STATE OF UTTAR PRADESH Vs. BALWANT SINGH BIRDHI
LAWS(ALL)-1965-10-16
HIGH COURT OF ALLAHABAD
Decided on October 11,1965

STATE OF UTTAR PRADESH Appellant
VERSUS
BALWANT SINGH BIRDHI Respondents


Referred Judgements :-

SAMBASIVAM V. PUBLIC PROSECUTOR [REFERRED TO]


JUDGEMENT

- (1.)THIS is an appeal by the State against an acquittal of Balwant Singh Birdhi, manager of two factories, Modi Torch Works and Modi Hurricane Lantern Factory, from a charge under Rule 123 of the Uttar Pradesh Factories Rules, 1950. Two complaints were filed before the trial Court. They were identically worded except that one complaint was with respect to tho non-production of the inspection book relating to Modi Torch Works, Modinagar, and the other was with respect to the non-production of the inspection book of Modi Hurricane Lantern Factory. The demand for the inspection books of the two factories was made at one and the same time by the same inspector and the two cases could well have been the subject-matter of a single trial by virtue of the provisions of either Section 235, Criminal Procedure Code, or in any case, of Section 234 (1), Criminal Procedure Code. The learned magistrate, who tried the two case3 separately, recorded evidence in the two cases separately, but acquitted the respondent in both tho cases by a single judgment dated 16 July 1963. The learned magistrate ordered that the judgment in Case No. 58/9 of 1963 relating to the Modi Toroh Works, which is before me in appeal, will be placed on the record of Case No. 60/9 of 1963 relating to the Modi Hurricane Lantern Factory.
(2.)THE learned magistrate did not accept the statement of Sri P. C. Joshi, the factory-inspector, that the inspection book was not produced because the inspector did not promise that he will not mention in it that the factory was working on a Sunday. On the other hand, the learned magistrate, who had the advantage of seeing the witnesses depose, accepted the version of the respondent-manager that he offered to produce the inspection book if the inspector would wait for some time to enable him to send for the law office clerk to open the law office in which the inspection book was kept. The defence case was that the inspection book, was kept in the law office which was closed as it was a Sunday, and that the key was with the clerk concerned who was not present at that time owing to the holiday. The Chief Inspector of Factories, who had filed the two complaints, did not appeal at all against either of the two acquittals. An appeal has, however, been preferred under Section 417, Criminal Procedure Code, by the State from the order of acquittal in Case No. 58/9 of 1963 relating-to the Modi Torch Works.
(3.)SRI K. C. Agarwal, appearing for the respondent, has put forward preliminary objections. He contends that the complainant, the Chief Inspector of Factories, not having appealed under Section 417 (3), Criminal Procedure Code, the State could not have appealed against the order of acquittal. It Is submitted that, in a criminal case instituted upon a complaint, the only means of questioning an acquittal is by way of a special leave to appeal under Section 417 (3), Criminal Procedure Code. On the other hand, it has been argued for the State that the right of appeal under Section 417 (1) given to the State is against any order of acquittal in any case either by the trial Court or by an appellate Court. Reliance is placed on the language of Section 417 (1), Criminal Procedure Code, which subjects this right of the State to prefer an appeal against any order of acquittal to the provisions of Sub-section (6) of Section 417, Criminal Procedure Code, only. It does not subject this special right of the State to the provisions of Section 417 (3), Criminal Procedure Code. Apparently, the intention of the legislature was to give the State a right of appeal without obtaining special leave from every order of acquittal and to subject this right only to the condition that no such right will be available in a case in which the complainant could have filed an application for grant of special leave, and, after having filed such an application, has failed to obtain that special leave. In the present case, the complainant could certainly have filed an application for grant of special leave under Section 417 (3), Criminal Procedure Code. If such an application had been filed and refused, the State would not have had a right of appeal at all. But, no such application having been filed by the complainant or rejected, the right of the State to file an appeal under Section 417 (1), Criminal Procedure Code, remains intact. The language of" Section 417 (1), Criminal Procedure Code, supports the contention put forward on behalf of the State. I, therefore, overrule this preliminary objection.
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