State of Gujarat vs Vijendra Kantilal Patel

J.C. Upadhyaya, J.—Being aggrieved and dissatisfied with the impugned common judgment and order rendered by learned Metropolitan

Magistrate, Court No. 4, Ahmedabad in Criminal Case No. 1699 of 1996, Criminal Case No. 1700 of 1996 and Criminal Case No. 1701 of

1996, the appellants-State of Gujarat preferred these appeals u/s 378 of the Criminal Procedure Code (''Cr.P.C.'', for short).

The prosecution case in nutshell is that the Factory Inspector-Manubhai Madhabhai inspected the establishment of the respondent-accused on

dated 16.4.1996. During the course of his inspection, it was revealed that thirteen workers were working and the manufacturing process was

undertaken with the help of electric power. It was also revealed that the establishment was not registered as Factory under the Factories Act,

required license was not obtained, no prior required permission was obtained before using the premises as Factory, muster-roll of the workers was

not maintained. It was alleged that thus, the respondent-accused committed breach of Section 6(1)(d), 4(1), 3(1) and 110(1) and thereby

committed offence punishable u/s 92 of the Factories Act. Against the respondent-accused, three criminal complaints came to be filed by the

successor Factory Inspector Kalpeshkumar Manilal, which came to be registered as Criminal Case Nos. 1699 of 1996 to 1701 of 1996.

2.1 Plea of the respondent-accused in connection with the three complaints came to be recorded by the trial Court, to which he did not plead

guilty and claimed to be tried. Thereupon, the prosecution adduced its oral evidence of complainant-Factory Inspector Kalpeshbhai Manilal and

Factory Inspector Manubhai Madhabhai. No more oral evidence was adduced. Required documents were produced. After the completion of oral

evidence adduced by the prosecution, the learned Magistrate recorded further statement of the respondent-accused u/s 313 of the Cr.P.C. and the

accused denied generally all the allegations levelled against him by the prosecution and stated that he was falsely implicated in the cases. After

appreciating the evidence on record and the submissions made on behalf of both the sides, the learned Magistrate recorded acquittal of the

respondent-accused by virtue of the common judgment and order rendered on 30.9.1998. Feeling aggrieved and dissatisfied with the order of

acquittal recorded by the learned Magistrate, the appellants-State of Gujarat preferred these appeals.

On behalf of the appellants-State, learned APP Mr. Mengdey submitted that the trial Court erred in not properly appreciating the evidence on

record. That the Factory Inspector Kalpeshkumar Manilal, who is complainant presented the criminal complaints before the trial Court. It is true

that the complainant Factory Inspector Kalpeshkumar Manilal did not visit the establishment of the accused, but, his predecessor Factory

Inspector Manubhai Madhabhai visited the establishment of the accused on dated 16.4.1996. During the course of the visit of Factory Inspector

Manubhai Madhabhai, certain irregularities were found out. The prosecution has examined the Factory Inspector Manubhai Madhabhai, and in his

evidence, he categorically proved the charges levelled against the accused. The Factory Inspector is a public servant and independent witness. The

learned trial Court should have relied upon his evidence and should not have discarded the same simply on the ground that the evidence is not

corroborated by any other evidence. Therefore, it is submitted that the prosecution successfully proved its case beyond any reasonable doubt, and

therefore, all the three appeals may be allowed and the impugned common judgment and order rendered by the trial Court recording the acquittal

of the respondent-accused be set-aside and the respondent-accused be appropriately sentenced for the commission of offence punishable u/s 92

of the Factories Act in accordance with law.

On behalf of the respondent-accused learned advocate Mr. Malkan submitted that the trial Court did not commit any illegality or any irregularity

in recording the acquittal of the respondent-accused. The trial Court rightly appreciated the evidence on record. It is submitted that this being

acquittal appeals arising u/s 378 of the Cr.P.C., the powers of this Court are limited and even if two views are possible, one view leading to the

innocence of the accused and other view leading to the guilt of the accused, the view which is favourable to the accused requires to be accepted.

There is no reason whatsoever to interfere with the order of acquittal recorded by the trial Court, therefore, it is submitted that the appeals may be

dismissed.

Before the evidence adduced by the prosecution is re-examined and re-appreciated, it would be necessary to consider the ratio laid down by

the Honourable the Apex Court in the case of Chandrappa and Others Vs. State of Karnataka,

An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the

evidence before it may reach its own conclusion, both on questions of fact and of law.

Various expressions, such as, ""substantial and compelling reasons"", ""good and sufficient grounds"", ""distorted conclusions"", ""glaring mistakes"", etc.

are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of

flourishes of language"" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review

the evidence and to come to its own conclusion.

An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the

presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his

innocence is further reinforced, reaffirmed and strengthened by the trial court.

If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it

ought not be disturbed by the appellate court.

In light of the observations made by the Honourable the Apex Court, in Chandrappa and Ors. Case (supra) and considering the evidence on

record, it transpires that so far as the evidence adduced by complainant Factory Inspector Kamleshkumar Manilal, Exh.5 is considered, he

appears to be a formal complainant. According to his version, he succeeded Factory Inspector Manubhai Madhabhai and he himself did not visit

the establishment of the accused. According to his evidence, before his predecessor Factory Inspector Manubhai Madhabhai filed the criminal

complaints before the trial Court, Manubhai came to be transferred and he took the charge as Factory Inspector. That, therefore, he filed the

complaints in the Court of learned Magistrate. In his cross-examination on behalf of the defence, he admitted that he has no personal knowledge

about the incident nor he knows the accused. Under such circumstances, the evidence adduced by complainant Factory Inspector Kalpeshbhai

Manilal cannot be said to be of any use to the prosecution.

The evidence of Factory Inspector Manubhai Madhabhai is at Exh.73. According to his evidence on 16.4.1996, he visited the establishment

and at that time thirteen workers were working and the manufacturing process was undertaken with the help of electric power. At the time of his

visit, required license was not shown to him nor muster-roll register was maintained, no prior sanction of the required authority was obtained

before using the premise as factory. He deposed that on 19.4.1996, he issued a notice by R.P.A.D. to the respondent-accused, which was

received by him. In his cross-examination, he admitted that he has no documentary evidence showing that the respondent-accused is owner or

proprietor of the establishment. He categorically admitted that he did not collect sample of the cloth alleged to have been manufactured in the

establishment. He further admitted that R.P.A.D. slip, Exh.8 bears the signature of a person, whom he cannot identify and he even cannot say as to

whose signature the R.P.A.D. slip, Exh.8 bears.

8.1 In the impugned judgment, appreciating the evidence of the above referred two witnesses examined by the prosecution, by reasoned order, the

learned Magistrate recorded acquittal of the accused. The learned Magistrate came to the conclusion that the prosecution failed to establish the

basic fact as to whether the respondent-accused is owner or proprietor of the establishment. It was further observed that though the prosecution

case was that thirteen workers were working in the establishment, yet, neither any documentary evidence to that effect nor even any of the workers

came to be examined by the prosecution. Even the Factory Inspector Manubhai Madhabhai did not record statement of any worker. The learned

trial Judge ultimately came to the conclusion that the prosecution failed to prove beyond any reasonable doubt that thirteen workers were working

in the establishment and that the manufacturing process was undertaken with the help of electric power. The learned Magistrate further observed

that as provided u/s 2 of the Factories Act, the prosecution was required to prove that ten or more workers were employed in the establishment

and that the manufacturing process was undertaken with the help of electric power.

8.2 In light of the above discussions, I do not find any illegality or any irregularity committed by the learned Magistrate while recording the acquittal

of the respondent-accused. As observed earlier, even if two views are possible, one leading to the innocence of the accused and another leading to

the guilt of the accused, the view which is favourable to the accused is required to be accepted. Thus, there is no reason whatsoever to interfere

with the order of acquittal recorded by the trial Court.

For the foregoing reasons, the appeals stand dismissed.