STATE OF GUJARAT Vs. J L VAKHARIA
LAWS(GJH)-1963-8-6
HIGH COURT OF GUJARAT
Decided on August 22,1963

STATE OF GUJARAT Appellant
VERSUS
J.L.VAKHARIA Respondents

JUDGEMENT

V.B.RAJU - (1.) This is an appeal by the State against the acquittal of the respondent who was prosecuted under sec. 92 of the Bombay Factories Act 1948 for contravention of Rule 72 of the Bombay Factories Rules1950 This rule reads as under:-- Canteens.-(1) Rules 72 to 78 shall come into force in respect of any class or description of factories on such dates as the State Government may by notification in the official gazette appoint in this behalf. (2) The occupier of every factory wherein more than 250 workers are ordinarily employed and which is specified by the State Government by a notification in this behalf shall provide in or near the factory an adequate canteen according to the standards prescribed in these rules. The canteen shall be available for the use of the workers within six months from the date of such notification. The trying Magistrate took the view that the prosecution was barred by limitation in view of the provisions of sec. 106 of the Factories Act which provides that No Court shall take cognizance of any offence punishable under the 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 . According to the learned Magistrate Rule 72which was framed under sec. 46 of the Factories Act 1948 was made applicable to the factory of the respondent on 20-12-1950 but the prosecution was launched in 1961. The learned Magistrate relied on 1956-2 Labour Law Journal 153 ( State of Bombay v. Bhiwandiwala) and held that the offence of not providing a canteen within six months from the date of notification was not a continuing offence and that as the prosecution was not launched within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspectorit was barred by limitation. Hence the present appeal by the State.
(2.) Section 106 of the Factories Act provides that no Court shall take cognizance of any offence punishable under the Act unless complaint there of is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. We have therefore to see on what date or dates the alleged offence was committed and the alleged commission of the offence came to the knowledge of the Inspector.
(3.) The expression "commission of the offence" may refer to positive acts as well as omissions. An offence may be committed by the commission of a positive act or by the omission to do an act. In the case of certain acts the commission of the act would be complete as soon as the act is committed and the offence would be repeated only if the act is repeated. But there may be some positive acts which by their definition imply the continuous commission of the act. For instance the offence of kidnapping is defined as taking or enticing a minor out of the keeping of the lawful guardian of the minor etc. The taking out of the lawful guardianship is an act which continues after the act is once commenced and which continues until it is terminated by another positive act. In a sense there is nothing like a completion of the act unless the minor is restored to the lawful guardian. Such a positive act does not terminate unless the person commits another positive act of restoring the minor to the lawful guardian. But omission to do a positive continuous act may be made criminal. Here again the omission once begun does not terminate until a positive act is done. For instance if the omission to provide food is an offence that omission continues unless and until food is provided. But the omission to do a single positive act which is not continuous may not be a continuing offence.;


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