JUDGMENT-Respondent accused Nihalchand was prosecuted on a complaint filed by Inspector of Factories on the allegation that when the Inspector of Factories visited Nihalchand Jiwandas Madan Bricks Factory, Jamni, tahsil and district Bhandara, on 12-1-1970 at about 10.30 a.m., it was found that the manufacturing process of bricks was done with the aid of power. It was also found that 20 workers were working in the said factory at that time. It was also noticed that power was being used to supply water fur manufacturing of the bricks. Therefore, the said factory was a factory "within the meaning of section 2 (m) (i) of the Factories Act, 1948, hereinafter referred to as the Act. As the accused was running the factory without obtaining a licence in accordance with the provisions of the Maharashtra Factories Rules, 1963, hereinafter referred to as the Rules, the accused Was prosecuted for a breach of rule 4 of the Rules read with section 92 of the Act. 2. Complainant S. K. Patil, the Factory Inspector, examined himself and his evidence in this behalf was not challenged in cross-examination. 3. The only defence which was taken by the accused in his statement under section 342 of the Code of Criminal Procedure was that in view of the grant of lease by the Collector Bhandara he was under the impression that for separate licence was necessary for the said kiln. So he did not apply for the same. 4. The trial Magistrate acquitted the accused on the ground that he was entitled for acquittal in view of the provisions of section 117 of the Act. He further held that the complaint filed by the complainant was beyond a period of three months, and therefore, the prosecution was also barred in view of the provisions of section 6 of the Act. Against this acquittal of the accused the present appeal has been filed by the State. 5. Shri V. V. Naik, who appears for the State before me, contended that the whole approach of the learned Judicial Magistrate, First Class, is wrong. According to Shri Naik the provisions of section 117 of the Act had no application to the facts and circumstances of the present case. Further he brought to my notice that the observations made. 5. Shri V. V. Naik, who appears for the State before me, contended that the whole approach of the learned Judicial Magistrate, First Class, is wrong. According to Shri Naik the provisions of section 117 of the Act had no application to the facts and circumstances of the present case. Further he brought to my notice that the observations made. by the learned Magistrate that the prosecution is not maintainable because the complaint is not made within 3 months of the date of the alleged commission of offence coming to the knowledge of the Inspector. According to Shri Naik the admitted position on record clearly indicates that on 12-1 1970 the factory of the accused was inspected by the Inspector of Factories and the complaint was filed on 13·3-1970. Therefore, obviously it was filed within 3 months of the date on R. F.-72 which the alleged commission of offence came to the knowledge of the Inspector. 6. Shri Munshi, who appears for the accused before me, has not disputed the fact that the complaint was filed within a period of 3 months of the date on which the alleged commission of offence carne to the knowledge of the Inspector. It is an admitted position that the Inspector visited the factory -on 12-1-1970 and the complaint is filed on 13-3-1970. Therefore, it is obvious that it has been filed within 3 months as contemplated by section 106 of the Act. 7. So far as the question of application of the provisions of section 117 of the Act is concerned, in my opinion, the learned Judicial Magistrate committed an error in holding that the accused acted in good faith in not applying for a licence as required under rule 4 of the Rules, and therefore, he is protected under section 117 of the Act. 8. It is not necessary for me to deal with this aspect any further in view of the decision of the Supreme Court in State of Gujarat v. Kansara Manilal1 After referring to the decisions of the various High Courts, including the decision of the Andhra Pradesh High Court in Public Prosecutor v. Mangaldas to which a reference has been made by the Judicial Magistrate, it is observed by the Supreme Court as under: "It is not necessary to refer to the lines of reasoning adopted in these cases. This language of this protecting clause is not limited to officers but is made wide to include "any person". It thus lives protection not only to an officer doing or intending to do something, in pursuance or execution of this Act but also to "any person", But critical words are "any thing done or intended to be done under the Act." The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions. It cannot confer immunity in respect of actions, which are not done under the Act but are done contrary to it. Even Resuming that an act includes an omission as started in the General Clauses Act the omission also must be one, which is enjoined by the Act, It is not sufficient to say that the act was honest. That would bring it only within the words "good faith". It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done There must be a compliance or an intended compliance with a provision of the Act, before the protection can be claimed. The section cannot cover a case of a breach or an intended breach of the Act however honest the conduct otherwise," 9. It is further clear from this decision of the Supreme Court that it is not necessary in these matters that a mens rea must always be established. The provisions of the Act and particularly rule 4 of the Rules is a regulated provision. It is enacted with a view to safeguard the interest of the public. The language of section 92 of the Act makes its contravention an absolute liability. Therefore, in my opinion, the requirement of mens rea cannot be read in the said section. I am fortified in the view which I have taken by a subsequent decision of the Supreme Court in State of Gujarat v. Acharya Shri Devendra Prasadji3.- A similar view seems to have been taken by the Madras High Court in In reo S. Seshadrinath Sarma4. The observations made by the Madras High Court in para 5 of the judgment are as under: . The observations made by the Madras High Court in para 5 of the judgment are as under: . “….The object is to bring under the purview of the legislation, certain kinds of establishments employing labour, beyond a certain limit, and concerned in production, that is for the sake of the welfare of labour and so that various restrictions and conditions might be imposed on the proprietors of that establishment in the interests of the public and the health and welfare of the labourers employed. In other words, unless this piece of legislation could be implemented by taking into account every such establishment, which Objectively fulfils the definition of a "factory" quite irrespective of the knowledge or ignorance, bona fides or otherwise of the proprietor or proprietors concerned the very purpose of the statute would be defeated. No doubt the infringements have been brought within the scope of criminal- jurisdiction but that is clearly for the purpose of effective and speedy relief, and the main intention is to impose conditions on establishments of this kind on broad grounds of social welfare and not at all merely to deal with persons in charge of such establishments because their activities might be anti-social. It appears to me to be incontrovertible that if proof of the element ot mens rea is to be added to the other factors that the prosecuting agency would have to prove. for offences under the Act, the Act may be virtually unenforceable over a wide area. On this ground. I must hold that the element of mens rea is excluded by necessary implication from the offences in the Factories Act, at any rate, from the offences we are now concerned with viz. under rule 8 and rule 4 (1) of the rules read with section 92 of the Act." 10. Therefore, in this view of the matter, in my opinion, the Judicial Magistrate had committed an error in holding that it was necessary for the prosecution to establish mens rea or that the accused was protected under section 117 of the Act. under rule 8 and rule 4 (1) of the rules read with section 92 of the Act." 10. Therefore, in this view of the matter, in my opinion, the Judicial Magistrate had committed an error in holding that it was necessary for the prosecution to establish mens rea or that the accused was protected under section 117 of the Act. As observed by the Supreme Court in State of Gujarat v. Kansara Mani/al (supra) the provisions of section 117 of the Act were not applicable to the facts and circumstances of the present case because this was a prosecution for breach or intended breach of the provisions of the Act and section 117 of the Act cannot cover a case of breach or an in tended bleach of the Act, however, honest the conduct otherwise may be. 11. From the evidence of the Factory Inspector it is quite clear that the accused was running a factory within the meaning of section 2 (m) (i) of the Act. Only because a lease was granted by the Collector it cannot be said that no licence for running such a factory was necessary. This aspect of the matter has been fully considered by this Court in Sadiabhai v. State of Maharashtra5• After referring to the provisions of the Maharashtra Minor Mineral Extraction (Vidarbha Region) Rules, 1966 as well as the Factories Act and the Rules framed there-under it was observed by this Court as under: "Since the permission to make bricks reserved to the petitioner under rule 19 (4) of the Maharashtr" Minor Mineral Extraction (Vidarbha Region) Rules. 1966, is very limited does not exempt the petitioners from the operation of the Factories Act and the Rules there-under. Since the operation conducted in the leased plot amounted to working a factory it was necessary for the petitioner to obtain a valid licence under rule 4 of the Maharashtra Factories Rules. 1968. The petitioner was, therefore liable to be convicted under section 92 of the Factories Act." 12. In the result, therefore, the appeal is allowed. The accused is convicted for an offence under section 92 of the Act read with rule 4 of the Rules and is sentenced to pay a fine of Rs. 100-, or in defeault of payment of fine to undergo rigorous imprisonment for fifteen days. One months time is granted to the accused to pay the fine. The accused is convicted for an offence under section 92 of the Act read with rule 4 of the Rules and is sentenced to pay a fine of Rs. 100-, or in defeault of payment of fine to undergo rigorous imprisonment for fifteen days. One months time is granted to the accused to pay the fine. It is hereby further directed under section 102 (1) of the Act that the accused within two months from today shall obtain a licence for the bricks factory together with the necessary registration under the Act as per the provisions of the Rules, if already not obtained. Failure on the part of the accused to comply with this direction will entail the consequences as provided in sub-section (2) of section 102 of the Factories Act.