TMI Blog1954 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... In the companion case from which Criminal Appeal No. 762 of 1954 arises, the charge was that the respondent had failed to submit to the Chief Inspector of Factories an application in Form No. 2 for registration of the factory and grant of licence as required under Section 6 of the Factories Act read with Rule 4 of the Bombay Factories Rules, 1950. It appears that the learned Chief Presidency Magistrate was about to take the pleas of the respondent to the two charges framed against him, when it was brought to his notice by the accused that one of his pleas was that the prosecution in both the cases was barred by limitation under the provisions of Section 106 of the Factories Act. The learned Chief Presidency Magistrate was disposed to accept this plea and so he has held in both the cases that the prosecution is barred by limitation.- In the result, he has acquitted the respondent of the offences charged. That is how the only question which arises before us in these two appeals is whether the learned Chief Presidency Magistrate was right in coming to the conclusion that the prosecution against the respondent in both the cases was barred by limitation. 2. Before dealing with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Sub-Rule (2) of Rule 3 provides that, if the Chief Inspector is satisfied that the plans are in consonance with the requirements of the Act, he shall, subject to such conditions as he may specify, approve them by signing and returning to the applicant one copy of each plan; it would also be open to the Chief Inspector to call for further particulars before granting his approval. Rule 4 then provides for the application for registration and grant of licence. In the present appeals we are concerned with the provisions of this rule. According to this rule, the occupier at every factory, whether in existence at the date of the commencement of the Act or coming within the scope of the Act, after its commencement shall submit to the Chief Inspector an application to Form No. 2 for the registration of the factory and grant of a licence; and the application shall be accompanied by the notice of occupation in form No. 3, in triplicate, prescribed under Section 7, provided that the occupier of premises to use as a factory on the date of the commencement of the Act shall submit such application within 30 days from the date of the commencement of the rules. Section 7 of the Act provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Bombay Factories Rules. This charge, therefore, is based on two acts of the respondent: his failure to apply for registration and his conduct in running the factory without obtaining a licence. The learned Chief Presidency Magistrate has held that, -in respect of the charges in both the cases, the provisions of Section 106 of the Factories Act come into operation and the effect of these provisions is that the prosecution must be held to be barred by limitation. The penal section in the Act is Section 92. It provides that, save as is otherwise expressly provided in this Act and subject to the provisions of Section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rule made thereunder of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable in a manner prescribed by this section. Section 106 provides that no Court shall take cognisance 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. There is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m by reason of his failure to apply for the registration of his factory cannot be said to be a continuing offence. The factory was working even before the commencement of the Act and under Rule 4 it was obligatory on him to have applied for the registration of the factory in Form No. 2 and to have given notice of occupation in Form No. 3 within 30 days from the date of commencement of the rules. The failure of the respondent to comply with these requirements makes the establishment of the factory and its occupation by him subsequent to the lapse of 30 days alter the commencement of the rules irregular and unlawful. But it would be difficult to hold that the said establishment and occupation 'per se' would constitute a continuing offence. The position with regard to the requirement of the grant of a licence is, however, substantially different. The grant of a licence which is issued in Form No. 4 prescribed under Rule 5 authorises the occupier to use the premises mentioned in the licence as a factory employing the number of workers as specified and using motive power as indicated in the licence subject to the provisions of the Factories Act and the rules made thereunder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month mentioned In the section. Section 140, Sub section (5), of that Act, has also been pressed into service by Mr. Khandalawala. This sub-section provides that, where any offence is committed under the Act by reason of a failure to make an examination, enter a report or do any other thing at or within a time specified by this Act or any regulation or order made thereunder, the offence shall be deemed to continue until the examination is made, or the report entered, or the other thing done, as the case may be. Mr. Khandalawala says that, where the Legislature wants to make a continuing default on the part of an occupier of a factory a continuing offence liable to punishment, the Legislature adopts proper phraseology and makes adequate provisions in that behalf. The Indian Factories Act, says Mr. Khandalawala, has not made adequate provisions, nor has it adopted appropriate phraseology to Justify the conclusion that the conduct of the respondent in using the premises as a factory amounts to a continuing offence. Mr. Khandalawala has also invited our attention to somewhat similar provisions contained in Section 390 of the City of Bombay Municipal Act (Act III of 1888). Sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be impossible to accede to the argument that the failure to comply with requirements of such paramount importance is not intended to be punished within the meaning of Section 92 of the Act. Even if the words used in Rule 4 may, and can, be improved upon, the object of the provision is clear, and in construing the words used in Rule 4 it would be open to us to bear in mind this object. In regard to remedial and beneficent (legislation like the Factories Act, what is sometimes described as the equitable construction of the statute is permissible and it would be our duty to adopt such construction of the statute as shall suppress the mischief and advance the remedy. 7. We must, therefore, hold that the failure to apply for the registration of the factory as well as the failure to apply for the grant of a licence are punishable within the meaning of Section 92 of the Factories Act. In regard to the first default, however, it may not be possible to hold that the conduct of the defaulter constitutes a continuing offence. In regard to the latter default, we feel no hesitation in holding that his conduct in using the premises from day to day without obtaining a licence is a cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate when the act constituting the offence first took place, the statement is obviously wrong because it would abolish altogether the distinction which has been recognised over and over again between an act which constitutes an offence once and for all and an act which continues and therefore constitutes a fresh offence on every day on which it continues. In-- 'State v. Babu Gulam Mahomed', Cri. Revn. Appln. No. 114 of 1951, D/- 4-4-1951 (Bom) (D) Rajadhyaksha and Dixit JJ. took the same view about the nature of a continuing offence and the plea of limitation which may be raised in respect of it. A similar view has been taken by Bhagwati and Vyas JJ. in - 'State of Bombay v. Devraj Tulsi', AIR1952Bom146 . In this case, eight accused were tenants of a certain building, against the owner of which the Municipality had issued a notice of requisition under Section 354 of the City of Bombay Municipal Act (Act 3 of 1888) calling upon him to remove the structure which was in a dilapidated condition. The tenants refused to hand over possession of the premises to the landlord and so the landlord had to approach the chief Judge of the Court of Small Causes for the requisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. Take the case of the factory with which we are concerned in the present appeals. From one point of view, the default of the respondent consists in his failure to apply for a licence and this default may well be described as omission on his part to apply for a licence. There is, however, a positive aspect of the matter and that is that the respondent was running the factory from day to day without obtaining a licence. In our opinion, 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. That is why, with very great respect, we feel some doubt as to whether the distinction between omission and positive act, on which some emphasis has been laid by Bhagwati J., can be said to be decisive of the character of the offence. Besides, as Mr. Justice Bhagwati himself has fairly pointed out, the distinction which he was seeking to draw is inconsistent with the view expressed by Beaumont C. J. in 'Gursondas' case (C); 9. There is one more decision to which reference must be made. In -- 'Public Prosecutor v. Veerabadrappa', AIR1953Mad204 , Menon and Mack JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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