John Beaumont, Kt., C.J.
1. This is a reference made by the Sessions Judge of Ahmedabad, and it raises a question of procedure on a prosecution under Section 60(b)(i) of the Factories Act, 1934.
2. The learned Sessions Judge referred the question to us because he thinks it is not free from doubt, and that it is desirable to get a decision. But I rather gather that his own opinion is not very strongly in favour of our accepting his reference. Government support the reference, which has rather surprised me, since I should have thought that it was tol the public interests to oppose it, because, if we accept the reference, I am satisfied that serious evasions of the Factories Act may follow.
3. The point which arises is this. The accused is the occupier of the Arvind Mills in Ahmedabad, and he was prosecuted under Section 60 of the Factories Act in respect of offences under Section s 37 and 42, that is in substance for allowing workmen to work beyond the prescribed hours. The complaint against him was lodged by the Factory Inspector. The accused by way of defence lodged a complaint against the Assistant Spinning Master under Section 71 of the Factories Act. Section 71) provides as follows :-
71(2). Where the occupier or manager of a factory is charged with an offence against this Act, he shall be entitled upon coimplaint duly made by him to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge ; and if, after the commission of the offence has been proved, the occupier or manager of the factory proves to the satisfaction of the Court -
(a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance, that other person shall be convicted of the offence and shall be liable to the like fine as if he were the occupier or manager, and the occupier or manager shall be discharged from any liability under this Act.
4. The question for our decision is whether, when a complaint is lodged by an accused under Section 71, the Factory Inspector, as the complainant in the original complaint, can cross-examine the accused when he goes into' the witness-box to prove his own complaint. The effect of Section 71 is that when an occupier or manager is charged and the Inspector proves that an offence has been committed, a special statutory defence is open to the occupier or manager, which statutory defence involves his lodging a complaint against a third party which complaint has to be heard at the same time as the original complaint. In a sense no doubt you have two complaints, but they are both in connection with the same offence and they both have to be dealt with together. It was held by the Calcutta High Court in Government of Bengal v. J.A. Murray (1928) I.L.R. 56 Cal. 400 that on the second complaint the occupier or manager (i.e. the accused on the first complaint) has to go into the witness-box to prove his complaint, and he is liable to be cross-examined, although in that case the only actual decision was that he was liable to be cross-examined by the other person or persons who had been brought before the Court on his complaint; but the Court did not hold that the Factory Inspector was not entitled to cross-examine the witne Section s In the present case the learned Magistrate allowed the Factory Inspector to cross-examine the occupier (i.e. the accused on the first complaint), who had gone into the witness-box on the second complaint, and I think the learned Magistrate was perfectly right. The learned Sessions Judge has referred the matter to us because he feels a doubt about it. He suggests that the second complaint was an independent complaint and that the Factory Inspector was not a party to it; but the learned Judge has lost sight of the fact that the second complaint is merely a statutory defence to the first complaint, and the accused on the first complaint, having, elected to avail himself of such statutory defence, has thereby abandoned the privilege of not going into the witness-box, a privilege which otherwise he would have enjoyed as an accused person. Having gone into the witness-box, I' can see no reason why the complainant on the first complaint should not be at liberty to cross-examine him in order to show that the defence to the first complaint is not well-founded. Unless the Factory Inspector has the right of cross-examination, it is plain that serious evasions of the Act may take place. It may be easy for the manager and occupier to get some underling to accept responsibility, and the underling, who is probably always a first offender, would get off lightly whilst the real culprit, who may be an old offender in this respect, would escape altogether by a collusive defence. I think that in the interests of justice it is desirable that the Factory Inspector should have the right to cross-examine a person whom he has charged if that person chooses to go into the witness-box to set up a statutory defence. We, therefore, make no order on the reference.
5. I agree.