B.J. Divan, J.
1. The appellant herein is the State of Gujarat and it has appealed against the order of acquittal passed by the learned Judicial Magistrate, First Class, Manavadar, in Criminal Case No. 982/1972 of his Court. The charge against the accused was that he had failed to provide proper safe-guard against moving parts of a machinery in his factory as required by Section 21(1)(iv)(c) of the Factories Act, 1948 and bad thereby committed an offence punishable under Section 92 of the Factories Act.
2. The prosecution case was that the accused was the Manager of M/s. Prabhat Solvent Extraction Industries Ltd., Manava-dar, which was running a factory for the extraction of oil from oil cake, which is a bye-product of oil-expeller industry. This was a factory as defined by Section 2(m) of the Factories Act. 1948 and that fact is not in dispute. The case of the prosecution was that for dealing with the raw material viz., Oil cake, there is a sifter which is referred to on the record as 'Charna'. After the material is sifted through the 'Charna', the material passes to the horizontal conveyer from the bottom of 'Charna'. Through the horizontal conveyer, the material passes on to the vertical conveyer and then the material passes to other parts of the factory. In between 'Charna' and the verticle conveyer is a space of about 2 1/2 feet. The horizontal conveyer is kept under-ground below this space of 2 1/2 ft., persons pass on the horizontal conveyer. Each of the conveyers horizontal as well as vertical has moving parts called worms and on rotation of the worms when the conveyer is working, the material passes along the conveyer from one end to another. The worms are rotated by electric motor and belt. Each of the three parts of the machinery, the sifter, horizontal conveyer and the vertical conveyer works by electricity and there is a separate switch for each of these separate parts of the machinery. In order to see whether the worms are clean or not or in order to dean the horizontal conveyer when the material gets stuck up in that conveyer, an opening called a window 19'xlO' is provided just above the horizontal conveyer on the ground level. There is a lid on this window so that when the lid is closed, the workers can walk over the lid of the window without any hazard to themselves. The end of the window nearest to the vertical conveyer is only 5' away from the vertical conveyer. In order to see whether the worms are clean or not or in order to clean the horizontal conveyer, the electric motors of both the vertical and horizontal conveyer have to be stopped and then the worms are to be cleaned. The vertical conveyer is in a sealed condition and cannot be seen but one can see whether it is working or not from the belt or the starter of the motor. Even from the noise made by the vertical conveyer when it is working, one can find out that the vertical conveyer is working. If any one of the three parts is not working and there is some blockage or stopping of movement of the raw material, all the three parts are to be stopped by stopping the three electrical motors.
3. On May 13, 1970, one worker Ladha Devraj working in this factory found that some material had got stuck in the horizontal conveyer and he, therefore, stopped the horizontal conveyer, opened the window and began to clean it but the vertical conveyer was not stopped and it was in motion at the time. While cleaning the horizontal conveyer the hand of the workman came into contact with one of the worms of the vertical conveyer and he suffered an injury. Thereafter the Factory Inspector, Shantilal, P. W. 1, the complainant in the case, visited the factory on May 14, 1970 and inquired into the incident. He also saw the injured person in the Civil Hospital at Junagadh. According to the Factory Inspector, the small window on the horizontal conveyer was not proper so far as the protection of the worker was concerned. The accused could have provided bars on the small window so that any worker putting his hand inside the window would not come into contact with the vertical conveyer while cleaning the horizontal conveyer. The worker was not in a position to see the vertical conveyer working. The evidence on the record clearly establishes in this case that the injured person, Ladha. was in charge of the vertical conveyer as well as horizontal conveyer and according to the normal procedure he should have stopped the vertical conveyer as well: but it is well-settled that merely because a worker is a bit careless in his work or is likely to be careless in his work, the employer or the occupier of the factory is not absolved of his duty to provide guards or fencing against the moving parts of the machinery with which he is likely to come into contact. In the instant case, the distance between the end of the window which was meant for cleaning horizontal conveyer and the vertical conveyer was only 5'. The worker putting his hand into the window after it was opened for the purpose of cleaning the horizontal conveyer was likely to come into contact with the moving parts of the vertical conveyer if the vertical conveyer was working.
4. Mr. Hathi for the respondent-accused contended that it was impossible to provide bars near the window because any such bars would prevent the free movement of the raw material from the sifter to the vertical conveyer. There is no substance in this contention of Mr. Hathi. It is to be borne in mind that the raw material which is passing along the horizontal conveyar has already passed through the 'Charna' and if it can pass through the Charna it is difficult to imagine why it cannot pass through the bars if any such bars are provided at the end of the small window, between the end of the window and the vertical conveyer. The liability under the Factories Act was to provide guards or fencing against the moving machinery. Section 21(1)(iv)(c) of the Factories Act provides that in every Factory, unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, every dangerous part of any other machinery shall be securely fenced by safeguards of substantial construction which shall be kept in position while the parts of machinery they are fencing are in motion or in use.
5. From the above discussion it is clear that the accused, the occupier of the factory, in his capacity as the Manager of she Factory had failed to see that protection against the moving parts of the vertical conveyer was provided between the end of the window above the horizontal conveyer and moving parts of the vertical conveyer and he had, therefore, failed to discharge his duty iunder Section 21(1)(iv)(c) and had thereby committed an offence punishable under Section 92 of the Factories Act, 1948. The learned Magistrate has held that the injury was 'caused to Ladha because he did not stop the ;vertical conveyer but the gravamen of the charge is not that any injury was caused to Ladha but that as required by the Factories Act, the accused had failed to provide sufficient protection against the moving parts of the machinery. The whole approach of the learned Magistrate in this case is governed (by the factor of negligence on the part of Ladha in not stopping the vertical conveyer but the charge against the accused was not .that any injury was caused to Ladha because of the negligence of the accused but the charge against him was that the accused had failed in his duty to provide sufficient guard for fencing against the moving parts of the Vertical conveyer. Therefore, with respect to him, the learned Magistrate was in error when he overlooked this aspect of the case and acquitted the accused.
6. I. therefore, allow this Criminal Appeal, set aside the order of acquittal and convict the accused under Section 92 of the Factories Act for breach of the provisions of Section 21(1)(iv)(c) of the Factories Act and sentence the accused to pay a fine of Rs. 50/- (Rupees fifty only), in default simple imprisonment for one week. Orders accordingly.