STATE Vs. B M THAPER
LAWS(ALL)-1980-4-23
HIGH COURT OF ALLAHABAD
Decided on April 23,1980

STATE Appellant
VERSUS
B. M. THAPER Respondents


Referred Judgements :-

GOPAL DAS SAKSERIA VS. STATE [REFERRED TO]
STATE VS. S D GUPTA [REFERRED TO]


JUDGEMENT

H. N. Seth, J. - (1.)A learned Single Judge has referred these two appeals, filed by State of U. P. under Section 378 of the Criminal Procedure Code, for decision by a larger Bench.
(2.)ON 6-3-72, Sri V. N. Agarwal Inspector of Factories U. P. Incharge Gorakhpur Region, forwarded two complaints under Section 92 of the U. P. Factories Act, against Sri B. M. Thaper, occupier, and Sri M. L. Chopra, Manager of M/s. Deoria Sugar Mills Ltd. to the District Magistrate, Deoria. These two complaints were headed in the Court of District Magistrate Deoria' and contained a prayer that the court may take action against the two accused The complaints were also accompanied by two covering letters containing the following request by the Factory Inspector :- "It is requested that the cognizance on the complaint may kindly be taken by 6-3-72, the date on which the priod of limitation as provided under Section 106 of the Factories Act, 1948 will expire, to avoid dismissal of the complaint by trying court at a later stage. This may kindly be given top priority." The same day i.e. on 6-3-72, the District Magistrate forwarded the two complaints to S. D. M., Deoria for disposal. The complaints were received by S. D. M , Deoria on 7-3-72 and he after registering the cases against the accused persons, summoned them for 25-3-72.
On 15-5-73, one of the accused, namely, B. M. Thaper, moved an application inviting the attention of the court to section 106 of the Factories Act, which runs thus:- "No court shall take cognizance off any offence punishable under this Act unless a complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspector ; Provided that where the offence consists of disobeying a written order made by a Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed" and claimed that as cognizance of the offence had been taken more than three months after the alleged offence came to the knowledge of the Factory Inspector on 6-12-71, the proceedings for the trial of the two accused were incompetent.

The contention of the accused prevailed before the trying Magistrate, who by his order dated 4-5-74 dismissed the complaint after making the following observations :-

"In the present case the breach of Section 92 of the Factories Act, 1948 read with 42 and 46 of the U. P. F. Rule; 1950 was detected by the Inspector of Factories on 6-12-71 and the complaint to the District Magistrate, Deoria was submitted on 6-3-72. The District Magistrate took no cognizance on it, he has simply sent it to S. D. M., Deoria for disposal. The complaint, however, was received in the court of S. D. M. Deoria on .7-3-72 who took the cognizance and ordered for registration of the case and issued notice to the accused on that very day. These go to show that the order of the District Magistrate dated 6-3-72 was an executive order and not a judicial one as the cognizance in the case was taken by S. D. M., Deoria and not by District Magistrate, Deoria. This further leads to the conclusion that cognizance in the case was taken by the competent court on the expiry of period of limitation of three months when the offence alleged to have been committed was detected. The case against the accused is, therefore, not maintainable.................................".

(3.)BEING aggrieved, the State Government has filed these two appeals before this Court. When the appeals came up for hearing before a learned Single Judge, learned counsel appearing for the State relied upon a decision of this Court in the case of State v. S. D. Gupta, 1973 CrLJ 999 and contended that what section 106 of the U. P. Factories Act requires is that the complaint is made within this period cognizance thereof can be taken at any time there after. If the complaint is made within time, the fact that the court, in which the complaint is filed dealt with it administratively and transferred it to another court for disposal, cannot undo the making of it. He urged that as in the instant case, the two complaints made by the Factories Inspector, were received in the office of the District Magistrate on 6-3-72, they had been, irrespective of the date when the S. D. M. took action there on, made within the time prescribed by section 106 of the U. P. Factories Act and the order dismissing the complaint on the ground that it was barred by time can not be sustained.
Sri A. D. Giri, learned counsel appearing on behalf of the respondents contended that as defined by Section 8 (4) of the Factories Act, 1948 the District Magistrate was also a Inspector of Factories in his district. A perusal of the covering letter indicates that not with standing the fact that the two complaints were headed and addressed to 'the court of the District Magistrate, Deoria' the Factory Inspector forwarded them to the District Magistrate not with a view that he should himself try the accused but with a view that he should place them before a competent court. The two complaints reached the competent court only on 7-3-72 by which time the court had lost jurisdiction to entertain the same. In support of his submission, learned counsel for the respondent placed reliance on the case of Gopal Das Sakserta v. State, AIR 1955 Alld. 511.

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