Research › Browse › Judgment

Allahabad High Court · body

1978 DIGILAW 660 (ALL)

P. N. Dubey v. State Of Uttar Pradesh

1978-07-10

U.C.SRIVASTAVA

body1978
JUDGMENT U.C. Srivastava, J. 1. THESE two applications under Section 482, Cr.P.C read with Section 307, Cr P.C. have: been filed against the order dated 20-8-77 passed by the Judicial Magistrate Lucknow, under the Factories Act and the Rules framed thereunder on similar grounds. 2. In Criminal Miscellaneous Case No. 1543 of 1977 the applicant is occupier of M/s. Sundari Surti Stores, Tikait Rai Talab Road, Lucknow, while in Criminal Miscellaneous Case No. 1624 of 1977 the applicant is occupier of M/s. Anandi Udoyog, Aishbagh, Lucknow. In the first case the inspection was made on 7th August, 1976 while in the second case the inspection was made on 9-6-76 by the Inspector of Factories and on the basis of inspection reports in both these cases complaints under secs. 6 and 7 of the Factories Act, read with rules 3, 6, 13 and 14 of U. P. Factories Rules were sent by registered post to the court of the Judicial Magistrate, Lucknow. Before the said court objections were filed by the applicants challenging the jurisdiction of the court and maintainability of the complaint. The objection of the applicants in both the cases was that there was no complaint in the eyes of law and further that by virtue of section 105 of the Factories Act the complaint was not entertainable, the same not having been made by the Inspector of the area. The Judicial Magistrate in both these cases by separate orders dated 20-8-1976 in Criminal Miscellaneous Case Nos. 1543 of 1977 and 1624 of 1977 overruled the said objection, hence these applications under Sec. 482 of the Code of Criminal Procedure on the ground that since the prosecution of the applicants is based on no complaint and the court was proceeding without jurisdiction the same amounts to abuse of process of law and violation of provisions of law and as such the ends of justice require that the proceedings pending in the court of the Judicial Magistrate be quashed. Sri Akhilesh Sahai, learned counsel for the applicants, made two submissions before me. Sri Akhilesh Sahai, learned counsel for the applicants, made two submissions before me. The first submission made in both the cases is that the complaint was sent by the Inspector by post and the cognizance of the same was taken which could not have been done in view of the fact that it was no complaint in the eyes of law, as such no proceedings on the basis of the same could take place. 3. SECTION 105 of the Factories Act reads as follows : "Cognizance of offences-(1) No court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of an Inspector. (2) ..............." Thus in respect of violation or contravention of the provisions of the Factories Act and the Rules framed thereunder the inspector is empowered under that Act either to file the complaint or accord sanction for the same. A perusal of the provisions of the Factories Act shows that there is no provision in the said Act for personal presentation of the complaint to the competent Magistrate by the Inspector or some one under the authority of the Inspector. Power to file a complaint is conferred upon the Inspector who is to bring to the notice of the Magistrate the contravention and violation of the provisions of the Act or Rules framed thereunder by some manager or occupier and that power is not excluded by the provisions of Section 9 of the Indian Factories Act and as such even if a complaint is sent by the Inspector by post, the same is to be received and proceedings thereon can take place. 4. SECTION 190 of the Code of Criminal Procedure reads as under :- S. 190 "(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the Second class specifically empowered in this behalf under sub-section (2) may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts ; (c) Upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offence as are within his competence to inquire into or try." Section 190 Cr.P.C. as it stood at the relevant point to time, nowhere provided for filing of the complaint by the inspector before the court concerned. Section 190, Cr.P.C. has not been amended and the same also does not exclude the receipt of the complaint by post and if some such complaint is received by post the Magistrate is empowered to proceed on the basis of the same. Clause (c) of Section 190 of the Code of Criminal Procedure confers upon a Magistrate wide power to take cognizance of an offence even if information and knowledge is received by him from some quarter that an offence has been committed which may thus include information received by way of complaint through post. Thus the first contention of the learned counsel has got no force and it cannot be said that there has been any abuse of process of law or the Magistrate has acted or is acting in violence of law what to say flagrant violation of law. 5. THE second contention of the learned counsel was that in view of Section 8, read with Section 105 of the Factories Act, the Inspector in this case had no authority or power to make a complaint and as such the proceedings on the basis of the said complaints are without jurisdiction. Learned counsel contended that under Section 8 of the Factories Act the State Government may by notification in the official Gazette, appoint such persons as possess the prescribed qualification to be Inspectors for the purposes of this Act and may assign them such local limits as it may think fit. Section 8 (6) provided that in any area where there are more Inspectors than one, the State Government may, by notification aforesaid, declare the powers which such Inspectors shall respectively exercise and the Inspector to whom the Prescribed notices are to be sent. In view of this there are more than one Inspectors and no such notification assigning the area to Inspectors in these two cases who filed the complaints having been issued, the complaints made by them could not have been received and no proceedings on this basis could have taken place. 6. In view of this there are more than one Inspectors and no such notification assigning the area to Inspectors in these two cases who filed the complaints having been issued, the complaints made by them could not have been received and no proceedings on this basis could have taken place. 6. LEARNED counsel contended that in view of the notification no. 5754 (LM) (v)/XVIII-284 (M)-49 dated November 23, 1949 the Chief Inspector of Factories alone has power to institute prosecutions and the said power cannot be delegated to any one. The said notification reads as under : - "November 23, 1949 No. 5754 (LM) (v)/XVIII-284 (LM) (v)/XVIII-284 (LM)- 49. In exercise of the powers conferred by sub-section (6) of Sec. 8 of the Factories Act, 1948, the Governor is pleased to declare that : (a) The Inspector referred to in sub-section (1) of Section 105 of the Act shall be the Chief Inspector of Factories U. P. In all cases of proposals for prosecution, except District Magistrates and the Labour Commissioner, U. P., who are empowered to institute prosecution themselves; and (b) The Inspector to whom notices are required to be sent by the said Act or the Rules framed thereunder, shall in each area, be the Inspector of Factories of the region concerned and if specifically so required by the said Act or the Rules framed thereunder, also the Chief Inspector of Factories, Uttar Pradesh, Kanpur." It seems that the subsequent amendment was not taken notice of by the learned counsel, a reference to which has been made in the counter affidavit. Vide notification no. 2544(SM)/XXXVI- A-1195(SM)-62, dated August 17, 1963 - in sub para (1) of the aforesaid notification between the words "Chief Inspector of Factories, U. P." and the words "in all cases", the words "or the Inspector of Factories" were inserted. In view of the said notification power was conferred upon the Inspector, of Factories also along with the Chief Inspector of Factories to institute prosecutions. Learned counsel then contended that no notification in respect of these Inspectors appointing them as Inspectors for a particular area, which is enjoined upon the State Government under Section 8 (1) and 8 (6) of the Factories Act, having been issued the said Inspectors were not appointed for any particular area and as such they were not competent to file the complaints in question. Secs. Secs. 8 (1) and 8 (6) of the Factories Act reads as follows: "S. 8 (1) :-Inspectors-The State Government may by notification in the official Gazette, appoint such persons as possess the prescribed qualification to be Inspectors for the purposes of this Act and may assign to them such local limits as it may think fit. S. 8 (6): In any area where there are more Inspectors than one the State Government may, by notification as aforesaid, declare the powers which such Inspectors shall respectively exercise and the Inspector to whom the prescribed notices are to be sent." 7. THE learned counsel contended that this position will also be clear from a perusal of Section 9 of the Factories Act which reads as follows : S. 9 : "Subject to any rules made in this behalf an Inspector may within the local limits for which he is appointed ............exercise such other powers as may be prescribed for carrying out the purposes of this Act." 8. In the present case from the counter affidavit which is filed on behalf of the State it is clear that vide notification no. 1139/8/36-5-2046 (8)/71 dated April 21, 1976, Purshottam Dass Gupta and Sudhakar Ojha, the two Inspectors, were also appointed Inspectors of Factories for whole of the Uttar Pradesh and so far as Sudhakar Ojha of Criminal Miscellaneous Case No. 1624 of 1977 is concerned there was an order no. 247-52-F/CA dated April 19, 1976 from the Labour Commissioner, U. P., a copy of which has been annexed as Annexure-1 to the counter affidavit, by which Sudhaker Ojha, Inspector of Factories, Lucknow, was appointed for Lucknow Region. The order dated 21st April, 1976 shows that all the Inspectors who were till then under training at Kanpur were posted in various Regional Offices and Purshottam Dass Gupta made the complaint in the first case who was posted in the Lucknow Regional Office. In the supplementary affidavit it was admitted on behalf of the applicants that there was earlier a notification no. 1139/ 8/36-5-2046 (8)/63, dated April 21, 1976 by which all these Inspectors were earlier appointed as Inspectors for the entire State of Uttar Pradesh. The complaint in the present case, was signed by both these Inspectors after 21st April, 1976. In the supplementary affidavit it was admitted on behalf of the applicants that there was earlier a notification no. 1139/ 8/36-5-2046 (8)/63, dated April 21, 1976 by which all these Inspectors were earlier appointed as Inspectors for the entire State of Uttar Pradesh. The complaint in the present case, was signed by both these Inspectors after 21st April, 1976. Thus both the Inspectors were also Inspectors for the entire State of Uttar Pradesh and after getting training they were posted in the Regional Office at Lucknow and at the relevant point of time they were Inspectors attached to the Lucknow Regional Office after having been transferred from Kanpur to the Lucknow Regional Office. A perusal of Section 8 of the Factories Act makes it clear that the said section only requires that the State Government should notify in the official Gazette the names of persons appointed as Inspectors of Factories to carry out the purpose of the Act. In this behalf there appears to be no other requirement. The use of word 'may' in Section 8 itself makes it clear that there is discretion in the State Government to assign the Inspector of Factories duties which may be carried out by him within any particular local limits. The said section nowhere makes it imperative that the jurisdiction of the Inspector may also be notified, and the local limits may also be mentioned in the appointment order. It is for the State Government to confer powers upon the Inspector to exercise jurisdiction either throughout the State of Uttar Pradesh or within particular area. 9. SECTION 105 of the Factories Act nowhere limits the jurisdiction of an Inspector to whom a particular local limit has been assigned who can alone carry out the purpose of this Act within a particular limit and file a complaint. Sections 8 and 9 of the Factories Act, quoted above, also do not lay down the same and there is no conflict between Sections 8 and 9 of the Factories Act and Section 105 of the said Act as has been contended by the learned counsel. 10. Sections 8 and 9 of the Factories Act, quoted above, also do not lay down the same and there is no conflict between Sections 8 and 9 of the Factories Act and Section 105 of the said Act as has been contended by the learned counsel. 10. FROM a perusal of the Factories Act itself it Is clear that various duties have been assigned to the Inspector of Factories whose jurisdiction extends to the whole of State of U. P. Undoubtedly local limits are to be assigned to a particular Inspector, may it be for avoiding confusion, but that could not be taken to mean that an Inspector who has been appointed for the whole State of Uttar Pradesh cannot be assigned duty for filing a complaint in another region. Purshottam Dass was attached to the Lucknow Regional Office and similarly Sudhakar Ojha was attached to the Lucknow Regional Office. They having been posted and attached with Lucknow Regional Office, it cannot be said that no particular area has been assigned to them. In this view also the contention raised by the learned counsel fails. 11. THE learned counsel then contended that these Inspectors were appointed and posted in the Regional Office and as such their jurisdiction was confined to the office only. A perusal of the powers and duties of the Inspectors will show that their work is not ministerial and in the posting order the words 'Regional Office' have been used meaning thereby that they have been appointed for Lucknow region having its office at Lucknow. Every region has its own office and there cannot be any region without regional office. Thus this objection raised by the learned counsel is also without any force. As has been stated above, the posting of the Inspectors to the Lucknow Regional Office will make them Inspectors for Lucknow Region and the absence of any notification under section 8 (1) of the Factories Act which is not required for such Inspectors, will not invalidate their appointment and will not take away the power of making complaints by these Inspectors so far as their right is concerned. Thus this contention which has been raised by the learned counsel is also devoid of any substance and both the Inspectors were thus empowered to make the complaint. 12. Thus this contention which has been raised by the learned counsel is also devoid of any substance and both the Inspectors were thus empowered to make the complaint. 12. In view of what has been held above, Section 482 of the Code of Criminal Procedure has got no (sic) applications are not maintainable and are dismissed.