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2015 DIGILAW 409 (HP)

Rajesh Pandya v. State of H. P.

2015-04-28

SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur, J. (Oral) The Deputy Director (Factories), Una, District Una, H.P. instituted a complaint, Annexure P-2, against the petitioners herein/accused in the complaint, for contravention of the provisions of Section 92 of the Factories Act, 1948. The complaint at the instance of the Deputy Director (Factories), Una was instituted before the criminal Court of competent jurisdiction beyond the period mandated and prescribed in Section 106 of The Factories Act, 1948, whose provisions are extracted hereinafter, inasmuch as in transgression of the mandate enshrined in Section 106 of The Factories Act, 1948 it came to be instituted beyond the period of three months prescribed therein. The provisions of Section 106 of the Factories Act, 1948 read as under:- “106. Limitation of prosecutions.—No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector: Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed. 1[Explanation.—For the purposes of this section,— (a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues; (b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired.]” 2. The complaint lodged beyond a period of three months by the complainant comprised in Annexure P-2 would render the learned Court before it had come to be instituted incapacitated to take cognizance thereon only in event of it having come to be substantiated at this stage by the petitioners herein that it had come to be lodged at the instance of a functionary/official who was empowered as an Inspector. Only in the event of substantiating material qua the factum of Deputy Director (Factories), Una being empowered as an Inspector would, the provisions of Section 106 of the Factories Act barring the criminal Court of competent jurisdiction to take cognizance thereon unless it is instituted within three months from the date of acquisition of knowledge by the Inspector qua the commission of the offence at the instance of the petitioners herein come to the aid of the petitioners herein to anvil a submission that hence, the criminal Court of competent jurisdiction is barred to take cognizance thereon. For determining whether the Deputy Director (Factories), Una, who instituted complaint comprised in Annexure P-2, was empowered as an Inspector, an advertence is required to be made to Annexure-I (annexed to the complaint), which is a notification issued by the Government of Himachal Pradesh enunciating therein that the Deputy Director (Factories) stands appointed as Deputy Chief Inspector. Now for determining whether the enunciation in Annexure P-2, of the complainant while being portrayed therein to be a Deputy Director (Factories), Una having come to be appointed under Annexure-I as Deputy Chief Inspector also stood hence appointed as Inspector for empowering him to institute a complaint under the provisions of the Factories Act, 1948 to enable the criminal Court of competent jurisdiction to take cognizance thereon, a further advertence is required to be made to Section 8 of the Factories Act, 1948 whose provisions are extracted hereinbelow:- “8. Inspectors.-.(1)……………………………… (2) The State Government May, by notification in the Official Gazette, appoint any person to be a Chief Inspector who shall in, addition to the power conferred on a Chief Inspector under this Act, exercise the power of an Inspector throughout the State. (2A) The State Government may, by notification in the Official Gazette, appoint as many Additional Chief Inspectors, Joint Chief Inspectors and Deputy Chief Inspectors and as may other officers as it thinks fit to assist the Chief Inspector and to exercise such of the powers of the Chief Inspector as may be specified in such notification. (2B) Every Additional Chief Inspector, Joint Chief Inspector, Deputy Chief Inspector and every other officer appointed under sub-section 2(A) shall, in addition to the powers of a Chief Inspector specified in the notification by which he is appointed, exercise the power of an Inspector throughout the State. 3. .…………………………………………” 3. (2B) Every Additional Chief Inspector, Joint Chief Inspector, Deputy Chief Inspector and every other officer appointed under sub-section 2(A) shall, in addition to the powers of a Chief Inspector specified in the notification by which he is appointed, exercise the power of an Inspector throughout the State. 3. .…………………………………………” 3. An incisive reading of Section 8(2B), whose provisions are extracted hereinabove display that the Deputy Chief Inspector has been mandated therein to be competent to exercise the powers of an Inspector through out the State. Obviously, then the complaint having been instituted and investigated by the Deputy Director (Factories), who stood under Annexure A-1 appointed as Deputy Chief Inspector, which designation empowers him to exercise the powers of an Inspector, besides empowers him or renders him legally capacitated to institute a complaint only within the prescribed period enshrined in Section 106 of the Factories Act, inasmuch as within 90 days from the date of his acquiring knowledge of commission of an offence at the instance of the petitioners herein was both maintainable as well as cognizable by the competent criminal Court of jurisdiction if it come to be instituted within 90 days since the acquisition of knowledge of commission of offence by the petitioners herein. Nonetheless, uncontrovertedly his having instituted the complaint beyond a period of 90 days since the acquisition of knowledge by him qua the commission of offence at the instance of the petitioners herein renders the criminal Court of competent jurisdiction incapacitated to take cognizance thereon. However, the learned Deputy Advocate General contends that the time spent for obtaining sanction to launch prosecution against the petitioners is excludable from the period of three months. Nonetheless, the said submission has no force and stands subdued by the prescription in Section 106 of the Factories Act, 1948 of the complaint being institutable within three months from the date of acquisition of knowledge of commission of offence by an Inspector. Nonetheless, the said submission has no force and stands subdued by the prescription in Section 106 of the Factories Act, 1948 of the complaint being institutable within three months from the date of acquisition of knowledge of commission of offence by an Inspector. Now with the complainant being an Inspector within the ambit of provisions of Section 8(2B) of the Factories Act, 1948 and when the mandate of Section 106 of the Factories Act which is a special legislation omits to exclude the time spent, if any, in obtaining sanction for prosecution rather it makes mandatorily obligatory upon an inspector to not beyond a period of three months from the date of acquisition of knowledge qua the commission of offence at the instance of the petitioners herein lodge a complaint against the petitioners qua the purported contravention of the provision of Section 92 of the Factories Act, 1948. Consequently, when it is uncontrovertedly established that the complaint at the instance of the respondent stood instituted beyond a period of three months/90 days, in contravention of the statutory mandate of Section 106 of the Factories Act, it hence barred the Judicial Magistrate 1st Class, Nalagarh to hence take cognizance thereon. In aftermath, the time spent by the respondent in obtaining the approval/sanction for prosecution of the petitioners herein is neither condonable nor excludable from the period of 90 days, besides it was not necessary at all to obtain sanction for prosecuting the accused/petitioners in the face of the specific mandate of Section 106 of the Factories Act enjoining an Inspector to as a complainant to within a period of 90 days from the date of acquisition of knowledge of commission of an offence at the instance the petitioners herein institute a complaint, even without any approval/sanction for prosecution of the petitioners by the appropriate government. More so, when the necessity for obtaining approval/sanction for prosecution of the petitioners herein/accused is neither an indispensable requirement nor a sine qua non for an Inspector as a complainant, to institute a complaint within the statutorily ordained period of 90 days since the acquisition of knowledge by him qua the commission of offence at the instance of the petitioners herein, as such its being awaited and the time spent in obtaining it was not excludable. Accordingly, the present petition is allowed and the complaint Annexure P-2 instituted before the learned Judicial Magistrate 1st Class, Nalagarh is quashed and set aside. All the pending applications also stand disposed of.