1. This is an appeal on behalf of one who is described as A.D.M. Cotton. He was convicted by the Chief Presidency Magistrate of three several offences under the Factories Act 12 of 1911. The first charge was Under Section 41(a) read with Section 26 and the offence alleged was that of allowing persons to be employed in the factory after the prescribed hours. On that charge he was convicted and sentenced to pay a fine of Rs. 100 or, in default, to under go six weeks' simple imprisonment. The second charge was Under Section 41(g) read with Section 18 and Rule 14 and that related to a failure to comply with an order given by the Factory Inspector to remedy certain defects as regards the fencing or guarding certain machines and plant used in the factory. The last charge was brought Under Section 36(1) which requires that there shall be affixed in some conspicuous place near the main entrance of a factory the prescribed abstracts of the Act and of the rules made under that Act. On the second charge a fine of Rs. 200 was imposed, but no separate sentence was passed as regards the third charge.
2. The convictions were based on what I can only describe as very inadequate, loose and unsatisfactory evidence. The only witness for the prosecution was the Inspector of Factories who had visited the premises known as Bridge and Sons Printing Press at No. 1, British Indian Street on 9th August 1933, and all that he said in his examination-in-chief was:
They have a great deal of power machinery electrically worked. The statement prepared by the accused shows 24 employees.
3. That was the sum total of his evidence-in-chief. It is quite obvious that if the matter had rested there he would have proved nothing at all which came within any measurable distance of the charges brought against the defendant. Unfortunately for the defendant however the lawyer who represented him seems to have rushed in with great indiscretion and thought it necessary to cross-examine Mr. Joardar with the result that he succeeded in extracting certain amount of evidence which told entirely in favour of the prosecution and was highly damaging to the defendant. A written statement had been put in by the defendant in which he pleaded that under the definition in the Factories Act the 'concern,' as he described it-Bridge and Sons-was not a factory. He also said that no notice had been served upon him requiring him to fence or to improve the fencing of the machinery concerned, and, as regards the other charges, he made statements which in a sense might have been taken as admissions of responsibility if not of guilt.
4. It is clear to my mind that the prosecution was conducted-if indeed it can be said to have been conducted at all-in a most slovenly, slipshod and an altogether unsatisfactory manner. I am informed that it is not unusual in cases of this character that that kind of thing occurs. Where the blame lies is perhaps a matter which ought to be enquired into by those who are responsible for the proper administration of the Factories Act. It is obvious that if that Act is to be effectively administered it is desirable, whenever it is necessary that prosecutions of this kind should be instituted, that they should be properly launched and properly conducted and that proper evidence should be given in support of the complaint lodged by the Inspector of Factories. The present case is particularly unsatisfactory because when one examines Ex. 1, which is a document relied upon by the only witness for the prosecution, one finds that there is no indication whatever in the document itself that the defendant had anything whatever to do with the compilation of it. The document was signed by 'M. Bridge' and it would appear from the handwriting on it to have been filled in by the person who signed it. Judging from the name at the top that would appear to be a lady of the name of Mrs. M. Bridge.
5. There is moreover a very unsatisfactory feature about the document in that it is obvious that one of the figures, in the space provided for setting out the number of operatives employed on any one day, has been altered. It seems to be quite obvious that originally the number was given as 14 and the figure 1 sometime or other was altered into 2. There was no evidence whatever before the learned Magistrate to show whether 14 was correct or 24 was correct. The conviction was apparently founded upon the supposition that '24' was the correct number of operatives employed at these particular premises and the relevancy of that, of course, is that unless not less than 20 persons were simultaneously employed at those premises at any one day in the year, then even though mechanical or electrical power was used in those premises they would not constitute a factory for the purposes of the Act. The definition of factory is given in Section 2, Sub-section 3 of the Act. Having regard to the alteration in the important document I have mentioned it is by no means certain that on any day in the year with which these proceedings are concerned there were 20 persons employed at any one time. As I have said the defendant himself in his written statement raised the point that the premises where the business of Messrs. Bridge and Sons was carried on did not constitute a factory, and the same point has been argued before me by Mr. Chatterji who appears for the appellant.
6. I am bound to say that upon the evidence as it appeared before the learned Magistrate it never was satisfactorily shown even that the defendant held a responsible position in Messrs. Bridge and Sons and certainly it was never established that their premises were factory within the meaning of the Act. As I have said it seems to me highly desirable that those who are responsible for the administration of this Act should see to it that these cases of prosecution are properly and satisfactorily conducted.
7. Having regard to what the defendant himself says in his written statement and to the evidence given by Mr. Joardar in answer to the questions put in the cross-examination with regard to the actual facts of the case I think it is necessary and desirable in the interests of justice that the Grown should have another opportunity of putting the matters complained of before the Court in a satisfactory and proper manner. It is obvious to my mind that the present convictions cannot stand. I accordingly quash the conviction and direct a re-trial. At the same time I may say however that it obviously must be the case that if the defendant can satisfy the Crown either that the prenoises do not constitute a factory or that he has not contravened any of the sections of the Act there would of course be no obligation on the prosecution to pursue the matter any further.
8. If the prosecution ultimately think fit to have the proceedings re-opened before the learned Magistrate they must of course give sufficient evidence in a proper way fully to establish some of the charges made in the form of complaint. In the present instance the complaint was made by an officer described as an Inspector of Factories and the only attempt to substantiate the charges in the complaint was the very scrappy and altogether inadequate evidence given by Mr. Joardar. It must be clearly understood that to lodge a complaint is not to give evidence upon which a Court can act. The complaint is in the nature of an indictment. Therefore averments in a complaint must be established and properly proved by evidence and the matter must not be dealt with as if the complaint is something in the nature of a deposition. It rather appears that in the present case, as no doubt it happens in other cases, the complaint was treated as if it had the sanctity of affidavit-evidence, assuming it was ever possible to prove what is tantamount to a criminal charge by any such means. I desire to emphasize very strongly that a complaint is a complaint and nothing else. It is, as I have said, something in the nature of an indictment. Before anyone can be convicted on charges formulated in a complaint all those charges must be fully and properly proved in accordance with the procedure and the law of evidence applicable to criminal charges. The fines, if paid, will be refunded.