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2016 DIGILAW 2177 (HP)

Neel Kant Saxena v. State of H. P.

2016-10-05

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, Judge (oral) 1. The Deputy Director (Factories), Una, District Una, H.P. instituted a complaint, Annexure P-2, against the petitioners herein/accused for contravention of the provisions of Section 92 of the Factories Act, 1948. The complaint at the instance of the Deputy Director (Factories), Una stood instituted before the Criminal Court of competent jurisdiction beyond the period mandated and prescribed in Section 106 of The Factories Act, 1948, provisions whereof stand extracted hereinafter, significantly transgression of the mandate enshrined in Section 106 of The Factories Act, 1948 arose on the apposite complaint standing instituted therebefore 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. Uncontrovertedly the complainant instituted the apposite 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 rendering hence the Criminal Court of competent jurisdiction incapacitated to take cognizance thereon. However, the learned Addtional 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 a prescription embodied in Section 106 of the Factories Act, 1948 qua the apposite complaint being institutable within three months from the date of acquisition of knowledge by an Inspector qua commission of offence. Nonetheless, the said submission has no force and stands subdued by a prescription embodied in Section 106 of the Factories Act, 1948 qua the apposite complaint being institutable within three months from the date of acquisition of knowledge by an Inspector qua commission of offence. Now with the complainant being an Inspector within the ambit of provisions of Section 8 (2B) of the Factories Act, 1948 besides 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 of the accused 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 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 since acquisition of knowledge by an Inspector qua commission of an offence whereupon the statutory mandate of Section 106 of the Factories Act stood contravened, in sequel it barred the learned Additional Chief Judicial Magistrate, Nalagarh to take cognizance thereon. In aftermath, the time spent by the respondent in obtaining the approval/sanction from the competent authority for prosecution of the petitioners herein is neither condonable nor excludable from the period of 90 days, besides it was not necessary at all for the Inspector concerned to obtain sanction for prosecuting the accused/petitioners in the face of the specific mandate of Section 106 of the Factories Act whereupon he stood enjoined to as a complainant to within a period of 90 days from the date of acquisition of knowledge institute a complaint qua commission of an offence at the instance the petitioners herein, even without receiving any approval/sanction for prosecution of the petitioners from 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 Additional Chief Judicial Magistrate, Nalagarh is quashed and set aside. All the pending applications also stand disposed of.