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Superintendent and Remembrancer of Legal Affairs Vs. Madhablal Mehta and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1974CriLJ1330
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentMadhablal Mehta and anr.
Cases ReferredR. P. Kapur v. State of Punjab
Excerpt:
- .....party no. 2 never was nor is a director of the jute mill referred to viz. the samnusear jute factory company limited (north mill) and that it is wholly incorrect to say that he ever was a director thereof. it was further submitted in paragraph 6 that the process was issued against the opposite party no. 2 upon a mistaken view of fact that he was one of the directors of the jute mills concerned and as such in the interest of justice the proceedings should not be allowed to proceed. in the supplementary affidavit affirmed by the secretary of thomas duff & co. (india) ltd. agents in india for the samnuggur jute factory co. ltd., it was stated in paragraph 4 that there was no change of director in the company since 1-1-1973 and a copy of the return filed with the registrar of companies.....
Judgment:

N.C. Talukdar, J.

1. Two points of law, one relating to procedure and the other to merits, have been raised in this Rule obtained by the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, and directed against an order dated the 9th February, 1973, passed by Shri A. K. Dutta, Sub-Divisional Judicial Magistrate, Chandernagore. Dist. Hooghly, in C. R. Case No. 793 of 1972 under Section 92 of the Factories Act, 1948 (Act LXIII of 48).

2. The facts leading on to the Rule can be put in a short compass. Shri K. K. Sengupta, Inspector of Factories, Serampore filed a petition of complaint before the learned Sub-Divisional Judicial Magistrate, Chandernagore on 14-9-1972 against five accused persons, including the two accused opposite parties, stating inter alia that the complainant is the Inspector of Factories, Serampore and filed the petition of complaint in his official capacity; that during his visit to the factory known as M/s. Samnuggur Jute Factory Co. Ltd., North Mill, 26, Grand Trunk Road, P. O. and P.S. Bhadreswar, Dist. Hooghly on the 16th June, 1972, it was ascertained by him that although more than 250 workers were ordinarily employed in the factory, the drinking water supplied to them from the 1st April, 1972, was not cooled by ice or other effective method as required under Section 18(3) of the Factories Act, 1948 read with Rule 35 of the West Bengal Factories Rules, 1958, prescribed under Sub-Section (4) of Section 18 of the Factories Act 1948; that the accused Nos. 1-4 Gourilal Mehta, Harilal Mehta. Madhavlal Mehta and S.C. Roy are the occupiers and the accused No. 5, R. P. Jha is the Manager of the said factory; that the accused persons had committed an offence punishable under Section 92 of the Factories Act, 1948 for a contravention of Section 18(3) of the Factories Act 1948 read with Rule 35 of the West Bengal Factories Rules. 1958, prescribed under Sub-Section (4) of Section 18 of the Factories Act, 1948 and accordingly process may toe issued against them. The learned Sub-Divisional Judicial Magistrate by his order of the same date issued summons on the accused persons as prayed for. On 19-12-1972 the next date fixed, three of the co-accused viz., Gourilal Mehta, Harilal Mehta and R. P. Jha pleaded guilty through their learned Lawyer and the learned Sub-Divisional Judicial Magistrate, accepting the same, convicted them under Section 92 of the Factories Act and sentenced them to pay a fine of Rs. 30/-each i.e., to undergo S.I. for five days each. On 9-1-1973 an application was filed on behalf of the defence objecting to the maintainability of the prosecution against the present two accused opposite parties on points of law and praying for a recall of the warrant of arrest till the disposal of the same. On hearing the parties, the learned Sub-Divisional Magistrate by his order dated the 9th February, 1973, dropped the proceedings against them and recalled the warrant of arrest. The said order has been impugned and forms the subject-matter of the present Rule.

3. An affidavit-in-opposition on behalf of the Opposite Party No. 2 and a supplementary affidavit on behalf of both the opposite parties were affirmed on the 30th July, 1973 and the 19th September, 1973, respectively. In paragraph 4 of the affidavit-in-opposition it has been averred that the opposite party No. 2 never was nor is a director of the jute mill referred to viz. the Samnusear Jute Factory Company Limited (North Mill) and that it is wholly incorrect to say that he ever was a Director thereof. It was further submitted in paragraph 6 that the process was issued against the opposite party No. 2 upon a mistaken view of fact that he was one of the Directors of the Jute Mills concerned and as such in the interest of justice the proceedings should not be allowed to proceed. In the supplementary affidavit affirmed by the Secretary of Thomas Duff & Co. (India) Ltd. Agents in India for the Samnuggur Jute Factory Co. Ltd., it was stated in paragraph 4 that there was no change of Director in the Company since 1-1-1973 and a copy of the Return filed with the Registrar of Companies in 1973 under Section 592 of the Companies Act, 1956, was annexed marked with the letter 'A'. The names of both the opposite parties do not find place there. It was averred in paragraph 5 that

In the application for registration of grant of renewal of licenses and notice of occupation specified in Sections 5 and 7 of the Factories Act. 1948, in respect of the said Company in the year 1971 submitted by the said Thomas Duff & Co. (India) Ltd., as Agents in India for and on behalf of the said Company. Sri S.C. Roy was, through inadvertence, wrongly shown as Director of the said Thomas Duff & Co. (India) Ltd.' and in paragraph 6 it was stated that 'On a similar application made in January 1973, the name of Sri S.C. Roy who was wrongly shown in the application for 1971 as a Director of Thomas Duff & Co. (India) Pvt. Ltd., was duly omitted. Copies of the said applications are annexed hereto and collectively marked 'B'.' It was ultimately stated in paragraph 7 that 'neither Madhavlal Mehta nor S.C. Roy was ever a Director of Samnuggur Jute Factory Company Ltd. and while Madhavlal Mehta was upto the 31st July, 1972 a director of the said Thomas Duff & Co. (India) Ltd. S.C. Roy was never a Director of the said Thomas Duff & Co. (India) Ltd., ' In view of the materials disclosed as above and the submissions made in this behalf that the opposite party No. 2 never was nor is a Director of any one of the Concerns, Mr. Prasun Chandra Ghosh, Advocate, appearing on behalf of the Petitioner, did not, in his fairness, press the Rule against him and it was accordingly discharged against the said Opposite Party No. 2 by an order dated the 21st September, 1973. The Rule was thereafter directed to proceed against the other opposite party, Madhavlal Mehta only.

4. The first point raised by Mr. Prasun Chandra Ghosh, Advocate (with Mr. Ramendra Nath Chakraborty, Advocate) on behalf of the petitioner relates to procedure. Mr. Ghosh submitted that there has been a non-conformance to procedure established by law under Chapter XX Criminal Procedure Code, vitiating thereby the impugned order passed by the learned Sub-Divisional Judicial Magistrate. Chandernagore. The steps of Mr. Ghosh's reasoning in this behalf are that there are no provisions in the Criminal Procedure Code for dropping proceedings in a summons procedure case; that this being a summons case, started on a complaint, under Chapter XX Criminal Procedure Code, Section 249, Criminal Procedure Code will not apply; that even if Section 249 applied, the proceedings could at best be stayed and not dropped; that the stage of Section 243, Criminal Procedure Code was already reached in the present proceedings wherein three of the co-accused were convicted and sentenced on pleading guilty; that the trial which had thus started is now to proceed under Sections 244 and 245. Criminal Procedure Code and can no longer be switched back to the stage of Section 242, Criminal Procedure Code whereunder the substance of the accusation is to be stated to the accused. Mr. Dilip Kr. Dutt, Advocate (with Messrs. Jaharlal Roy and Dilip Kumar Basu, Advocates) appearing on behalf of the opposite parties, joined issue and submitted that this is no really a case of 'dropping' but of recalling the processes before the trial had commenced. In this context he relied on a case reported in 27 Cal WN G51 : 25 Cri LJ 464 : AIR 1923 Cal 662. On a consideration of the respective submissions made and the decision cited, I hold that there is a considerable force behind the contentions of Mr. Ghosh. There cannot be any dropping of the proceedings in a summons procedure case, and the same is de hors the Code. The earlier orders passed by the learned Sub-Divisional Judicial Magistrate pinpoint that the stage under Section 242, Criminal Procedure Code was already over inasmuch as a substance of the accusation was stated and three of the co-accused pleaded guilty. The trial had thus started and is accordingly to proceed as provided for under Sections 242 and 245, Criminal Procedure Code. There cannot be any 'dropping' of the proceedings at this stage. The provisions of Section 249, which do not apply to the facts and circumstances of the present case, also do not provide for any 'dropping', Mr. Dutt inter alia contended that the word 'dropping' may have been inappropriately used but what was really intended by the learned Magistrate was that he was recalling the process issued and giving a quietus to the case, in view of the facts and circumstances of the case as also the interests of justice. In support of his contention. Mr. Dutta referred to the case of Lalit Mohon v, Noni Lai, reported in 27 Cal WN 651 : 25 Cri LJ 464 : AIR 1923 Cal 662. Mr. Justice Newbould and Mr. Justice Suhrawardy held in the facts of that case that 'There is nothing in the Code which forbids the Magistrate to reconsider an order of this kind on sufficient grounds'. The facts however are quite different in that case where the trial had not started as in the present proceedings. The observations referred to above therefore do not lend assurance to Mr. Dutta's contention. The order as passed for 'dropping' the proceedings is not a proper order and the contentions of Mr. Ghosh made in this behalf accordingly succeed.

5. The second dimension of Mr. Ghosh's submissions however relates to merits and for properly appreciating the same a reference has to be made to the relevant provisions of the statute and the Rules framed thereunder. The prosecution instituted before the learned Sub-Divisional Judicial Magistrate, Chandernagore is one under Section 92 of the Factories Act. 1948 (Act No. LXIII of 1948) for a purported contravention of Section 18(3) of the Act read with Rule 35 (a) of the West Bengal Factories Rules 1958. Section 92 lays down a general penalty for offences arising out of a contravention of any of the provisions of the Act or of any rule made thereunder or of any order in writing given thereunder in such a case where the occupier and the manager of the factory shall each be guilty of an offence. The term 'Factory' has been defined in Section 2(m) of the Factories Act, 1948; and the term 'Occupier' has been defined in Sub-Section (n) as a person who has ultimate control over the affairs of the factory and where the said affairs are entitled to a managing agent, such agent shall be deemed to be the occupier of the factory. In this context a reference has to be made to the provisions of Section 100 of the Act relating to the determination of 'occupier' in certain cases. Under Sub-Section (1) of Section 100, where the 'occupier' of a factory is a firm or other association of individuals, any one of the individual partners or members thereof may be prosecuted and punished under this chapter for any offence for which the occupier of the factory is punishable. The proviso thereunder lays down that the firm or association may give notice to the Inspector relating to one of its members to be 'occupier' of the factory for the purposes of this chapter. Sub-Section (2) provides that where the 'occupier' of a factory is a company one of the directors thereof or in the case of a private company, any one of the shareholders thereof may be prosecuted and punished under this Chapter for any such offence. There is a proviso that the company may give notice to the Inspector that it has nominated a director or in the case of a private company a shareholder to be the 'occupier' of the factory for the purposes of this chapter.

6. Two other provisions now remain to be considered viz... Section 18(3) of the Factories Act. 1948 and Rule 35 (a) of the West Bengal Factories Rules, 1958. Section 18(3) provides that in every factory where more than 250 workers are ordinarily employed provisions shall be made for cooling drinking water during hot weather by effective means and for distribution thereof. The use of the word 'cooling' in preference to 'cooled' gave rise to some arguments at the bar as to the proper connotation of the word and it was inter alia contended that, whether a drink is cooling or not is entirely subjective, varying with individual taste. It was urged in this context that for a cooling drink, some would prefer to take plain water; some may like to have cold beer, and some others would even opt out for a warm beverage. There again may be connoisseurs, who may pine with Keats 'C, for a draught of vintage that hath been cooled a long ago in the deep-delved earth.' The concept therefore of what is 'cooling' appears to vary from age to age. place to place, and person to person. Rule 35 (a) of the West Bengal Factories Rules, 1958 lays down however that the drinking water supplied to the workers shall, from the first of April to the 30th of September in every year, be cooled by ice or other effective methods. In view of this specific provision, one need not enter into the dichotomy of a 'cooling' drink or peregrinate into an academic discussion of what constitutes, as Mr. Justice Holmes has observed, 'the felt necessities of the time'; and so an otherwise warm discussion may be put in the cold storage.

7. Against the background of the aforesaid provisions, the second dimension of Mr. Ghosh's contentions relating to merits has to be considered. The steps of Mr. Ghosh's reasoning in this behalf are that the provisions applicable to the facts of the present case are those of Section 100(2) of the Factories Act, 1948; that the proviso to Section 100(2) has not been availed of as borne out by CI. 9 of the Returns filed; that Clause 8 of the Return read with note No. I would make it abundantly clear that the 'occupier' of the factory is not a particular or specified Director as provided for in the aforesaid proviso but all the Directors of the Company; that the learned Judicial Magistrate has overlooked that the proviso relating to nomination has not been availed of in this case although the same should have been the main test for consideration; and that the word 'may' used in Section 100(2) confers discretion that where the occupier of a factory is a company, as in this case, 'any one of the Directors thereof may be prosecuted and punished and that the singular includes the plural. In addition to above, Mr. Ghosh also made an ancillary submission that, it will be premature at this stage to quash the proceedings on merits inasmuch as all the relevant materials are not on the record to lend assurance to the contentions raised on behalf of the defence.

8. Mr. Dilip Kumar Dutta, Advocate, appearing on behalf of the accused opposite-parties, joined issue and contended inter alia that the proviso to Section 100(2) of the Factories Act, 1948 has in fact been availed of as borne out by Clause S of the Returns filed; that instead of a specified Director, the Company itself viz., the Samnuggur Jute Factory Co. Ltd (North Mill) whereof M/s. Thomas Duff & Co. (India) Ltd., are the Agents in India, has been nominated as the 'occupier' that the 'occupier' being a Company 'any one of the Directors thereof' as enjoined In Sub-Section (2) to Section 100 may be prosecuted and punished; that a list of four Directors with their residential addresses has been specifically mentioned in Clause 8 of the Return filed, as the 'occupier'; that in this case two Directors of the occupier Company along with the Manager of the Factory have already been convicted on pleading guilty; and that therefore no further prosecution is maintainable in law with regard to the remaining two Directors of the Company, justifying according the ratio of the learned Sub-Divisional Judicial Magistrate's order. In support of his contentions Mr. Dutta referred to the case of Hari Krishna v. State reported in : (1960)ILLJ42All . With regard to the ancillary submission raised on behalf of the Petitioner Mr. Dutta contended that the inherent jurisdiction of the High Court can always be exercised for quashing proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice and that this can be done at any stage of the proceedings.

9. I will now proceed to consider the respective submissions made in connection with the second dimension of Mr. Ghosh's contentions. Section 92 of the Factories Act, 1948, is to be read along -with Section 100 thereof. In fact the provisions of the earlier Section are qualified by the provisions of the latter one. Section 22 provides that the 'occupier' and the Manager of the Factory shall each be guilty of an offence. Some meaning and effect must be given to the word 'occupier' as qualified by the provisions of Section 100 and also to the word 'each' as used therein. In this case the 'occupier' being a Company the provisions of Section 100(2) apply and the same provide that in such a case any one of the Directors of the Company may be prosecuted and punished. The first part of the provisions significantly enough is in the singular and the second part confers a discretion on the Court. The golden rule of Interpretation of Statute is that the words used therein must prima facie be given their ordinary meaning. As was observed by Lord Sumner in the case of Quebec Rly Light, Heat and Power Co. Ltd. v. Vandry, reported in AIR 1920 PC 181 at p. 186 that 'Effect must be given if possible to all the words used for the legislature is ... not to waste its words or to say anything in vain' The principles of Interpretation of Statute should be applied in the first instance for ascertaining the real intention of the legislature in framing the relevant provisions bearing on the point at issue. The true meaning of the words 'occupier' and 'each' in Section 92; and of 'any one of the Directors thereof' and must be prosecuted and punished' in Section 100(2) of the Factories Act, 1948. has to be ascertained by applying the principles of intent and that of meaning, I ultimately hold that the legislature intended not to punish all the Directors of the occupier Company but only one viz., specific one if so nominated or any one of them in the absence thereof. In no case however it should be more than one. The interpretation therefore, as given by Mr. Ghosh that it may be more than one, is de hors the specific provisions of the Statute and beyond the intention of the legislature. The imprimatur of judicial decisions also does not lend assurance to Mr. Ghosh's interpretation. A reference may be made to the case of Hari Krishna v. State, reported in : (1960)ILLJ42All . Mr. Justice N. C. Desai observed therein that 'Under Section 100 'any one' of the applicants could be prosecuted and punished, i.e... either one or the other could be prosecuted and punished but not both. 'Any one' means any single individual; 'the expression doer, not include more than one individual'. It was further observed by the learned Judge that 'There is reason for this; it would be wrong to punish each and every partner (it was a case relating to a firm) of it when the subject of punishing would be amply achieved by punishing only one of them'. Ultimately the prosecution of both the partners of the firm in question in the case under consideration was held to be illegal, I agree with the said observations and I hold that the use of the words 'any one' in Section 100 Sub-Section (2) read with the words 'occupier' and 'each' in Section 92 rule out the plural and clearly establish that any one of the Directors of the Company, if there be no specific nomination of a particular specified director may be prosecuted and punished under Section 92 of the Factories Act. 1948 for a contravention of Section 18(8); of the Factories Act, 1948 read with Rule 35 (a) of the West Bengal Factories Rules, 1958. In this particular case two of the Directors Viz.... Gourilal Mehta and Harilal Mehta along with the Manager R. P. Jha had already pleaded guilty and were convicted and sentenced by the learned Magistrate and the present proceedings continued thereafter against the other two Directors. The learned Sub-Divisional Judicial Magistrate, Chandernagore has accordingly held rightly that such a prosecution would be bad and repugnant although he did not adopt the proper procedure to implement the said findings.

10. The point at issue raised in the second dimension of Mr. Ghosh's contention may also be considered from another standpoint. The relevant Returns filed after 1971 bring to light that none of the two accused opposite parties were even Directors of the occupier Company during the relevant period, ruling out thereby their prosecution under Section 92 of the Factories Act. 1948 (or a purported contravention of Section 18(8) of the said Act read with Rule 35 (a) of the West Bengal Factories Rules, 1958. Section 100(2) of the aforesaid Act makes it clear that 'any one of the Directors may be presented' and therefore the prosecution instituted against the two accused opposite parties is not also maintainable on the basis thereof. On ultimate consideration therefore I hold that the second dimension of Mr. Ghosh's submissions is not maintainable in law on merits.

11. Mr. Ghosh also raised an ancillary objection to the quashing of the proceedings at this stage as being premature. He relied on the observations of the Supreme Court in the case of R. P. Kapur v. State of Punjab, reported in : 1960CriLJ1239 that 'Ordinarily criminal proceedings instituted against on accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage'. Mr. Justice P. B. Gajendragadkar (as his Lordship then was), who delivered the judgment of the Court, proceeded further to observe that 'It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise co secure the ends of justice'. I respectfully agree. The present proceedings, as has been already held earlier are not maintainable in law and therefore the same should be quashed for the ends of justice. The ancillary submission of Mr. Ghosh accordingly fails.

12. In view of the findings arrived at as above on the position in law. the point that arises now for consideration is whether it will serve any useful purpose to send back the case to the Court below for a proper disposal merely because there has been a technical non-conformance although the ultimate conclusions are otherwise sustainable. I have given my anxious consideration to the same and I ultimately hold that in the facts and circumstances of the case it will be of no avail to send back the case, causing thereby a further delay in a matter which has already been delayed on one ground or other.

13. In the result, I hold that the procedure adopted by the learned Sub-divisional Judicial Magistrate, Chandernagore has not been a proper one; but as the impugned proceedings are not otherwise maintainable in law. I uphold the ultimate conclusion arrived at by the learned Trying Magistrate and ex debito justitiae quash the proceedings. With the aforesaid observations, the Rule is disposed of.

14. The affidavit-in-opposition and the supplementary affidavit filed in Court may be kept on the record.

15. The record may go down as early as possible.


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