1. This appeal is by the State against an order of acquittal passed by the Sub Magistrate, Karaikudi, in O. C. No, 2626 of 1955 on the file.
2. The respondent was keeping a printing press in the downstairs portion of a building which comprised T. S. Nos. 16, 17 and 19 to 22, Ward No. 12, within the limits of the Karaikudi Municipality. That Street had been declared under Sec. 89(1) of the Madras Public Health Act, Act in of 1939, as a residential area. The accused, i.e., the respondent herein, applied to the Commissioner of the Municipality for permission to run the printing machines by installing two 1/2 H.P. electric motors. He has stated in his application that he was employing human labour for driving the printing machine and doing the printing work and that with a view to make it easy for the workmen' he decided to operate the machine with the help of electricity and so was applying for permission to instal the two 1/2 H. P. electric motors.
Incidentally, he has also mentioned in the application that the height of the building in which this press is situated is not 12 feet as required by Rule 5 of G.O. No. 3088, dated 20-10-1946 and requested that exemption might be granted under the aforesaid rule. This application was forwarded to the Health Officer of the Municipality for his remarks. The Health Officer returned the papers with the remark that the Installation would fall within the scope of "factory' in Section 3(10) of the Public Health Act. Under this clause a "factory" is defined as follows:
" 'factory' means any premises including the precincts thereof, wherein any industrial, manufacturing or trade process is carried on with the aid of steam, water, oil, gas, electrical or any other form of power, which is mechanically transmitted and is not generated by human or animal agency."
The Health Officer considered the printing process as one involving a trade process. As the permission sought for, even according to the respondent's own application, was to drive the printing press by electric power, and as it was situated in a notified residential area, under Section 92(a) of the Madras Public Health Act, the health officer urged that the construction or establishment of any new factory, workshop or work-place, or the carrying on of any new offensive trade in the areas specified in the notification was absolutely prohibited. Therefore, the Health officer recommended that permission should not be granted.
Thereupon, the Municipality at its meeting considered the application of the respondent with the remarks of the Health Officer, accepted the recommendations of the Health Officer and refused licence to the respondent to instal two 1/2 H. P. electrie motors. The proceedings are dated 18-11-1949 and the same were communicated to the respondent. It is not clear on what date they were communicated. But it is not disputed by the respondent that "without this licence he installed the two 1/2 H. P. electric motors and has been running his printing press with the aid of electric power. We have evidence that after 1949 the licence was refused in 1952 and for 1955 also It was refused.
The Municipality issued a notice Ex. P-1, dated 11-7-1955 calling upon the accused to remove the unauthorised installation within one week of the date of the notice failing which he was warned that prosecution would be launched against him. The accused did not remove the installation and hence this prosecution.
3. The Magistrate, who tried this case, came to the conclusion that undoubtedly the accused had installed the electric motors in question without any permission from the municipality. This he should have applied for under Section 260 of the District Municipalities Act and without such a permission he had installed the electric motors. But the Magistrate held that the offence was complete when he installed the machinery; and that as under Section 347 of the District Municipalities Act no person shall be tried for any offence against the provisions of that Act, or of any rule, or by-law made under it, unless complaint is made, by the police or the executive authority or by a person expressly authorised in this behalf by the council or the executive authority, within 3 months of the commission of the offence, and the offence, according to the Magistrate, having been committed even in 1949 and the prosecution having been launched on 16th August 1955; which was more than three months after the commission of the offence, the prosecution was unsustainable. The point on which the Magistrate has acquitted the accused, is, therefore, one of limitation.
4. The prosecution in this case is not for having installed without a licence. If the prosecution is for installing machine without a licence, the Magistrate is certainly right in coming to his conclusion. But the prosecution, as would be seen from the complaint, is for disobedience of the notice served on him. It falls under Clause (c) of Section 313(1) of the District Municipalises Act. The notice having been issued on 11-7-1956 and time having been given to him to remove within one week of the receipt of the notice, and the prosecution having been launched toy 16-8-1955, the prosecution is undoubtedly within three months.
The mistake the magistrate committed is that he considered the installation as an offence and computed the period of limitation from that. It is true that the installation itself is an offence. But the offence for which the prosecution has been launched is not for Installing the machinery out for disobedience of the notice served upon the respondent and this notice being dated 11th July 1955, and the prosecution being launched on 16th August 1955, which is within three months, the acquittal on the ground of limitation is liable to be set aside.
5. Mr. Srinivasagopalan, appearing for the accused, contends that the decision of this court by Ramaswami J. in C.A. No 304 of 1956 (A) will apply to the facts of this case. There the main question on which Ramaswami J. upheld the acquittal was one of autrefois acquit (under Section 403 Crl. P.C.) The accused therein was prosecuted for an offence and for the same offence he was prosecuted again and in the second trial he was acquitted, against which an appeal was filed. Ramaswami J. confirmed the acquittal on the ground that the second trial was barred under Section 403, Cr. P.C. He has no doubt made certain observations which support the contention of the learned counsel who appears for the accused in this case. I, may say with great respect that this aspect, viz, that the provisions of the Madras Public Health Act, excepting Chapter IX and Part 3 of Chapter X have been made applicable to the whole of the State of Madras according to the provisions of Section 2(1) of the Madras Public Health Act, was not considered. This Act has to be read along with the district Municipalities Act. The District Municipalities Act does not contain any definition of "factory". Its definition is contained only in Section 3(10) of the Public Health Act. Chapter XII of the District Municipalities Act deals with "Licences and Fees" and "Industries and Factories"; Sections 249 and 250 relate to industries and Factories. There is no definition of "factory" in the District Municipalities Act. So the definition of "factory" which is contained in the Public Health Act and which has been made applicable to the District Municipalities Act, has to be taken for the purposes of Sections 249 & 250 of the District Municipalities Act. If it is so taken, then it comes to this:
In a residential area which has been notified under Section 89(1) and in which under Section 92(a) the establishment of a factory is prohibited, Section 250 of the District Municipalities Act cannot be invoked for the purpose of establishing a factory in that area. Section 250 will apply only to areas which are not notified to be residential areas. The distinction: between a residential area and a residential area which is notified to be so has got to be borne in mind. Section 92(a) will apply only to residential areas which are so notified under Section 89(1) of the Public Health Act. There will be many areas which are residential and yet which may not be notified under Section 89(1). Only to such areas as are not notified under Section 89(1), Section 250 of the District Municipalities Act will apply. If we read these two together, then the necessity for refusal under Section 250(3) (b) will appear clear, because under that clause permission may be refused only when the establishment of the factory is objectionable by reason, of the density of the population in the neighbourhood or that it is likely to cause nuisance whereas under Section 92(a) there is a total prohibition of the establishment of a factory. If this distinction is borne in mind, then certainly there is no inconsistency between Section 250 of the District Municipalities Act and Sections 89 and 93 of the Public Health Act. On the facts, I am of opinion that the view of the magistrate that the prosecution is barred toy limitation is not correct. The acquittal is, therefore, reversed and set aside.
6. On the question of sentence, I think there has been a bona fide mistake on the part of the persons concerned. I therefore think a sentence of a fine of Rs. 25 will meet the ends of Justice. Time for payment of fine one month. In default one weeks simple imprisonment. I would like to make it clear that the accused cannot continue to run the printing press with the aid of the electric motors, as under the provisions of the District Municipalities Act and the Public Health Act he cannot have them" in the premises in which he is running the press, because it is declared to be a residential area. But he will be entitled to run the press in the same premises if it is without the aid of the electricity or other power but with the aid of human or animal agency.
7. The appeal is allowed.