J. Agarwala vs Emperor

Scroope, J.—The petitioner, Mr. J. Agarwala, has obtained a Rule from this Court against his conviction Under Sections 41 (h) and 41(j), Factories Act. He was tried along with Mr. Rakhit for offences under these sections and they were sentenced to pay a fine of Rs. 100 each u/s 41(h), and they were sentenced to pay a fine of Rs. 100 each u/s 41(j). On appeal to the Sessions Judge of Purulia the separate sentences of fine were set aside and it was directed that the fine in each case should be jointly payable as laid down in Section 41.

The case for the prosecution was that the petitioner, Mr. Agarwala, was the occupier of the Tatanagar Foundry at Jamshedpur. The other person with whom he was tried, Mr. Rakhit, was the manager of the factory. These facts are not disputed now, nor is it disputed that when the Inspector of Factories inspected the factory in June last he found that there was no register of workers maintained in the factory as required by Section 35 of the Act. It was also discovered that there had been two serious accidents in the factory, but no notice had been sent to the authorities as required u/s 34. Mr. Agarwala, who is now the petitioner and with whose offence alone we are now concerned, pleaded that he was not the occupier of the factory and he could not therefore be guilty of any offence. Both the lower Courts have found that in fact he was the Managing Agent of the factory and in fact had control of the factory and was an occupier within the meaning of the Act and Mr. Verma for the petitioner does not dispute this finding now. But his first contention is that u/s 34 it is the duty of the manager to give information about accidents, and not the duty of the occupier and as no duty has been cast on the occupier by this section he should not have been made jointly liable with the manager. But Section 41 is to my mind perfectly clear.

It lays down that in case of breach of certain provisions, and it is not disputed here that these provisions have been infringed, the liability is fastened on the occupier irrespective of the actual offender. Section 34 is the section which makes the manager liable for failure to report an accident and Section 41 the occupier of the factory, and the reference to "the manager" in the latter section emphasizes his joint and several liability along with the occupier.

The next point taken was that the joint trial of the petitioner along with Mr. Rakhit is bad, but I do not see any. substance in this when Section 41 (j) makes them jointly and severally liable. Such joint and separate liability could not be enforced in two separate trials. This is a particular provision of the Factories Act and is one of the cases contemplated by Sub-clause (2), Section 5, Criminal P. C.

The other argument on this point was that assuming that there could be a joint trial of the petitioner along with Mr. Rakhit for each separate offence they could not be jointly triable for both offences at the same time. In other words the contention amounts to this: that there should have been two trials of both the petitioner and Mr. Rakhit for the two offences. Section 239(c), Criminal P.C., answers this argument. In my opinion the offences under the Factories Act are offences of the same kind within the meaning of that section. The petition must therefore be rejected.