CHHANGANI, J.—This is a reference by the Sessions Judge, Jodhpur, and arises out of a complaint filed on 7.5.1963 by B.L. Agarwal, Inspector of Factories and Boiler against Shri I. S. Gill and Col. Sardar C. S. Angre, Manager and Proprietor respectively of the Jodhpur Cold Storage, Sojatigate, Jodhpur, in the court of City Magistrate, Jodhpur.

2. The material allegations on which the prosecution is founded are contained in para (3) of the complaint and may be set forth as follows —

That on 11.4.1963 the complainant inspected the premises of the Jodhpur Cold Storage and found that since 27th cf August, 1962, the said cold storage had been employing 13 workers for storing potatoes in the cold storage hall maintained with a 35 H. P. Motor Engine and for removing them from the cold storage hall, drying them, grading them and refilling them in the bags. The expression "grading" has been used as the English equivalent of the Hindi word "35337" which implies sorting out of potatoes. On the basis of the above mentioned activities carried on at the cold storage premises, it is claimed that the cold storage constitutes a factory within the meaning of sec. 2(m) of the Factories Act. It is further averred that the accused did not obtain a registration as required by sec. 6 of the Act and rule 4 of the rules framed thereunder. It is further stated that the accused petitioners were guilty and punishable under sec. 92 read with sec. 6, 7 and 61 of the Factories Act.

3. The City Magistrate registered the case against the accused petitioners and issued processes for their attendance. Aggrieved by the order of the Magistrate registering a case and issuing processes the petitioner Col. Sardar C. S. Angre filed a revi-sion application in the court of Sessions Judge, Jodhpur. The petitioners case before the Sessions Judge was that even on the facts as stated in the complaint the business premises of the accused-petitioner did not fall within the meaning of the word "factory" and, consequently, no charge against him was sustainable. The petitions also pleaded thai the complaint was barred in view of 106 of the Factories Act a: having been filed after the expiry of three months of the date of the commission of the offence. Both the contentions of the petitioner prevailed with the Sessions Judge and he came to the conclusion that no case was made out against the petitioner. He has, therefore, made the present reference for quashing the proceedings.

4. The reference has been opposed by the State. This case came up before a learned single Judge of this Court on 25th of February, 1964, and the learned counsel for both the parties wanted some time for putting in affidavits showing precisely the process, that is employed for preserving the potatoes in the cold storage. B. L Agarwal the complainant and Abdul Hafiz Khan, who was incharge of the said cold storage on behalf of the petitioner, filed affidavits. On 21st May, 1964, the learned Judge allowed an opportunity to the parties to cross-examine the deponents of both the affidavits. It was at this stage that the case came before me. On 13th August 1964, the cross examination of the persons who filed the affidavits, was completed by me.

5. Now, so far as the factual position is concerned, there is, and can be, no controversy whatsoever. The petitioner has approached this Court at an initial stage of the case. His case is that even on the facts as stated in the complaint no case is made out. Naturally, he cannot counter the allegations of facts on which the prosecution relies. It may also be conceded that it is open to the prosecution to suggest further clarification and amplification of the facts, provided they are not altogether foreign to the basic statements made in the complaint. Now, no doubt the affidavits filed by the parties do appear to raise a controversy. The complainant alleges (1) "That as soon as the bags of potatoes are received from countryside, they are opened in the open field and then sortin

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