1. This is an appeal by the Government of Bombay against the acquittal of the accused by a Bench of Honorary Presidency Magistrates of an offence under Section 390(7) of the City of Bombay Municipal Act, 1888. The learned Magistrates acquitted the accused on four grounds, and the Chairman of the Bench wrote a long and carefully reasoned judgment, for which we are indebted. The fact that we differ from the conclusions reached by the learned Magistrates should not be taken as detracting from our appreciation of the usefulness of their work.
2. The facts which are not in dispute are that in 1938 the accused applied for permission to start a factory in which mechanical power was to be employed, and in March, 1939, he was prosecuted for establishing that factory without the permission of the Municipal Commissioner as required under Section 390 (1). Subsequently an arrangement was come to between the Commissioner and the accused, and the prosecution was withdrawn, and the accused was acquitted on July 27, 1939. The actual charge of which he was acquitted was of working a silk mill, without obtaining previous written permission from the Municipal Commissioner, on March 23, 1939. On January 25, 1941, the present prosecution was launched, and the accused was charged with working fifty-five electric motors for the purpose of conducting a textile mill on the premises described, without obtaining previous written permission from the Municipal Commissioner, on January 22, 1941.
3. One objection which the learned Magistrates upheld was to the form of the summons. I do not think that the summons is very cleverly worded. It would have been better to charge the accused in the words of the section constituting the offence, with having worked a factory in which mechanical power was used, instead of charging him with working fifty-five electric motors for the purpose of conducting a textile mill; but I think it clear that the summons sufficiently informed the accused of the act complained of. In my view no serious objection can be taken to the form of the summons.
4. The real question which arises for decision is as to the proper construction to be placed on Section 390, Sub-section (1), of the City of Bombay Municipal Act, 1888. That Sub-section provides that no person shall newly establish in any premises any factory in which it is intended that steam, water or other mechanical power shall be employed, without the previous written permission of the Commissioner, nor shall any person work, or allow to be worked, any such factory without such permission. The latter sentence was added by amendment in 1916. The learned Magistrates consider that the second portion of the section only applies to a newly established factory. They think that the section prohibits the establishment of a new factory, and further prohibits any person from working such newly established factory. I am quite unable to extract that meaning from the section. The reference in the last part of the section to working 'any such factory' must relate back to the description of the factory contained in the earlier part of the section, and the only description of a factory is of one in which it is intended that steam, water or other mechanical power shall be employed. The first part of the section constitutes as an offence the newly establishing of a factory, but the reference to such newly establishing does not form part of the description of the factory. It is to be noticed further that the second part of the section applies generally to any person, and not merely to the person who has newly established a factory. I have no doubt whatever that the section constitutes two quite independent offences: one, establishing a new factory in which mechanical power is intended to be employed without permission, and the other, working such a factory, that is to say, a factory in which mechanical power is intended to be employed, without permission. The expression 'such factory' is also found in Sub-sections (2) and (3) of Section 390, and it is perfectly plain that in those Sub-sections the reference is to the description of the factory contained in Sub-section (1) as a factory in which steam, water or other mechanical power is to be employed. It is moreover obvious that for practical purposes, it would be almost impossible to say when a factory ceases to be newly established. Therefore, I am not prepared to accept the view of the learned Magistrates that no offence was committed here, because at the time when the accused was charged with working a factory, it had ceased to be a newly established factory.
5. The learned Magistrates also held that the prosecution was barred under Section 514, which, so far as material, stipulates that no person shall be liable to punishment for any offence under Section 390, except within three months next after the commission or discovery of such offence. The learned Magistrates held that the offence was committed once and for all, when work was commenced in the factory. But on the construction which we have put upon Section 390, the offence consists of working a factory, and every day, on which the factory is worked, an offence is committed. The learned Magistrates were, I think, somewhat misled by Emperor v. Bechardas : (1930)32BOMLR768 and particularly by the head-note. The real question in that case was whether the offence charged was what is known as a continuing offence, and the Court held that it was not. As I ventured to point out in Emperor v. Chhotatlal Amarchand : AIR1937Bom1 a continuing offence is not a very happy expression, because a person must be charged with committing an offence on a particular date, and he cannot be charged with committing an offence de die in diem. But the expression has a well recognized meaning. It means that if an act of the accused constitutes an offence, and if that act continues from day to day, then a fresh offence is committed on every day on which the act continues. If the act prohibited is that of working a factory an offence is committed on every day on which the factory is worked. It may not strictly be a continuing offence, because the owner of the factory may cease to work it for a longer or a shorter period and then reopen it; but on any day on which he is shown to have worked the factory without the requisite permission, he has committed an offence, and it is immaterial to consider whether he committed an offence by working the factory on some previous occasion. The head-note in Emperor v. Bechardas (supra) says: 'Limitation for a prosecution for a continuing offence runs from the time when the offence is first committed.' If the expression 'the offence is first committed' refers to the date when the act constituting the offence first took place, the statement is obviously wrong, because it would abolish altogether the distinction which has been recognized over and over again between an act which constitutes an offence once and for all, and an act which continues, and, therefore, constitutes a fresh offence on every day on which it continues. Under Section 390 the establishing of a factory without permission is an offence committed once and for all when the factory is established, but the working of a factory without permission is an offence which arises on every day on which the factory is so worked; and as the prosecution in this case is for working the factory two days before the date of the summons, it is plain that Section 514 is no bar to the prosecution.
6. Then the other point on which the learned Magistrates held that the accused was entitled to acquittal was that his previous acquittal in 1939 constituted a bar to his conviction in 1941 under Section 403, Criminal Procedure Code. But that really raises the same point. It is obvious that if an offence is committed on every day on which the factory is working without permission, the acquittal of so working the factory in July, 1939, cannot operate as a bar to a charge against the accused of so working the factory in January, 1941.
7. In my opinion none of the grounds set up on behalf of the accused are sound, and I think, therefore, that we must convict him. But this seems to be a case in which the accused has acted bona fide. He is, I gather from the evidence, working a factory which, no doubt, employs a certain number of people, and is to some extent useful to the public. The difficulty is that he has not succeeded in coming to terms with the Municipal Commissioner as to the manner of working the factory. It is to be hoped that this difficulty will be overcome and that it will not be necessary for the accused to close his factory altogether.
8. We convict the accused, and fine him Rs. 10.
9. I agree.