1. The above appeal is filed by the State of Maharashtra against the order of acquittal passed by the Judicial Magistrate, First Class, IInd Court, Thana, on April 15, 1969, acquitting the respondent Vinod S. Shah, Manager of Mukund Iron and Steel Works Ltd. at Kalwa, District Thana. The only question which arises in this appeal is whether the pit in respect of which the Inspector of Factories had filed a complaint against the accused was a pit in the factory within the meaning of Section 33 of the Factories Act, 1948.
2. It is undisputed that the pit was being dug 400 feet away from the sheds including the stores and offices in which the factory of Messrs Mukund Iron and Steel Works Ltd. has been working. The entire area of land belonging to the factory consists of 150 acres. It is clear from the sketch exh. 8 in the case that the sheds comprising the factory proper cover an area of only 5 acres. In the complaint filed by the Factory Inspector on September 2, 1968, it was alleged that when the Factory Inspector visited the factory on June 4, 1968, to inquire into the fatal accidents that occurred to a female worker Manjulabai Anauda and her son Mahendra Ananda aged about 5 years on the previous day, June 3, 1968, he discovered that Manjulabai had gone near the nit of the size of 15 feet by 10 feet and 9 feet deep containing water upto a height of 7 feet to wash some clothes and both the mother and her son were drowned in the pit. It was, therefore, alleged that the pit in the ground was a source of danger, as it was not securely fenced or covered at the time of the accident; and, therefore, the accused who was the Manager of the factory of Mukund Iron and Steel Works Ltd. was guilty of contravening the provisions of Section 33 of the Factories Act, 1948.
3. Now, Section 33 lays down that in every factory every fixed vessel, sump, tank, pit or opening in the ground or in a floor which, by reason of its depth, situation, construction or contents, is or may be a source of danger, shall be either securely covered or securely fenced. It is, therefore, essential that the vessel, sump, tank, pit or opening in the ground or in a floor referred to therein must be in the factory. 'Factory' is defined in Section 2(m) as follows:
'factory' means any premises including the precincts thereof-
(i) whereon tenor 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 powers, 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 a 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 a railway running shed;
Sub-clause (ii) of Clause (m) would not apply to this case, as Mukund Iron and Steel Works factory is run with the aid of powers. It is true that 'factory' means premises including the precincts; but even in respect of such precincts, it is necessary that 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 powers or is ordinarily so carried on. The prosecution must, therefore, prove that the pit which is admittedly in the precincts of the factory being in the environments of the factory was situated in such precincts (i) whereon ten or more workers were working or were working on any day of the preceding twelve months and (ii) in any part of the precincts a manufacturing process was being carried on. The Factory Inspector has admitted in the course of his evidence in cross-examination that the distance between the pit and the steel yard where the deceased woman Was supposed to work was about 400 feet. There is no evidence whatsoever on the record to show that in the precincts of the factory where the pit is situated ten or more workers were working and were carrying on any manufacturing process with the aid of powers. In my judgment, the prosecution was, therefore, entirely misconceived.
4. However, the learned Magistrate acquitted the accused on the ground that the pit was dug for extending the factory and the work was in progress, because that was the defence which was taken by the accused before the learned Magistrate. It was necessary for the learned Magistrate to direct his attention to the provisions of the Factories Act and to see whether the prosecution led evidence to prove the charge under Section 33 read with Section 92 of the Factories Act. It was also necessary for the prosecution to lead proper evidence with regard to the facts which would bring home the charge under Section 33 read with Section 92 of the Factories Act.
5. Mr. Bhonsale, the learned Assistant Government Pleader, contended that the reasoning of the learned Magistrate that merely because the pit was being dug and the work was in progress the accused was entitled to an acquittal is not justified by law. That submission of Mr. Bhosale is correct, because the said reasonings adopted by the defence lawyer and the learned Magistrate are not relevant to the question as to whether the accused had committed the offence under Section 33 read with Section 92 of the Factories Act. Nevertheless, the order of acquittal must stand, because I find that the prosecution has failed to establish that the precincts where the pit is dug are precincts in which ten or more workers ordinarily worked and in any part of which any manufacturing process was being carried on with the aid of powers as required by Section 2(m) of the Factories Act.
6. In the result, the appeal fails and is dismissed. Bail bond cancelled.