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1960 DIGILAW 92 (PAT)

State Of Bihar v. Satnarain Bhuvania

1960-04-29

K.SAHAI

body1960
Judgment Kamla Sahai, J. 1. These appeals have been heard together because the parties are the same, and the point involved is also common. This judgment will govern them both. 2. The respondent in both cases, Satnarain Bhuwania, is the occupier and manager of Ram Sugar Factory at Amarpur in Bhagalpur District. R. C. Sinha, Inspector of Factories, Bhagalpur Circle, inspected the factory on the 9th and 10th January, 1956. He sent two petitions of complaint to the District Magistrate of Bhagalpur, one on the 13th March, 1958, which is in question in Government Appeal No. 20, and the other on the 21st March, 1956, which is in question in Government Appeal No. 21. He complained in both petitions that the respondent had committed, offences under, Section 92 of the Factories Act (LXIII of 1948), which will be referred to hereafter as the Act. The Subdivisional Magistrate of Banka took cognizance of the two cases on the 2nd and 24th, April, 1956, and they were later, transferred for disposal to Shri V. Vihari, a Judicial Magistrate with first class powers at Banka. A preliminary objection was taken in both cases before him on the 19th July, 1958, to the effect that, in view of Sec.106 of the Act, cognizance of an offence under Section 92 of the Factories Act could not be taken more than three months after the date on which the alleged commission of the offence came to the knowledge of the Inspector. This objection prevailed, and the learned Magistrate, by his order of the same date, acquitted the respondent in both cases under Sec.245 (1) of the Code of Criminal Procedure. The State of Bihar has filed these appeals against those two orders. 3. The learned Additional Standing Counsel has contended that the orders of acquittal are based upon an erroneous interpretation of Sec.106, and that that section does not prohibit the taking of cognizance after three months. It is, therefore, necessary to consider and find the true interpretation of the section which reads : "106. Limitation of prosecution. No Court shall take cognizance of any offence punishable under the 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." I have omitted the proviso because it is irrelevant for the purposes of this case. Limitation of prosecution. No Court shall take cognizance of any offence punishable under the 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." I have omitted the proviso because it is irrelevant for the purposes of this case. 4 The language used in the section is plain and unambiguous. A mere perusal of it makes it abundantly clear that the complaint must be filed within three months of the date on which the commission of the offence came to the knowledge of the Inspector. There is nothing in the section which can be construed to mean that cognizance must also be taken within the same period. 5. The learned Magistrate has relied upon a decision of R. Singh, J. in Madanlal Haweliwala V/s. State, AIR 1954 All 27 The learned Judge has made some observations in that case to the effect that, under Sec.106 of the Factories Act, cognizance of an offence can only be taken within three months of the date of knowledge of the alleged commission of the offence. With great respect, this view cannot be accepted as correct. The learned Judge has himself held in Shiva Behari V/s. State, AIR 1954 All 255 , that Sec.106 does not make it necessary that cognizance should be taken within three months of the date of knowledge of the alleged commission of the offence. The same point came up for consideration before a Division Bench of the same High Court in Gopal Das Sak-seria V/s. The State, (S) AIR 1955 All 511 . Their Lordships have held in that case that the observation in Madanlals case, (AIR 1954 All 27) to the effect that cognizance must be taken within three months was not correct. I respectfully agree with this view. 6. The next question is when a complaint can be held to have been made. The Additional Standing Counsel has argued that it must be held to have been made as soon as the Inspector despatches it by registered post to the address of the officer or Court empowered to take cognizance of the offence complained of. I do not think that it is necessary for me to go so far in the facts and circumstances of this case. I do not think that it is necessary for me to go so far in the facts and circumstances of this case. It would be sufficient to decide whether the complaint can be said to have been made, at least, on the date on which it is received in the office of the Court concerned. In my judgment, there can be no doubt that a complaint must be held to have been made on that date. 7. There is no provision either in the Criminal Procedure Code or in the Factories Act which make it necessary for the Inspector of Factories to make his complaint before a competent Court by presenting it personally or through a lawyer. He is a public servant, and, as laid down in proviso (aa) to Sec.200 of the Code of Criminal Procedure, the examination of a complainant on solemn affirmation is not required if the complaint is made by him as a public servant in the discharge of his official duties. This obviates the necessity of the public servants presence at the time of filing a complaint for the purposes of being examined under Sec.200. There is no other reason why he should present the complaint personally or through a lawyer so long as the fact that it is a genuine complaint made by him cannot be doubted. I may refer in this connection to the observations of Coxe, J. in a Division Bench decision of the Calcutta High Court in Abhayeshwari Debi v. Kishore Mohan Baneriee, ILR 42 Cal 19: (AIR 1914 Cal 479). A complaint was filed in that case by a person who claimed to be an authorised agent of Rani but he did not prove his authority to present that specific complaint which did not even bear the signature of the Rani. His Lordship observed that the Magistrate could take cognizance on the basis of that complaint only after satisfying himself that it was really the Ranis complaint irrespective of the means by which it reached him. 8. In Baldev Das V/s. The State, AIR 1952 All 937 , Brij Mohan Lall, J. had also to deal with a case under Section 92 of the Factories Act in which complaint was filed by the Inspector of Factories. 8. In Baldev Das V/s. The State, AIR 1952 All 937 , Brij Mohan Lall, J. had also to deal with a case under Section 92 of the Factories Act in which complaint was filed by the Inspector of Factories. He stated : "The complainant should have either personally presented the complaint before the City Ma-gistrate or should have engaged a lawyer to pet-form the duty of presenting the complaint in per-son. A complaint sent by post is not a validly presented complaint unless the rules permit it in any given locality, e.g., in Kumaun." With great respect, I am unable to agree with these observations. As I have said, there is no provision which makes it necessary for a public servant to present a complaint personally or through a lawyer. Under Sec.195 of the Code of Criminal Procedure, no Court can take cognizance of various offences except on the complaint in writing of the public servant or the Court concerned. It can hardly be argued that presiding officers of the courts which may have to file complaints in respect of any of the offences referred to in Clauses (b) and (c) of Sub-section (1) of Sec.195, or the public servant who may have to file a complaint in respect of any of the offences referred to in Clause (a) of Sub-section (1) of the same section, must go to the Magistrate concerned to file a complaint personally or to file it through a lawyer. 9. In State Govt. V/s. Rukhabsa Jinwarsa, AIR 1953 Nag 180, the complaint filed by the Inspector of Factories was received by the reader bf the Subdivisional Magistrate concerned within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspector but the Subdivisional Magistrate took action on it after the expiry of three months. A Division Bench of the Nagpur High Court has, in the course of the judgment, observed : "There is no provision in the Code of Criminal Procedure requiring personal presentation of the complaint by the District Magistrate or his representative under Sec.105, Factories Act. In our opinion, the requirements of law are satisfied when the complaint is forwarded by the District Magistrate and received in the court charged with the duty of trying the offence. Here the reader was acting on behalf of the Court in receiving the complaint. In our opinion, the requirements of law are satisfied when the complaint is forwarded by the District Magistrate and received in the court charged with the duty of trying the offence. Here the reader was acting on behalf of the Court in receiving the complaint. It was not necessary that the Magistrate should have personally received the papers." This decision fully supports the view which I have taken, and, in my opinion, there is no doubt that a complaint must be held, at least, to have been made on the date on which it is received in the office of a Court of competent jurisdiction. 10 The difficulty in the present cases is that the Facts have not been found. The Additional Standing Counsel has stated that the seals of the Sub-divisional Magistrate concerned on the petitions of complaint in question in both cases show that they were received within three months. On the other hand, Mr. Sanyal has argued that the endorsements of the Subdivisional Magistrate himself show that neither of the two complaints was received within three months. This question of fact will have to be determined by the Magistrate after evidence has been adduced by both parties on the point as to when the complaints were actually received in the office of the Subdivisional Magistrate of Banka. He will take evidence on this point at the same time at which the trial is held, and he will decide the question in his final judgment. 11. For the reasons which I have given above, I allow both these appeals, set aside the orders of acquittal passed by the learned Magistrate, and remand both, the cases for trial.