1. In this case, the Inspector of Factories inspected the factory in question on 5-10-1950 and found that the accused had failed to construct a pucca dust-proof husk Chamber as required by Section 14, Factories Act. The failure to do this is an offence punishable under section 92 of the Act. Under section 106 of the Act no court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within 3 months of the date on which the alleged commission of the offence came to the knowledge of the inspector. A complaint for this offence must be laid within 3 months from the above date, i.e., 5-10-1950. But the complaint was laid on 15-3-1951 and it is clearly beyond 3 months.
But it is argued that the Inspector visited the factory again on 24-1-1951 when also he found the above defect and the complaint being within 3 months from the later date, the complaint is within time. In support of this conlention a decision of Subba Rao J. in -- 'Cr. P. C. No. 417 of 1950' is cited. In my view, the period of 3 months is to be calculated from the time the Inspector had first knowledge of the offence. Otherwise, it would only mean an extension of period. The knowledge in the section means the knowledge which the Inspector had first obtained and not subsequently. In view of the different opinion which Subba Rao J. has held it is necessary that this should be decided by a Bench. I therefore direct this to be posted before a Bench.
Govinda Menon, J.
2. This appeal has been referred to a Bench by Somasundaram J. on account of a difference of view between himself and Subba Rao J. with regard to the proper construction to be put upon section 106, Factories Act, 63 of 1948. The facts are stated in the judgment of our learned brother, Somasundaram J. and need not be restated here. What happened was that the respondent here failed to comply with the provisions of section 14, Factories Act, by not putting up a dust-proof husk chamber in the factory, and this was noticed by the Inspector of Factories when he visited the place on 5-10-1950. As a result of that, the Inspector issued a notice to the manager and the occupier to rectify this defect within a period of time mentioned by him. Nothing was done with the result that when the Inspector again visited the factory on 24-1-1951 it was found that the 'status quo ante' continued, whereupon a charge-sheet under section 92, Factories Act, for having committed an offence under section 14, Factories Act, was laid before the Magistrate on 15-3-1951.
Among other points, the learned Magistrate found that the prosecution was barred by the provisions of section 106, Factories Act, because the alleged offence came to the knowledge of the Inspector on 5-10-1950 when he first visited the factory, and the prosecution having been launched more than three months thereafter, was barred by the provisions of that section. Subba Rao J. in -- 'Cr. R. C. No. 417 of 1950' took the view that such offences were continuing ones and, according to the learned Judge, if the argument of limitation were to prevail, it would lead to an anomalous situation that once the authorities concerned overlooked a contravention of a certain specific provision by the manager or the owner of the factory, they would be precluded for ever from complaining against subsequent delinquencies on his part. Such being the case, the learned Judge was of opinion that, being a continuing wrong, every succeeding act gave rise to a cause of action.
3. It cannot be disputed that the offence committed is a continuing one, for the non-erection of a dust proof husk chamber, for every day of such failure, amounts to an offence. If it is an offence on a particular date, it does not cease to he an offence on the next day and so on, until the deficiency is rectified. We feel that the offence is certainly a continuing one. But the question is what exactly is the import of the expression "the offence came to the knowledge of the inspector". Does it mean the date when the offence first came to the knowledge of the inspector, or a continuing offence coming to the knowledge of the Inspector on any subsequent day? Section 106 is modelled somewhat on section 146 of the Factory and Workshop Act, 1901 (1 Edward 7, Ch. 22), which is as follows:
"The information shall be laid within three months after the date at which the 'offence comes to the knowledge of the inspector' for the district within which the offence is charged to have been committed....."
Here also, the words are 'within three months after the date at which the offence comes to the knowledge of the inspector". Therefore, it seems to us that in interpreting the present section the meaning put upon the words in a similar English statute by English Courts will be very helpful. In -- 'Verney v. Mark Fletcher and Sons Ltd.', 1909-1-KB 444, a Divisional Court of the King's Bench division consisting of Lord Alverstone C. J., Higham J. and Walton J. had to construe that section. What happened there was that in May 1905 and again on March 12, 1908 an Inspector of Factories for the district in which a factory of the respondents was situated, visited the factory and found that the fly-wheel of an engine was not fenced as required by the Factory and Workshop Act, 1901. Nothing seems to have been done except that he told the respondents that the fly-wheel was not securely fenced and required them to fence it in accordance with the provisions of the Act.
Again, he visited the factory on 1st July 1908 and found that the same fly-wheel was still unfenced. On 22nd July 1908, the Inspector laid information against the respondents for an offence under section 135 of the Act in that the factory was, on 1st July 1908, not kept in conformity with the Act in that the fly-wheel was not securely fenced as required by section 10 of the Act. It was argued before the Divisional Court by eminent Counsel like Avory K. G, and Patrick-Hastings that since the Inspector had knowledge of this deficiency in May 1905 and in March 1908 it should be said that the alleged offence came to the knowledge of the Inspector more than three months prior to the date of the initiation of the prosecution. The learned Lord Chief Justice who delivered the judgment, in answer to this contention expressed the following opinion:
"The information in the present case charges the respondents that their factory was on July 1, 1908, not kept in conformity with the Act by reason of the omission to fence their fly-wheel. If that be proved, I have not the slightest doubt that there was on July 1 a direct and continuing breach of the provisions of section 10. It is said that because in May 1905 and again in March 1908, the fly-wheel was unfenced, to the knowledge of the inspector, and the information was not laid until July 22, 1908, the requirements of section 146 have not been complied with. In my opinion, an offence was committed on July 1, 1908, just as much as in March 1908, or May 1905, and the offence committed on July 4 came to the knowledge of the inspector on that day, when he visited the respondents' factory. I therefore, come to the conclusion that the information was laid in time."
4. We respectfully are in agreement with these dicta.
5. In the present case, as we have already hold, the offence committed is a continuing one, and when the Inspector visited the factory on the second occasion on 24th January 1951 the, offence committed on that date came to his knowledge on that day, and the prosecution having been launched within three months of that date is in time. We are therefore of opinion that the learned Magistrate was wrong in the construction he put upon section 106 of the Factories Act. In view of the fact that the appeal has been filed mainly with the object of having a pronouncement on this question of law, we think it is unnecessary to proceed with the matter any further except by stating what the correct law, in our opinion is. We there fore set aside the order of acquittal but in the circumstances we do not wish to impose any sentence on the respondents. The other two points are only subsidiary matter on which we agree with the lower court.