JUDGMENT
1. This is an appeal on behalf of the Local Government against an order of the Deputy Magistrate of Howrah dated 28th October 1927, by which he acquitted the accused under Section 245, Criminal P.C., of the offences alleged to have been committed by him under Section 41(a) read with Section 26 and Section 41(h) read with Section 35, Factories Act (Act 12 of 1911, as amended-by Act 5 of 1923).
2. What happened in this case was as follows : On 28th June 1927, the Inspector of Factories, Bengal, inspected the Howrah Jute Mills of which the accused Murray was the Manager and found three persons, named, Jokadia, Varalee and Sukfaria, employed and working in the Drawing Department without having any specified hours fixed for their employment in contravention of Section 26, Factories Act, and further found that though the said three persons had commenced to work at 9-30 a.m. their names had not been entered in the prescribed register at 10-20 in contravention of Section 35 of the Act and Rule 76 thereunder.
3. The accused Murray appeared before the Magistrate on 16th August 1927, and tiled two petitions of complaint under Section 42 of the Act in respect of the aforesaid offences against three other persons named Whitton, Charan Das Chatterjee and Sali Dutt, alleging inter alia that he had always used due diligence to enforce the provisions of the Act, that the offence if committed at all, was committed without his knowledge and consent and that the persons mentioned in his petition of complaint who were under him and whose duty it was to look to the proper and lawful working of their department were directly responsible for any wrongful acts of commission or omission.
4. The Magistrate enquired into the complaint of Mr. Murray. He started two order-sheets, one being numbered 1136 of 1927 and the other 1149 of 1927. The three persons named by Mr. Murray appeared before the Magistrate on 26th August 1927 and pleaded not guilty to both the charges. It is alleged that the Magistrate proceeded to try Mr. Murray and the aforesaid three persons on the two accusations summarily and in one proceeding and that although Mr. Murray was an accused person under trial, the Magistrate allowed him to give evidence on oath.
5. It appears from the Magistrate’s judgment that he went into the merits and found that it was Charan Das Chatterjee whose duty it was to keep the register properly and that the manager, Mr. Murray, took all necessary steps to see that the Factories Act and the rules thereunder were not violated. He came to the conclusion that Murray, Whitton and Sali Dutt were not guilty and acquitted them. He found accused Charan Das Chatterjee guilty under Section 41(h), Factories Act, and fined him Rs. 30 and, in default, fifteen days rigorous imprisonment.
6. The contention on behalf of the Local Government is that the joint trial of the several persons involved in the two accusations is contrary to the provisions of the Code of Criminal Procedure and that the procedure adopted by the learned-Magistrate in examining an accused person as a witness in the case is contrary to law and has vitiated the trial.
7. Section 42, Sub-section 1, Factories Act runs as follows:
Where the occupier or manager of a factory is charged with an offence against this Act, he shall be entitled upon complaint duly made by him to have any other persons whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge, and if, after the commission of the offence has been proved, the occupier or the manager of the factory proves to the satisfaction of the Court:
(a) That he has used duo diligence to enforce the execution of this Act, and;
(b) That the said other person committed the offence in question without his knowledge, consent or connivance;
that other person shall be convicted of the offence and shall be liable to the like fine as if he ware the occupier or manager, and the occupier or manager, shall be discharged from any liability under this Act.
8. It is quite clear from the language used that when the manager or occupier of a factory is charged with an offence, he is entitled to make a complaint against these whom he considers the offender or offenders and to have such person or persons brought before the Court at the time appointed for hearing of the charge brought against him. This means that the manager or occupier who is charged and the person or persons whom he complains against are both before the Court at the same time; in other words, the section contemplates both sets of complainants and accused being before the Court at one and the same time. When both parties, i.e., both sets of complainants and accused are before the Court, it must in the first instance be proved in the case against the manager or occupier that an offence against the Act has been committed. As soon as this is proved, the manager or occupier has to prove two things, namely, that he has himself used due diligence to enforce the execution of the Act and that the other persons named by him have committed the offence in question without his knowledge, consent or connivance. If these two things are proved, the persons named by tire manager or occupier shall be convicted and the manager or occupier shall be discharged from liability under the Act.
9. The structure of the portion of the section quoted above indicates that one proceeding is split up into two proceedings and that while the manager or occupier is accused of having committed an offence under the Act, he is also a complainant on his complaint against the other person or persons he has brought in. In the proceeding in which the manager or the occupier is the complainant, he is liable to be cross-examined by the other person or persons who has or have been, brought before the Court on his complaint. This, of course, must mean that the manager or occupier qua complainant must give evidence himself. The procedure indicated above is a special one prescribed by the Act and it would appear from an examination of the record in this case that the Magistrate has in no way departed from that procedure. In our opinion, there is no substance in the objection that the manager or occupier who initially is charged with an offence against the Act cannot go into the witness-box and give evidence himself. In the circumstances contemplated in the latter part of the section quoted above he goes into the witness-box not as an accused in the case originally started against him but in his own right as a complainant on his complaint against the other person or persons whom he has brought in. We have examined the record for ourselves and are of opinion that what the Magistrate has done in this matter is in substantial compliance with the pro visions of the Act. But even if it be considered an irregularity to dispose of the two matters by one judgment, or to record the evidence in the two matters together, it is an irregularity which in no way has caused any prejudice to any of the parties concerned and is as a matter of fact well covered by the provisions of Section 537, Criminal P.C. In our opinion the present appeal fails and must be dismissed. We desire to observe that we have examined the merits also and on the merits it is not a matter for our interference.
10. Appeals Nos. 3, 4, 5 and 6.
11. The facts of these cases are on all fours with the facts in appeal No. 2 and the order that we have just passed will apply to them also.
12. The connected rule in Revision Cases. Nos. 120, 154, 179, 180 and 181 must also be discharged.
