. it was stated in paragraph 4 that there w
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