( 1 ) BOTH these Criminal Appeals arise out of order of acquittal, both dated July 22, 1992 passed by the learned Chief Judicial Magistrate, surendranagar, acquitting the respondent-accused of the offences punishable under sec. 4 (1) and 3 (a) of the Factories Act, 1948 (for short, "the Act" ).

( 2 ) IN both the appeals, the questions of fact and law are common and therefore the appeals were heard together and are being disposed of accordingly by this common judgment. It is the prosecution case that the respondent-accused in the owner of the factory named Beep Jyoti Engineering Private Limited at 53-B, udyognagar, Surendranagar. The said factory is "factory", according to the case of the prosecution, within the meaning of Sec. 85 of the said Act. It is alleged that the factory has been doing the dangerous operations as the operations in the factory are being carried on with the aid of gas welding and power. The factory, though liable to be registered under Sec. 2 (m) (1) of the Act, has not been so registered and accordingly the respondent-accused committed offence punishable under Sec. 2 (m) (i) of the Act, as the factory was in contravention of Sec. 4 (1) of the Act. These are the allegations against the respondent-accused in Criminal Case No. 2824 of 1989.

( 3 ) IN Criminal Case No. 2823 of 1989, from which (Criminal Appeal No. 1036 of 1992) arises, the allegation against the respondent-accused is that the respondent did not get approved the plans and maps of the factory and the arrangement of machines therein from the Chief Inspector of Gujarat State, Ahmedabad, and in absence of this prior approval before starting the factory in question, no such permission is obtained and thereby the petitioner has committed offence punishable under Sec. 92 of the Act read with Rule 3 of the Gujarat Factory Rules.

( 4 ) THE respondent-accused pleaded not guilty to the aforesaid charges.

( 5 ) THE prosecution filed its arguments in writing by Exh. 39, whereas the accused persons submitted their written arguments as per Exh. 42. The learned magistrate, considering the evidence on record, came to the conclusion that the guilt against the accused was not established, as there was no material on record to show as to how many workers were employed and as to who these workers were in the factory. It was not proved that more than ten workers were working in the factory. The learned Magistrate, therefore, held that in absence of any notification under sec. 85 of the Act, the provisions of the Factories Act cannot be said to be applicable to the factory of the respondent-accused. The learned Magistrate, therefore, ordered to acquit the accused person by the impugned judgments and orders of acquittal.

( 6 ) THE State Government, being aggrieved by the aforesaid order of acquittal, has preferred both the aforesaid appeals.

( 7 ) MR. Y. M. Thakkar, learned Additional Public Prosecutor, submitted that pursuant to the notification dated March 27, 1986, which is produced at Exh. 38 in Criminal Case No. 2824 of 1982, the provisions of the Factories Act were made applicable to the factory of the respondent and as such the learned Magistrate has committed error of law in acquitting the respondent. Mr. Thakkar also referred to and relied upon the definition of "factory" occurring in Sec. 2 (m) of the Act.

( 8 ) SECTION 2 (m) of the said Act defines "factory" as meaning any premises including the prescincts thereof (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on. Explanation I of the aforesaid definition provides that for computing the