- (1.) G. P. Mathnr, J. The controversy involved in these four petitions is identical and therefore they are being disposed of by a common order. Criminal Misc. Application No. 1856 of 1983 shall be treated as the leading case. When the petition was filed, the State was given time to file counter-affidavit on 8-3-1983 but as no counter- affidavit was filed, the petition was admitted on 24-8-1983. Even after twelve years when the petition was taken up for hearing on 27-3-1996 there was no counter-affidavit on the record of the case.
(2.) THE Deputy Chief Factory Inspector (Chemical) UP filed a criminal complaint against the applicant in the Court of Chief Metropolitan Magistrate, Kanpur on 2-3-1982 which was registered as Criminal Case No. 922 of 1982. THE main allegation in the complaint is that the walls of the factory had not been white-washed and the toilet and urinal near the weaving section had not been cleaned. THE applicants had thus contravened the provisions of Factories Act and were liable to be prosecuted under Section 92 thereof. Criminal Misc. Application No. 1857 of 1983 has been filed for quashing the proceedings of Criminal Case No. 3085 of 1982 under Sec tion 92 of Factories Act. In this case the complaint was filed on the allegation that the Safety Guard had not been attached to the belts and pullies of the Willooing Machine and the pit near the generator had not been covered. Criminal Misc. Application No. 1858 of 1983 has been filed for quashing the proceedings of Complaint Case No. 116 of 1982. The complaint has been filed for prosecuting the applicant under Section 92 of the Factories Act on the ground that the Form No. 5 regard ing the inspection done for measuring the pressure of Beam Dying Machines were not made available to the Deputy Chief Factories Inspector at the time of the inspection on 2-12-1981. Similarly the accounts books of the canteen were not made available to him. Criminal Misc. Application No. 1859/1983 has been filed for quashing the proceedings of Case No. 921 of 1982. In this case the complaint was filed on the ground that the dry bulb and wet bulb temperature chart of hygrometers wore not available at time of the inspection. The applicant moved an application before the learned Magistrate in all the four cases stating that the Factories Inspector who had inspected the Factory and had filed the complaint had no authority to do so and the prosecution of the applicant is, therefore, illegal. The Chief Metropolitan Magistrate Kanpur passed an exactly similar order on 22-2-1983 in all the cases which reads as under- "the case is still at the stage of evidence. The points raised by the applicants will be considered after the close of evidence. "
(3.) SRI V. B. Singh, learned counsel for the applicant has submitted that if the Deputy Chief Factory Inspector who had filed the complaint had no authority to do so, then the prosecution of the applicants is wholly illegal and in such circumstances the point raised by the applicants should have been decided before proceeding with the case. Learned counsel has further submitted that if after the entire evidence is recorded, it is found, that the complaint had been filed by a person who had no authority to do so it will be a sheer wastage of public time and harassment to the accused-applicant. The complaint against the applicants has been filed for prosecuting them under Section 92 of the Factories Act, Section 105 of the Act as it stood at the relevant time laid down that no court shall take cognizance of any offence under the Factories Act except on a complaint by or with the previous sanction in writing of a Inspector. Sub-section (1) of Section 8 of the Act laid down that the State Government may, by Notification in the official gazette appoints a person who possessed the prescribed qualifica tion to be Inspector for the purposes of the Act and may assign to him such local limits as it may think fit. Sub-rule (h) of Rule 2 of U. P. Factories Rules, 1950 defines a 'inspector' and it means an officer appointed under Section 8 of the Act and includes 'chief Inspector' and 'deputy Chief Inspector'. It may be noticed here that Rule 14-E was inserted after Rule 14-D on 26-11-1993 and the same reads as follows: "14-E. Qualifications for the post of an Inspector for the purposes of sub-section (1) of Section 8 of the Factories Act, 1948 (Act No. LXIII of 1948) shall be the same as prescribed for the post of Inspector of Factories, in the Uttar Pradesh Inspector of Boilers and Factories Service Rules, 1980. " In the present case the complaint had been filed in the year 1982 i. e. prior to 26-11-1983 when Rule, 14-E was not in existence. In absence of a counter-affidavit it is not possible to ascertain whether any qualifications had been prescribed by the State Government for appointment of a person as Inspector at the relevant time. For the same reason it is not possible for this court to ascertain as to whether the persons who had filed the com plaint against the applicants had been validly appointed as Inspectors. There can be no doubt that if the persons who had filed the complaints against the applicants had not been validly appointed as Inspectors as defined in Section 8 of the Act they would be having no authority to file the complaint and to prosecute the applicants. In these circumstances the plea raised by the applicants goes to the root of the matter and should be decided at the initial stage.;