M.H. Beg, J.
1. This is an appeal by the State against an acquittal of Balwant Singh Birdhi, manager of two factories, Modi Torch Works and Modi Hurricane Lantern Factory, from a charge under Rule 123 of the Uttar Pradesh Factories Rules, 1950. Two complaints were filed before the trial Court. They were identically worded except that one complaint was with respect to tho non-production of the inspection book relating to Modi Torch Works, Modinagar, and the other was with respect to the non-production of the inspection book of Modi Hurricane Lantern Factory. The demand for the inspection books of the two factories was made at one and the same time by the same inspector and the two cases could well have been the subject-matter of a single trial by virtue of the provisions of either Section 235, Criminal Procedure Code, or in any case, of Section 234 (1), Criminal Procedure Code. The learned magistrate, who tried the two case3 separately, recorded evidence in the two cases separately, but acquitted the respondent in both tho cases by a single judgment dated 16 July 1963. The learned magistrate ordered that the judgment in Case No. 58/9 of 1963 relating to the Modi Toroh Works, which is before me in appeal, will be placed on the record of Case No. 60/9 of 1963 relating to the Modi Hurricane Lantern Factory.
2. The learned magistrate did not accept the statement of Sri P. C. Joshi, the factory-inspector, that the inspection book was not produced because the inspector did not promise that he will not mention in it that the factory was working on a Sunday. On the other hand, the learned magistrate, who had the advantage of seeing the witnesses depose, accepted the version of the respondent-manager that he offered to produce the inspection book if the inspector would wait for some time to enable him to send for the law office clerk to open the law office in which the inspection book was kept. The defence case was that the inspection book, was kept in the law office which was closed as it was a Sunday, and that the key was with the clerk concerned who was not present at that time owing to the holiday. The Chief Inspector of Factories, who had filed the two complaints, did not appeal at all against either of the two acquittals. An appeal has, however, been preferred under Section 417, Criminal Procedure Code, by the State from the order of acquittal in Case No. 58/9 of 1963 relating-to the Modi Torch Works.
3. Sri K. C. Agarwal, appearing for the respondent, has put forward preliminary objections. He contends that the complainant, the Chief Inspector of Factories, not having appealed under Section 417 (3), Criminal Procedure Code, the State could not have appealed against the order of acquittal. It Is submitted that, in a criminal case instituted upon a complaint, the only means of questioning an acquittal is by way of a special leave to appeal under Section 417 (3), Criminal Procedure Code. On the other hand, it has been argued for the State that the right of appeal under Section 417 (1) given to the State is against any order of acquittal in any case either by the trial Court or by an appellate Court. Reliance is placed on the language of Section 417 (1), Criminal Procedure Code, which subjects this right of the State to prefer an appeal against any order of acquittal to the provisions of Sub-section (6) of Section 417, Criminal Procedure Code, only. It does not subject this special right of the State to the provisions of Section 417 (3), Criminal Procedure Code. Apparently, the intention of the legislature was to give the State a right of appeal without obtaining special leave from every order of acquittal and to subject this right only to the condition that no such right will be available in a case in which the complainant could have filed an application for grant of special leave, and, after having filed such an application, has failed to obtain that special leave. In the present case, the complainant could certainly have filed an application for grant of special leave under Section 417 (3), Criminal Procedure Code. If such an application had been filed and refused, the State would not have had a right of appeal at all. But, no such application having been filed by the complainant or rejected, the right of the State to file an appeal under Section 417 (1), Criminal Procedure Code, remains intact. The language of' Section 417 (1), Criminal Procedure Code, supports the contention put forward on behalf of the State. I, therefore, overrule this preliminary objection.
4. Another ground taken against the hearing of this appeal is that the State did not prefer an appeal against the identically worded order In the connected Criminal Case No. 60/9 of 1963. It Is true that the occasion on which the non-production of the registers of the two factories Is said to have taken place was the same. Apparently, the demand was a common demand for both the registers. The failure of the State to appeal against the order of acquittal in the connected case could operate as res judicata if it came within the purview of the principle laid down by Lord McDermott in Sambasivam v. Public Prosecutor 1950 A.C. 458 in the following words:
The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
In so far as the State was not a party to the proceedings in the trial Court, I do not think that the abovementioned principle would debar the State from appealing from the order of acquittal In Criminal Case No. 58/9 of 1963 which is before me.
5. The argument on behalf of the appellant-State was that the learned magistrate has used the evidence given by Balwant Singh Birdhi, the accused-respondent, in Criminal Case No. 60/9 of 1963, as evidence in Criminal Case No. 58/9 of 1963 relating to the Modi Torch Works which is before me. The learned magistrate observed that the accused had given a statement under oath which was corroborated by the statement of Gurbachan Singh, the timekeeper of the factory, whereas the statement of the factory inspector remained uncorroborated. It is true that the learned magistrate was thinking of the statement made by respondent, Balwant Singh Birdhi, under oath in Criminal Case No. 60/9 of 1963 when he observed that the accused had given a statement under oath. In that case, the accused had appeared as a defence witness under Section 342A, Criminal Procedure Code, whereas in the case before me, under appeal now, the only defence witness was Gurbachan Singh, the timekeeper of the factory. Apparently the magistrate had erroneously used the defence evidence in the two cases as common defence evidence in each case. I have, therefore, examined the whole evidence in the case afresh. I find that the statement of respondent-accused under Section 342, Criminal Procedure Code, In Case No. 58/9 of 1963 is to the same effect as his statement under oath in Criminal Case No. 60/9 of 1963. Facts stated there appear Inherently probable. There seemed to be no advantage to be gained from deliberate failure to produce the inspection book. Moreover, the allegation now made by the factory inspector, that the respondent had offered to produce the inspection book on condition that no entry is made that the factory was working on a Sunday, is not found either in the inspection note (Ex. Ka. 1) or in the complaint (Ex. Ka. 2). The version set up by the factory inspector for the first time during the trial is not acceptable for this additional reason.
6. So far as Rule 123 of the Uttar Pradesh Factories Rules, 1950, is concerned, I find that it only makes the manager responsible for the production of the inspection register on demand. The duty to produce in response to the demand does not include or cast any further duty on the manager to keep or carry the inspection book with him all the time. A reasonable interpretation has to be given to the implications of the duty imposed. The demand was not met by a refusal on the part of the respondent-accused, but the respondent had asked for a reasonable opportunity to make the register available. The factory inspector had himself, apparently, waived the demand itself by stating that he could make an inspection note on a separate sheet of paper. This was the very plausible explanation which has, very rightly, been accepted by the trial Court. A demand, as contemplated by Rule 123 of the Uttar Pradesh Factory Rules, does not mean a demand, which has been waived in this fashion. I, therefore, hold that the respondent was rightly acquitted.
7. In the result, I dismiss this appeal.