JUDGMENT 1. - This appeal has been filed after obtaining leave to appeal under section 378(3) Cr.PC and it directed against the order dated January 17, 1976 passed by the Munsif cum Judicial Magistrate, Bhilwara in criminal case No. 147/74. 2. The facts briefly stated are as under : On April 17, 1974 the Inspector, Shops and Commercial Establishment, Bhilwara submitted a complaint in the court Munsif-cum-Judicial, Bhilwara against the respondents Sampatmal Lodha and J.P. Bhargawa wherein it was alleged that respondent No. 1 Shri Sampatmal Lodha is the Managing Director of the Mewar Textile Mills and respondent No. 2 Shri J.P.Bhargawa is the factory Manager of the said Mills and that they were the owners/employers/managers/occupiers of the office of Mewar Textile Mills Ltd. In the said complaint it was also stated that the aforesaid office establishment was inspected on October 18, 1973 and the said inspection revealed contravention of the provisions contained in Sections 4,12(1) and 36 of the Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter referred to as `the Act') and Rules 6,22(13)(1) and 22(10) of the Rajasthan Shops and Commercial Establishment Rules, 1959 (hereinafter referred to as `the Rules"). In the said complaint it was stated that the accused persons were punishable with an offence under section 33 of the Act and Rule 25 of the Rules. On the said complaint, the judicial Magistrate passed an order on May 10, 1974 whereby he took cognizance of the offences disclosed in said complaint and, on May 11, 1974, the Judicial Magistrate, after hearing the complainant decided to impose fine of Rs. 50/-, 10/-, 10/- and 10/-(Rs. 80)-in all) in respect of offences under sections 4/33, 36/33 and Rule 22(10), 25 and directed that a notice be issued to the accused persons (respondents here) under section 206 Cr.PC. In response to the aforesaid order passed by the Judicial Magistrate, a notice dated June 10, 1974 under section 206 Cr. PC. was issued to the respondents whereby the respondents were asked to appear before the Court of Judicial Magistrate on September 20, 1974 or, if the desired to plead guilty of the charges without appearing before the Magistrate, to transmit before the aforesaid date the plea of guilty in writing and the sum of Rs. 80/- as fine. PC. was issued to the respondents whereby the respondents were asked to appear before the Court of Judicial Magistrate on September 20, 1974 or, if the desired to plead guilty of the charges without appearing before the Magistrate, to transmit before the aforesaid date the plea of guilty in writing and the sum of Rs. 80/- as fine. After the aforesaid notice had been served on the respondents, they filed an application dated December 19, 1974 whereby it was prayed that the complaint should be dismissed. In the said application it was stated that the office establishment was part of the factory which is registered under the Factories Act, 1948 (hereinafter referred to as `the Factories Act') and that all the employees working in the said factory are getting all the benefits available to them under the provisions of the Factories Act, and therefore, the provisions of the Act are not applicable to the office establishment of the respondents and the complaint was therefore, not maintainable. The Judicial Magistrate by his order dated January 17, 1976 allowed the said application of the respondents and directed that the notice issued by him under section 206 Cr. PC be withdrawn as the complaint filed by the Inspector Shops and Commercial Establishment was not legally maintainable. In the order aforesaid the Judicial Magistrate has held that workers employed in the office of the factory fall within the definition of Worker as contemplated under section 2 of the Factories Act and that in the present case it is not disputed that the clerical staff functions for the purpose of running the factory. Being aggrieved by the aforesaid order passed by the Munsif Magistrate, the State has filed this appeal after obtaining leave to appeal under section 378(3) Cr. PC. 3. I have heard Shri D.S. Shishodia, the learned Public Prosecutor and Shri M.C. Bhandari learned counsel for the respondents. 4. Shri Shishodia has submitted that the Judicial Magistrate has committed an error in allowing the application submitted by the respondents and in holding that the complaint filed by the Inspector was legally not maintainable without ascertaining the necessary facts and without affording an opportunity to the complainant to produce evidence on the question as to whether the office establishment of Mewar Textile Mills is governed by the provisions of the Act. 5. 5. The expression "shops" is defined in section 2(17) of the Act which reads as under : "Shop" means by premises where any trade or business is carried on or where services are rendered to customers and includes offices, store-rooms, go downs or warehouses, whether in the same premises or otherwise, used in connection with such trade or business but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act 1948 (Central Act LXIII of 1948)." 6. The aforesaid definition shows that a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act, has been expressly excluded from the ambit of a `shop' under the Act. In other words, in order that the Act may not apply to a particular establishment, it is necessary to determine whether the said establishment or shop is attached to a factory and whether the persons employed in the said shop or establishment are allowed the benefits provided to the workers under the Factories Act. 7. In the present case although in the application dated December 19, 1974 that was submitted on behalf of the respondents it was stated that the establishment of the respondent is registered under the Factories Act and all the employees working in the staff factory are getting the benefits in accordance with the provisions of Factories Act but the said application was not supported by an affidavit and the respondent had not placed on record any material to establish the circumstances of the aforesaid averments contained in the application. There is nothing on the record to show that the aforesaid averments contained in the application had been admitted by the complainant. Merely on the basis of the averments contained in the application submitted by the respondents, it could not be assumed that the facts stated in the said application are true. The order passed by the Magistrate shows that an opportunity was sought on behalf of the complainant to adduce evidence but the said opportunity was denied by the Magistrate on the ground that nothing had been disclosed in the complaint and, therefore, the complainant could not be allowed to lead evidence keeping the accused persons under surprise. 8. The order passed by the Magistrate shows that an opportunity was sought on behalf of the complainant to adduce evidence but the said opportunity was denied by the Magistrate on the ground that nothing had been disclosed in the complaint and, therefore, the complainant could not be allowed to lead evidence keeping the accused persons under surprise. 8. In my opinion, the Judicial Magistrate was not justified in refusing the aforesaid request made on behalf of the complainant for adducing evidence to show that the office establishment was covered by the provisions of the Act. A perusal of the complaint shows that in the complainant has come forward with the case that the office establishment is governed by the provisions of the Act. The respondents have come forward with the plea that they are governed by the exception contained in the definition of "shop" contained in section 2(17) of the Act. In view of the aforesaid plea raised by the respondents, it was necessary for the Judicial Magistrate to have held an enquiry into the question as to whether the office establishment of Mewar Textile Mills is attached to the factory and also on the question whether the employees are allowed benefits under the Factories Act, 1948. It is also to be observed that according to the complaint, the respondents had committed contravention of the provisions of section 4 of the Act during the period from 1959 to 1973. If the application dated December 19, 1974 is perused it will be mentioned that there is nothing in the said application to show that the office establishment of Mewar Textile Mills was part of the factory and the employees of the office establishment were getting the benefits under the provisions of Factories Act during the entire period from 1959 to 1973. In these circumstances, I am of the opinion that the Judicial Magistrate ought to have enquired into the correctness of the fact alleged in the application dated December 19, 1974 submitted by the respondents before allowing the application and the order passed by the Judicial Magistrate holding that the complaint was not legally maintainable cannot be sustained. 9. In these circumstances, I am of the opinion that the Judicial Magistrate ought to have enquired into the correctness of the fact alleged in the application dated December 19, 1974 submitted by the respondents before allowing the application and the order passed by the Judicial Magistrate holding that the complaint was not legally maintainable cannot be sustained. 9. In the result, the appeal is allowed, the order dated January 17, 1976 passed by the Munsif cum Judicial Magistrate, Bhilwara is set aside and the matter is remanded to the Munsif cum Judicial Magistrate for the purpose of trial in accordance with law.Leave to Appeal allowed. *******