JUDGMENT P.N. Harkauli, J. - This application u/s 482 Code of Criminal Procedure arises in the following circumstances; Some time in the year 1972 M/s. Bharat Heavy Electricals Ltd., Tiruchirapalli, Madras, having its registered office at New Delhi, invited tenders for the erection of 2X110 MW. boilers and for testing and commissioning of boiler for Panki Thermal power station. In response to this notice M/s. Engineering Construction Corporation Ltd. Bombay (herein after referred to as the company) submitted a tender from its office in Madras. This tender was accepted and, thereupon, the company commenced the erection work inside the premises and precincts of the Panki Thermal Power Station. 2. Applicant No. 1 is the Regional Manager of the company. Applicant No. 2 is an engineer employed by the company, and at the relevant time he was posted at Kanpur to supervise the execution of the aforesaid work. 3. On 15--11--1973, while the aforesaid work was being executed at the premises of the Panki Thermal power station, Sri K. C. Sexena, Labour Inspector, Kanpur Region, Kanpur went there for inspection and demanded for inspection the register of attendance and wages in Form 'G' the register of leave in Form 'H', and certain other registers relating to the workers employed by the company in connection with the execution of the aforesaid work. Mr. K. C. Saxena then found that no such registers were being maintained, and naturally, therefore, they were not produced before him. He also found that the notice required to be displayed were not displayed. 4. Thereupon he filed a complaint in the Court of the Additional City Magistrate (1) Kanpur against these two officers of the company, i.e. applicant Nos. 1 and 2, alleging that they had 'contravened Sections 32, 17, 18 and 20 of the U.P. Dukan Aur Vanijya Adhis-than Adhiniyam, 1962 (hereinafter referred to as the Act) read with Rules 18, 20, 13, 8 and 9 of the U.P. Dukan Aur Vanijya Adhisthan Niyamawali 1962" and praying that these two applicants be punished u/s 35 of the Act for the said contraventions. 5. The applicants moved an application before the learned Magistrate praying that the criminal proceedings started against them on the basis of this complaint should be dropped and they should be discharged because the Act had no application to them. 6. 5. The applicants moved an application before the learned Magistrate praying that the criminal proceedings started against them on the basis of this complaint should be dropped and they should be discharged because the Act had no application to them. 6. The contention of the applicants ran thus: In order to attract the application of the Act and the rules framed thereunder, it must be shown that the body or organisation to which the Act is sought to be applied is either a "Commercial Establishment" or a 'shop' as defined in the Act. In order to be a "Commercial establishment" as defined in the Act, there must first of all be "Premises", but the applicants had no premises and they were executing the work in the premises or precincts of the Panki Thermal power station. Then, in view of the definition of this phrase, the premises must not be the premises of a Factory, but the work which was being executed was admittedly being carried out in the premises of the said power station, which was a factory within the meaning of Factories Act and so the organisation of the applicants could not be a commercial establishment. Next, it was necessary to bring the organisation of the applicants within the meaning of this phrase that the activity which it was carrying on could amount to trade, manufacture or business for profit, or any work incidental or ancillary thereto. But the work which was being done in the present case could not be said to be "trade" or "manufacture", nor could be said to be "business" because this work connotes a continuous activity or operation and not a single activity under a single contract. Similarly, in order to fall within the definition of "shop" the body or organisation must have a "premises", which essential element was lacking in this case. Further as mentioned before the work being carried out in this case could not be said to be either "wholesale or retail trade" or "business" or rendering of services to customers, and so to this single activity or venture could not come within the definition of "shop" as given in the Act. If it was not covered by either of these terms i.e. "commercial -establishment" or "shop" the Act could not apply. 7. If it was not covered by either of these terms i.e. "commercial -establishment" or "shop" the Act could not apply. 7. The second contention was that in any case applicant No. 1 could not be liable because it was applicant No. 2 who was looking after the execution of the work on behalf of the company and the applicant No. 1, who was the Regional Manager, apart from occasional visits for inspection of the progress of the work, had nothing to do with the supervision of the work, or management or control over the work. 8. The third contention was that the work which the employees of the company were doing in connection with the contracts in question was of an inherently intermittent nature, and in view of Section 3(4) of the Act, the Act was not applicable. 9. The prosecution filed a reply to this application of the applicants disputing these allegations and contending that the applicants in fact had 'a distinct premises of its office located at Panki Power House site wherefrom the erection and other official work is conducted that the applicants had "separate establishment of their routine, clerical and supervisory staff", and that "the person found working in the office and erection work were directly employed by M/s. Engineering Construction Corporation and kept under the control of the accused persons (i.e. both the applicants and not merely applicant No. 1), to execute the erection work", and therefore the establishment of the applicants was a "commercial establishment" and fell within the ambit of Act. Thus, it was contended by the prosecution that both the applicants were liable to be prosecuted and punished. It was accordingly prayed that the applicants' application be dismissed and the case be proceeded with. 10. The learned Magistrate does not appear to have followed the real points in controversy, and he, for reasons, the relevance of which is difficult to understand, held that the applicants organisation was covered by the definition of the phrase "commercial establishment" and so the Act was applicable. In this view of the matter, he rejected the "preliminary objection" of the applicants and ordered that the case shall proceed. 11. In this view of the matter, he rejected the "preliminary objection" of the applicants and ordered that the case shall proceed. 11. The learned Counsel for the applicants contended that the Act should not apply 10 the applicants for the reasons already mentioned and so the prosecution of the applicants was liable to be quashed, and, in any case, the prosecution of applicant No. 1, who was not concerned with the management, super-vision or control of the activity in question, should be quashed. It is however not possible to accede to this argument at this stage. It is true, as argued by the learned Counsel, that the Act only applies to "shops" or "commercial establishments" as defined in the Act, and so unless it is shown that the applicants fall in one or the other category they cannot be prosecuted for contravening the provisions of the Act or the rules framed thereunder. But it is clear that the question whether the applicants come within one or the other of the aforesaid categories will depend upon (1) whether both or either of them is concerned with the management, supervision or control of the work being carried out or not, (2) whether the applicants' have a premises or not (as already pointed out this is disputed between the parties), (3) whether the premises where the work is being carried out can be said to be the premises of a factory or not and (4) whether the nature of work will come within the meaning of the word "business" as used in the Act. These are mixed questions of fact and law. They can only be decided in the light of the evidence produced. No evidence was, however, produced in the case. It is, therefore, not possible at this stage to decide whether the Act is applicable to the applicants or not, consequently, whether the prosecution is liable to be quashed or not. As pointed out by the Supreme Court in Thiru V. Thanigachalam Vs. State of Tamil Nadu, AIR 1976 SC 2300 , where evidence is required for the determination of a question, as in a mixed question for law and fact, it is erroneous to decide the same without evidence. Consequently, I am clearly of the opinion that the prayer for quashing of the prosecution cannot be granted at this stage. 12. State of Tamil Nadu, AIR 1976 SC 2300 , where evidence is required for the determination of a question, as in a mixed question for law and fact, it is erroneous to decide the same without evidence. Consequently, I am clearly of the opinion that the prayer for quashing of the prosecution cannot be granted at this stage. 12. The learned Counsel for the applicants next submitted that the finding recorded by the learned Magistrate that the applicants are running a "commercial establishment" as defined in the Act, should be set aside for as long as it stands the question, whether the Act is applicable to the applicants or not, cannot be reopened in that Court. The submission is obviously sound. As already pointed out the questions whether the Act was applicable, and if so whether it was applicable to both the applicants or only one of them, were mixed questions of law and fact and so the learned Magistrate erred in deciding the same without evidence. 13. Accordingly, this application is allowed in part and the finding recorded by the learned Magistrate that the applicants were covered by the definition of "commercial establishment" as defined in the Act, is set aside. The matter will be open for decision in the light of evidence produced.