Bombay High Court
State Government vs Rukhabsa Jinwarsa And Anr. on 20 August, 1951
Equivalent citations: 1953CRILJ1032, AIR 1953 NAGPUR 180
ORDER
1. This is an appeal by the State Government, Madhya Pradesh, against the order of acquittal, dated 8.2.1951, of the Court of Shri W.S. Deshmukh, Magistrate First Class, Akola.
2. The respects. Rukhabdas Jinwarsa & Dharamchand Hirasa Ruiwala, owner & manager respectively of the Narandra Gin and Press Factories, Karanja, were prosecuted for bleaches of Sections 52 and 63, Factories Act, 1948, punishable under Section 92 of the Act. The breaches according to the prosecution, were detected by Shri A.P. Verkhedekar, Inspector of Factories on Sunday, 26.2.1950 when he inspected the factory. He drew up a complaint on 15.4.1950 and forwarded a copy to the respondents with the following endorsement:
They may make their representation, if any, to the District Magistrate, Akola, direct within 10 days from the date of the issue of this endorsement before the prosecution is finally sanctioned by the District Magistrate Akola.
The District Magistrate, Akola, sanctioned the prosecution of the respondents o(n 20-5-1950 and forwarded the relevant papers including. the complaint of the Inspector of Factories on the same date to Shri T.B. Wankhede, Sub-Divisional Magistrate, Murtajapur. The complaint was registered on 26.6.1950 and summonses were ordered to be issued.
3. The respondents raised an objection that the Court had no jurisdiction to take cognizance as the complaint had been filed more than 3 months after the detection of the offence. The Court upheld the objection.
4. Section 106, Factories Act, says that no Court shall take cognizance of any offence under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. On the back of the order, dated 20.5.1950, passed by the District Magistrate, Akola, and forwarded to the Sub-Divisional Magistrate, Murtajapur, there is the following endorsement:
Register the case and summon the accused Illegible 21-5 S.D.M....
Reliance is placed on this endorsement by the learned Government Pleader to show that the complaint was made within limitation. Learned Counsel for the respondents says that in the lower Court no reference was made to it. It appears that the learned Magistrate had not taken into consideration this endorsement.
5. The main question in this appeal is about limitation. The question is on what date was the complaint received by the Court. If the complaint was received on 21.5.1950 and the endorsement was made by the S.D.M. on the same date, the complaint will not be barred by limitation. We consider that additional evidence is necessary on the point. We accordingly direct the trial Court to take additional evidence regarding the date on which the complaint was received and the endorsement to which we have referred earlier. It will afford opportunity to the prosecution and the respondents to adduce evidence if they wish to do so. It should certify and forward the, evidence to this Court under Section 428(2), Criminal P. C. within 2 months of this order.
JUDGMENT
6. By our order dated 20.8.1951 we had directed the trial Court to take additional evidence regarding the date on which the complaint was received in the Court of the Magistrate and of the endorsement on the back of the order dated 20.5.1950 of the District Magistrate, Akola.
7. Two witnesses were examined on behalf of the prosecution. Respondents did not examine any witness. Prahlad Balwant Chankar, who was the reader to the Sub Divisional Magistrate, Murtizapur, Shri T.B. Wnnkhede, stated in his evidence that the complaint was brought by a peon from Akola with other connected papers on 21.5.1950. He wrote out the endorsement "Register the case and summon the accused". The initials and the date below the endorsement were in his hand-writing. He denied the suggestion that the endorsement was made some time after 8.2.1951 (the date of decision of the case), Snri Wankhede was the Sub-Divisional Magistrate, Murtizapur, from November 1949 till September 1950. According 0O him the duty of his reader was to receive the Dak delivered in his office, to make necessary endorsements on the papers and put them to him. He was in intolerant health from the middle of May till the end of July and hence some papers including the Memo No. 375-B/IV could not be attended to and were lying with him.
8. We have examined the evidence of these witnesses and considered the criticisms against it urged by the learned Counsel for the respondents. We see no reason to disbelieve the statement of the reader that he made the endorsement on 21.5.1950. It was said that the Dak Book was not produced. Shri Wankhede has said that there was no register of inward dak maintained in his office. We do not think that the reader made the endorsement after the decision of the case. The probabilities are that the relevant papers including the complaint must have been received on 21.5.1950. There could not have been a delay of over a month in the dispatch of the papers from the office of the District Magistrate, Akola, to the Sub Divisional Magistrate, Murtizapur, in view of the remark on the back of the order:
Immediate (out to-day) We are unable to accept the contention that the failure of the prosecution to point out the endorsement when the question of limitation was raised shows the non-existence of the endorsement during the trial. It appears to us that the matter was not carefully examined at that stage. Another line of attack was that the order sheet dated 26.6.1950 showed that the complaint was received on 26.6.1950. In our view, the order sheet shows that the Magistrate decided to take action on the complaint on 26.6.1950 and does not mean that it was actually received from the District Magistrate 26.6.1950.
9. Shri Phadke for the respondents contends that, cm a true construction of Section 106, Factories Act, 1948, it must be held that the complaint was not made within 3 months of the date on which the offence was committed. He says that the complaint should have been presented to the Magistrate by the District Magistrate or by some officer on his behalf. The receipt of the complaint by the reader does not constitute the making of complaint. There is no provision in the Code of Criminal Procedure requiring personal presentation of the complaint by the District Magistrate or his representative under Section 105. Factories Act. In our opinion, the requirements of law are satisfied when the complaint is forwarded be the District Magistrate and received in the Court charged with the duty of trying the offence. Here the render was acting on behalf of the Court in receiving the complaint. It was not necessary that the Magistrate should have personally received the papers.
10. Section 106, Factories Act, does not say that the cognizance should be taken within 3 months. Here the Magistrate no doubt took cognizance after 3 months but the complaint, was made within 3 months. There is no contravention of the provisions of Section 106, Factories Act. In - Provincial Govt., C.P. and Berar v. Ganpat AIR 1943 Nag 243 (A) the offence was committed on 18.2.1942. The complaint was made to the Deputy Commissioner by the Inspector of Factories on 27.7.1942. The Deputy Commissioner sanctioned the prosecution but the papers did not leave his office until 20.8.1942. The complaint was actually received by the Sub-Divisional Magistrate on 21.8.1942. It was in view of these facts that the complaint was held to be barred by limitation.
In the present case the complaint was sent from the office of the District Magistrate on 20.5.1950 and was received the next day in the Court concerned within 3 months of the-commission of the offence. The offence is said to have been committed on 26.2.1930. The decisions in - Lakhan v. Emperor in - Gopal Marwari v. Emperor AIR 1943 Pat 245 (SB)(C) are inapplicable to the present case as the facts therein are distinguishable. We hold that the complaint is not barred by limitation. We set aside the order dated 8.2.1951 acquitting the respondents. As there has been no trial on the merits we direct the lower Court to dispose of the case in accordance with the law.
11. The appeal is allowed.