Public Prosecutor vs Rathnam Pillai (T.A.)

Basheer Ahmed Sayeed, J.—This appeal is against the order of the learned Sessions Judge, West Tanjore Division, Tanjore, setting aside

the conviction of the respondent, accused under Rules 3 and 6 of the rules framed under the Madras Factories Act. The accused has been running

a factory known as Swami Motor Transport, Ltd., and he has been having a workshop therein. In the workshop he has been building bodies for

buses and repairing automobiles and in connexion therewith he was also having welding and smithy work, etc. The accused reconstructed his

building without conforming to the rules. He put a low roof in the premises of the factory and for this he should have obtained the previous

permission in writing from the State Government or the Chief Inspector of Factories by submitting the necessary plans and estimates. He also failed

to obtain the permission in writing from the State Government or the Chief Inspector of Factories for the extension of the factory, namely, the

installation of wood-working machinery driven by electric motors to total load of 12 h.p. in the factory. By having installed the wood-work

machinery he is said to have contravened the provisions of Section 6 read with Rule 3. The accused also failed to get his licence amended when

the horsepower that was utilized in the factory exceeded the horsepower that was originally granted to him. which was 14.9 h.p. He began to use

in his factory more than 30 h.p. motors. By doing so, he is said to have contravened the provisions of Section 6 of the Act read with Rule 6 of the

rules.. The previous sanction for prosecution was obtained from the relevant authority under Ex. P. 9, dated 3 May 1956, and he was prosecuted

actually on 11 May 1956, for the three offences he is said to have committed as stated above.

The learned Subdivisional Magistrate, Tanjore, convicted the accused u/s 92 of the Factories Act under all the three counts and sentenced him

to pay a fine of Rs. 50 and in default to simple imprisonment for two weeks under the first count, to pay a fine of Rs. 40, in default to simple

imprisonment for twelve days under the second count, and to pay a fine of Rs. 25, in default to simple imprisonment for one week under the third

count. Against this order, the accused preferred an appeal to the learned Sessions Judge of West Tanjore. Under the first count the learned

Sessions Judge confirmed the conviction but reduced the sentence to a fine of Rs. 25, in default to one week''s simple imprisonment. But on the

second and third counts the learned Judge acquitted the accused. There is no appeal preferred against the confirmation of the conviction on the first

count, This appeal is by the Public Prosecutor for the State against the acquittal of the accused under the second and third counts.

The learned Public Prosecutor urges in support of the appeal that the offences under the second and the third counts are continuing offences and

there can be no limitation for any prosecution. Section 106 of the Factories Act lays down that:

No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which

the alleged commission of the offence came to the knowledge of an Inspector.

In this case, the first time when the officers charged with the duty of inspecting the factory came to know of the failure of the accused to comply

with the provisions of the Act and the rules, was on 16 January 1956. There was no doubt a second inspection by P.W. 1 in the case on 3 March

1956 and the charge was actually laid on 11 May 1956. There can be no controversy with regard to the fact as to when exactly the contravention

came to the knowledge of the inspecting officer, P.W. 2, on 16 January 1956. If a second officer inspected and came to know of the commission

of the offence on 3 March 1956, it cannot take away the fact of the knowledge having been brought home to the officers charged with the duty of

inspection on 16 January 1956. So, any complaint against the commission of the offence punishable under the Act or the rules made thereunder

could be filed only within three months from the date of the knowledge of the commission of the offence by the officer concerned. Obviously, in

this case the complaint was filed more than three months after P.W. 2 came to know of the commission of the offence by the accused. Prima facie,

the complaint is out of time and the order of the learned Sessions Judge could be said to be not without justification.

But the learned Public Prosecutor contends in regard to two charges, namely, the failure to obtain the previous permission in writing from the

State Government or the Chief Inspector of Factories for the extension of the factory, that is, for the installation of wood working machinery driven

by electric motors of a total load of 12 h.p. in the factory and also the failure to get the licence amended when the factory exceeded the limits

prescribed in the licence previously given, namely, No. 642, dated 16 November 1955, for the year 1956 for using a motor not exceeding 14.9

h.p., that they were offences in contravention of the provisions of Section 6 read with Rule 3 and Rule 6, respectively, and were continuing

offences, for which there can be no period of limitation. He has referred to a series of decisions of this and other Courts in support of this

contention. There can be no question of any period of limitation prescribed for continuing offences. The question then is whether the offences

complained of by the Inspector of Factories and contained in the chargesheet filed against the accused could be said to be continuing offences or

offences at a single point of time. The learned Public Prosecutor Invited my attention in this connexion to the decision in The Public Prosecutor Vs.

Veerabhadrappa Lakshminarayana Setty, in support of his contention that the kind of offence complained of in the charge under consideration in

the present case should be taken only as a continuing offence and not as a specific offence committed at a particular point of time. In that case the

Inspector of Factories noticed the failure to put the dust-proof chamber as required by Section 14 of the Factories Act on 5 October 1950 and

issued a notice to rectify the defect, but nothing was done. When the Inspector again visited the factory on 24 January 1951, he found that the

status quo ante continued and a chargesheet for an offence punishable u/s 92 was laid before the magistrate on 15 March 1951. It was held that

the offence committed was a continuing one and therefore the prosecution was not barred u/s 106 of the Factories Act. The charge in that case

was u/s 14 of the Factories Act. That section is to the effect that in every factory in which, by reason of the manufacturing process carried on, there

is given off any dust or fume or other impurity of such a nature and to such an extent as is likely to'' be injurious or offensive to the workers

employed therein, or any dust in substantial quantities, effective measures shall be taken to prevent its Inhalation and accumulation in any work-

room, and if any exhaust appliance is necessary for this purpose, it shall be applied as near as possible to the point of origin of the dust, fume or

other impurity, and such point shall be enclosed so far as possible. The Sub-clause of that section was not relevant to that case. Obviously, what is

contemplated u/s 14 is conformity to the requirements of the health of the workers and if this requirement is not complied with, certainly it cannot

be said that this conformity is a particular act and has not to be continuously attended to. If the owner fails to provide for the safeguard required in

Section 14, that failure will certainly be a continuous offence as long as the factory is working and the workers are to be protected from nuisance

that arises from dust in the factory, or fume or other impurity. If what is contemplated in Section 14 involves a continuing offence as the keeping of

the factory safe and healthy for the workers is a continuous obligation and in the nature of a continuous process, then certainly the decision in The

Public Prosecutor Vs. Veerabhadrappa Lakshminarayana Setty, is beyond any exception. But that is not the case in the present appeal where the

acts which have been complained of are specific acts and not acts that are required to be repeated and continued from day to day or from hour to

hour. The second count is the failure to obtain the previous permission in writing from the State Government for the extension of the factory. The

obtaining of the previous permission cannot be conceived of as a continuous process which has to be repeated from day to day and failure to

obtain such permission is not in the nature of a continuing wrong as defined in Hole v. Chard Union ILR (1894) 1 Ch. 293. The present complaint

is that under Rule 3 of the rules framed under the Factories Act the owner of the factory is required to do a specific act before he puts the factory

to any additional use, and that is, he should obtain the previous permission in writing from the State Government or Chief Inspector of Factories. If

he fails to do this specific act which he is called upon to perform as part of his duty as the owner of the factory, then a complaint against this failure

to discharge his duty as a factory owner in respect of obtaining a licence previous to the actual user of the factory must be filed within a period of

three months prescribed u/s 106 of the Factories Act. The owner, viz., accused in this case, failed to discharge the duty which was cast upon him

and this was noticed and came to the knowledge of the officer concerned, viz., P.W. 2, on 16 January 1956. The charge was laid on 11 May

1956. This is certainly beyond three months and therefore out of time. Even so, with regard to the third count where the complaint is about the

failure on the part of the owner of the factory to get his licence amended under Rule 6 of the rules. He had previously obtained a licence for a

smaller horsepower and he has subsequently increased the horsepower to 30 h.p. For doing so, he should have obtained an amendment of the

licence by conforming to the requirements laid down in Rule 6. He did not file his application, did not pay the fees and did not obtain the amended

licence in order to enable him to run the factory. The application, payment of fees and the amendment of the licence cannot be said to be a

continuous process which the owner of a factory is called upon to conform to. It is not a continuous obligation to be discharged from day to day.

Therefore the failure to apply for and obtain the amendment of the licence is only a single specific act he should have complied with and which he

has failed to execute as required by the rules and if that were a specific and not a continuing act, then certainly the period of limitation prescribed

u/s 106 will operate.

The learned Public Prosecutor has again relied upon a decision in State v. Bhiwandiwalla 1956 I.L.J. 153, which is said to follow the decision in

The Public Prosecutor Vs. Veerabhadrappa Lakshminarayana Setty, . I am afraid this decision also does not help the Public Prosecutor. It uphold

the principal that the act of a single failure will come within the mischief of Section 106. of the Act and that if there is a continuing offence like

continuous use of the factory without the licence, it will not be hit by the rule of limitation prescribed by Section 106. The facts in the Bombay case

1956 I.L.J. 153 were : The accused, an occupier of a salt factory which was in existence prior to the commencement of the Factories Act, 1948,

was called upon to comply with the requirements of the Factories Act by the Inspector of Factories when he visited the factory on 10 March

1952. On a second visit by the Inspector on 23 May 1953, it was found that the accused had taken no steps to comply with the requisition. The

accused was thereupon prosecuted within three months from 20 May 1953 but beyond three months from 10 March 1952 u/s 92 of the Factories

Act for having failed to apply inform No. 2 for registration of the factory and grant of licence as required by Section 6 read with Rule 4 of the

Bombay Factories Rules and also for failing to give a written notice of occupation in form No. 3 as required u/s 7(1) of the Act and the rules

thereunder. It was held that the failure to apply for the registration of the factory as well as the failure to apply for the grant of a licence were

punishable within the meaning of Section 92 of the Factories Act. The failure of the accused to apply for registration and to give a notice of

occupation was not, however, a continuing offence and therefore the prosecution in respect thereof filed after more than three months was barred

by limitation u/s 106. But the conduct of the accused in using the premises as a factory without obtaining a licence constituted a continuing offence

and therefore no bar of limitation u/s 106 could be pleaded in respect of this charge. The phrase "" continuing offence "" was considered by the

Bombay High Court. It observed as follows:

The expression ''continuing offence'' though not a very happy expression, has acquired a well-recognized meaning in criminal law. If an act

committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is

committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be

offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences.

The Bench further observed:

In every case of a continuing offence, it may be possible to describe the default as amounting to an omission or to a positive act on the part of the

defaulter. Hence the distinction between a default which consists of an omission to do an act and a default which consists in failure to comply with a

direction to do a positive act may not be very helpful in determining the character of a continuing offence.

As already observed, the principle of the ruling in this decision also is unexceptionable. What the Bombay High Court held to be a continuing

offence in the case was the conduct of the accused in running a factory without complying with the requirements of the notice, namely, that he

should have applied for a licence. The ground on which his conviction was upheld was not that he failed to apply for a licence but that he was using

the premises as a factory without a licence. If the charge sheet in the present case before me had also been laid in the same terms, namely, that the

accused has been using the additional machinery or that he has been using machinery for which no licence had been granted, then certainly his

conduct in using the additional machinery in the factory without the necessary permit or without amending the licence with reference to the

horsepower which he was to utilize in his factory, would not justify the learned Sessions Judge in interfering and setting aside his conviction. But on

the other hand, when one reads the terms of the two counts in the present case, they do not have any reference to the conduct of the factory

owner, namely, that he was using the premises and running the factory with this additional machinery and without getting the licence amended for

the extra horsepower. But they refer only to his failure to obtain the previous permission and his failure to get the licence amended as required by

Rule 3 and Rule 6 of the Factories Rules.

A further decision referred to by the Public Prosecutor was in State v. Laxmi Narayan 1957 I .L.J. 487, I do not think even that decision is of

any great assistance to the learned Publics Prosecutor. This decision again affirms the principle that when a specific act is complained of, it will be

hit by Section 106 of the Factories Act unless the prosecution is laid within three months from the date of the Inspector or the officer coming to

know of the commission of the offence. If that is a continuing offence, there would be no limitation. In that case the decision was that the words

shall be begun "" or "" carried on in any building or part; of a building"" in Rule 3(3) connote that an offence of this nature might be a continuing

offence and if upon a previous inspection, the Inspector of Factories allowed the matter to go unnoticed and without filing a complaint but with a

verbal warning to the factory owner that the errors should be rectified, it would not be open to the factory owner or occupier to say upon a

subsequent inspection of the factory where the same breach was still found to exist that the subsequent breach should be condoned and a

complaint based upon it should be held to be time-barred because the earlier breach was not brought into question in a Court of law. That

followed the decision in Public Prosecutor v. Veerabhadrappa Lakshmi Narayana Setty.

Therefore, on a consideration of the facts in this case and the authorities cited before me, I am of opinion that the chargesheet as laid does not

lend any scope for the construction of the offence complained to be as continuing, offence. On the other hand, the only Interpretation that could be

put upon the language used in two counts of the charge-sheet now in question is that they are particular offences at a particular point of time and if

the charges had been laid within three months, certainly they could have been sustained. Since the chargesheet has been filed beyond three months,

the learned Sessions Judge was right in his decision and the decision of the Sub-divisional Magistrate was not according to law.

This is appeal is dismissed.