Judgment Shamimul Hoda, J. 1. This petition u/s. 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing of the criminal prosecution u/s. 92 of the Factories Act, 1948 as well as the order, dated 7.1.1989 by which cognizance of the offence mentioned above has been taken against the petitioner; 2. On 9.10.1988 which was Sunday, the Factory Inspector, Giridih along with head (sic) and driver inspected the establishment of the petitioner which is under name and style as Gupta & Sons and is situated in a double storyed building. The establishment of the petitioner functions; on the ground floor and the petitioner resides on the first floor with his family members. During the court of inspection the attendance and payment registers were seized. From perusal of the registers it was noticed that a number of workers engaged in over time work were 16 on the day of inspection but no prior permission as required u/s. 52, of the Factory Act (hereinafter referred to as "the Act") was taken by the petitioner. From the registers, it also transpired that 36 workers are employed in the establishment of the petitioner. At the time of inspection, it was found that the work of mica finishing by cutting and splitting of crude and semi-finished mica into required shapes and sizes as also the work of sheaving by manually operated Jharna to separate the pieces of mica of difference sizes from mixture of mica of odd shapes and sizes mixed with mica dust were being carried out. It was also found that the workers were also engaged in packing work of the finished products. The nature of the work going on in the establishment showed that it is a factory as defined in sec. 2(m)(ii) of the Act. In course of inspection it also transpired that the building in which the factory was established has not been approved by Chief Inspector of Factory nor licence under the rule 4 of the Factories Rules has been obtained by the petitioner before starting manufacturing process in the factory. The aforesaid action of the petitioner is against the provision as contained in section 6 of the Act and rules 3 and 4 of the Factories Rules. The aforesaid action of the petitioner is against the provision as contained in section 6 of the Act and rules 3 and 4 of the Factories Rules. Further case of the complainant is that he prepared inspection report and tried to hand over a copy of the same to Anil Kumar Gupta one of the sons of the petitioner who refused to receive the same. When the complainant wanted to go out of the factory along with the seized registers. Anil Kumar Gupta along with others, snatched the seized registers from the Opposite, Party No. 2. The complainant, thereafter, went to the Town Police Station Giridih and lodged First Information Report under sections 143.342.353 and 506 of the Indian Penal Code. 3. On the basis of the aforesaid facts Opposite Party No. 2 vide office letter No. 1002, dated 4.11.1988 asked the petitioner to comply with the provisions of the Act and the Rules framed there under within 15 days from the date of letter. As the petitioner did not comply with the provision of the Act and Rules framed there under the complaint was filed on 6.1.1989 before the Chief Judicial Magistrate, Giridih under section 92 of the Act. As stated above, the learned Chief Judicial Magistrate. on the basis of the aforesaid complaint took cognizance. 4. Mr. K.K. Sahay, learned counsel appearing for the petitioner, has submitted that before filing the complaint opportunity for hearing should have been given to the petitioner to decide as to whether the establishment of the petitioner which is engaged in mica mining work is liable to be registered under the provisions of the Act read with Rules framed there under. Mr. K.K. Jhunjhunwala, learned counsel for the State has submitted on the other hand, that the petitioner was given sufficient opportunity but the petitioner failed to avail the opportunity given to him. From the counter-affidavit filed in this case it appears that on 4.11.1988 petitioner was asked to comply with the provisions of the Act and Rules framed there under within 15 days from the date of receipt thereof. The petitioner by his letter, dated 19.11.1988 prayed for five days time for filing show cause. From the counter-affidavit filed in this case it appears that on 4.11.1988 petitioner was asked to comply with the provisions of the Act and Rules framed there under within 15 days from the date of receipt thereof. The petitioner by his letter, dated 19.11.1988 prayed for five days time for filing show cause. Again on 25.11.1988 he-sought one weeks time and ultimately on 8.12.1988 petitioner wrote a letter to the Inspector of Factory stating therein that he was not liable to comply the provisions of the Act and Rules framed there under. Petitioner also stated in this letter that he was enclosing three licences granted under Shops and Establishments Act but the same was never produced. 5. From perusal of the different provisions of the Act, it is evident that there is no provision that before launching the prosecution under the Act there should be first determination of the fact whether the establishment is a factory or not. This is a question of fact which can be gone into only during the course of the trial. Thus the contention of the learned counsel in this regard cannot be accepted. 6. The next contention of the learned counsel is that the establishment of the petitioner is engaged in mica mining work and as such is governed by the provisions of the Mines Act and that being the position, provisions of the Act will not be applicable. In support of his contention learned counsel has referred to different provisions of the Act and Rules made thereunder, provisions of Mines Act, provisions of Mines and Minerals (Regulation and Development) Act, 1957 and Mines Concession Rules, 1960. 7. In support of his contention learned counsel has referred to different provisions of the Act and Rules made thereunder, provisions of Mines Act, provisions of Mines and Minerals (Regulation and Development) Act, 1957 and Mines Concession Rules, 1960. 7. Sec. 2(m) of the Act defines factory which is as follows: "Factory" means a premise including " the precincts thereof (i) whereon ten or more workers, are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, - but does not include a mine subject to the operation of the Mines Act, 1952 (XXXV of 1952), or mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place. 8. From perusal of sub-clause (m)(ii), it is evident that mines which is subject to the operation of the Mines Act does not comes within the purview of the definition of Factory as defined under the Act. 9. To examine the question as to whether the establishment of the petitioner comes within the operation of the Mines Act or not; the definition of Mine has to be seen. 9. To examine the question as to whether the establishment of the petitioner comes within the operation of the Mines Act or not; the definition of Mine has to be seen. Sec. 2(j) of the Mines Act, 1952 define Mines as follows:- "Mines" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes - (i) all boring, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oil fields; (ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not; (iii) all levels and inclined planes in the course of being driven; (iv) all open cast workings; (v) all conveyors or aerial ropeways provided for the bringing into or removal from a mine of minerals or others articles or for the removal of refuse there form; (vi) all adits, levels, planes, machinery, works, railway, tramways and sidings in or adjacent to and belonging to a mine; (vii) all protective works being carried out in or adjacent to a mine; (viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management; (ix) all power stations, transformer sub-stations, converter stations, rectifier stations and accumulator storage stations for supplying electricity solely or mainly for the purpose of working the mine or a number of mines under the same management. (x) any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine or in which any operations in connection with such sand, refuse or other material is being carried on, being premises exclusively occupied by the owner of the mine; (xi) any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on; 10. On the basis of the aforesaid definitions of mines as contained in sub-clause (xi), it has been submitted that the establish men t of the petitioner comes within the purview of definition of mine. On the basis of the aforesaid definitions of mines as contained in sub-clause (xi), it has been submitted that the establish men t of the petitioner comes within the purview of definition of mine. Further to support his contention learned counsel has referred to section 9 of the Mines and Minerals (Regulation and Development) Act, 1957 which provides for royalties in respect of mining lease. In Second Schedule rate of royalty on different minerals have been specified and in item 32 rates of royalty on different forms of mica are enumerated. Learned counsel also referred to rule 14 of the Minerals Concession Rules, 1960 which lays down conditions of a prospecting licence. Thus, on the basis of the aforesaid provisions, it has been urged that the establishment of the petitioner which carries on mica work is clearly covered by the definition of mines and as such excluded from the purview of the provisions of the Act. 11. To support his contention, learned counsel for the petitioner has relied on several decisions. Reference may be made to N.K. Jain and another V/s. Labour Commissioner, Bhavani Shankar Mica Mines V/s. Union of India and Chattu Ram Darsan Ram V/s. Union of India. These cases primarily related to the fixation of minimum wages under the provisions of Minimum Wages Act to the workers employed in the mines and in this view of the matter the point in consideration was whether mica mines are included in mica work. Reliance has also been made on the case of Chairman-cum-Managing Director v. State of Bihar and others. In this case, in view of the provisions contained in sec. 4 of the Shops and Establishments Act, it was held that the provisions of Shops and Establishments Act do not apply to any precincts or premises of a mine as defined in the Mines Act. Learned counsel has also referred to the case of Bharat Coking Coal Ltd. V/s. State of Bihar and others. In this case, one of the points under consideration was whether lifting at slurry which is deposited in the river bed on their escape from the coal washeries will come within the mining operation and that the washery is a mine. In my view, the aforementioned decisions have no bearing to the facts and circumstances of this case. 12. In this case, one of the points under consideration was whether lifting at slurry which is deposited in the river bed on their escape from the coal washeries will come within the mining operation and that the washery is a mine. In my view, the aforementioned decisions have no bearing to the facts and circumstances of this case. 12. In the present case, the main question is whether the establishment of the petitioner is adjacent to and belonging to a mine. The petitioner has nowhere asserted that he is owner of a mine or he is having prospecting licence or mineral lease under the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the rules framed thereunder. Nor it is the case of the petitioner that the premises where he is carrying on mica work is adjacent to and belonging to a mine. It has only been asserted by the petitioner that he is engaged in mica mines work as agent of mica mine owners i.e. lessees. 13. From plain reading of the definition of mine as defined in sec. 2(j)(xi) of the Mines Act, it is evident that only such premises which are either in the mine or adjacent to it and belonging to a mine come within the definition of mine. In-this view of the matter, the establishment of the petitioner cannot be said to be in or adjacent to and belonging to a mine and as such it cannot be said to be governed by the provisions of the Mines Act. It will, however, be open to the petitioner to establish his claim before the trial Court. 14. According to the prosecution, in the establishment of the petitioner the work of mica finishing by cutting and splitting of crude and semi finished mica into required shapes and sizes as also the work of sheiving by manually operated Jharna to separate the pieces of mica of different sizes from mixture of mica of odd shapes and sizes mixed with mica dust were being carried out, which prima facie comes within the definition of factory as defined in sec. 2(m)(ii) of the Act unless it is otherwise proved. 15. In the facts and circumstances of the case, and the provisions of law discussed above, I find no merit in this application and it is, accordingly, dismissed.