The definition of "shop" in section 2(17) of the Rajasthan Shops and Commercial Establishments Act, 1958, excludes a commercial establishment or shop attached to a factory where employees are allowed benefits under the Factories Act, 1948, but the onus is on the employer to prove that their establishment falls within this exception.

1. - This appeal has been filed after obtaining leave to appeal under section 378(3) Cr.PC and it directed against the order dated January 17, 1976 passed by the Munsif cum Judicial Magistrate, Bhilwara in criminal case No. 147/74.

2. The facts briefly stated are as under : On April 17, 1974 the Inspector, Shops and Commercial Establishment, Bhilwara submitted a complaint in the court Munsif-cum-Judicial, Bhilwara against the respondents Sampatmal Lodha and J.P. Bhargawa wherein it was alleged that respondent No. 1 Shri Sampatmal Lodha is the Managing Director of the Mewar Textile Mills and respondent No. 2 Shri J.P.Bhargawa is the factory Manager of the said Mills and that they were the owners/employers/managers/occupiers of the office of Mewar Textile Mills Ltd. In the said complaint it was also stated that the aforesaid office establishment was inspected on October 18, 1973 and the said inspection revealed contravention of the provisions contained in Sections 4,12(1) and 36 of the Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter referred to as `the Act') and Rules 6,22(13)(1) and 22(10) of the Rajasthan Shops and Commercial Establishment Rules, 1959 (hereinafter referred to as `the Rules"). In the said complaint it was stated that the accused persons were punishable with an offence under section 33 of the Act and Rule 25 of the Rules. On the said complaint, the judicial Magistrate passed an order on May 10, 1974 whereby he took cognizance of the offences disclosed in said complaint and, on May 11, 1974, the Judicial Magistrate, after hearing the complainant decided to impose fine of Rs. 50/-, 10/-, 10/- and 10/-(Rs. 80)-in all) in respect of offences under sections 4/33, 36/33 and Rule 22(10), 25 and directed that a notice be issued to the accused persons (respondents here) under section 206 Cr.PC. In response to the aforesaid order passed by the Judicial Magistrate, a notice dated June 10, 1974 under section 206 Cr. PC. was issued to the respondents whereby the respondents were asked to appear before the Court of Judicial Magistrate on September 20, 1974 or, if the desired to plead guilty of the charges without appearing before the Magistrate, to transmit before the aforesaid date the plea of guilty in writing and the sum of Rs. 80/- as fine. After the aforesaid notice had been served on the respondents, they filed an application dated December 19, 1974 whereby it was prayed that the complaint should be dismissed. In the said application it was stated that the office establishment was part of the factory which is registered under the Factories Act, 1948 (hereinafter referred to as `the Factories Act') and that all the employees working in the said factory are getting all the benefits available to them under the provisions of the Factories Act, and therefore, the provisions of the Act are not applicable to the office establishment of the respondents and the complaint was therefore, not maintainable. The Judicial Magistrate by his order dated January 17, 1976 allowed the said application of the respondents and directed that the notice issued by him under section 206 Cr. PC be withdrawn as the complaint filed by the Inspector Shops and Commercial Establishment was not legally maintainable. In the order aforesaid the Judicial Magistrate has held that workers employed in the office of the factory fall within the definition of Worker as contemplated under section 2 of the Factories Act and that in the present case it is not disputed that the clerical staff functions for the purpose of running the factory. Being aggrieved by the aforesaid order passed by the Munsif Magistrate, the State has filed this appeal after obtaining leave to appeal under section 378(3) Cr. PC.

3. I have heard Shri D.S. Shishodia, the learned Public Prosecutor and Shri M.C. Bhandari learned counsel for the respondents.

4. Shri Shishodia has submitted that the Judicial Magistrate has committed an error in allowing the application s