1. The facts giving rise to this petition, broadly stated, are that the petitioners 1 and 2 are the general manager and the service Engineer, respectively, of the Indequip Engineering, Ltd., Ahmedabad. The Indequip Engineering. Ltd., has been manufacturing and supplying machines such as drying range machine to various industrial concerns. One such machine was supplied to the Aruna Mills, Ltd., in Ahmedabad. After supplying the same, that machine was erected and handed over to the Aruna Mills, Ltd., on 2 May 1967 as per the specifications and other terms and conditions mentioned in the correspondence exchanged between the two companies. Respondent 1 has been working as the manager of the Aruna Mills, Ltd., and respondent 2 was working as a sales representative of the Indequip Engineering, Ltd.
2. At about 3-55 p.m., on 1 June, 1967, an accident took place in the bleaching department of the Aruna Mills, Ltd., which resulted in injuries to three workers employed in the said mills. That led Sri U. A. Pandya, the Inspector of Factories, to visit the mills on that very day and he made necessary inquiry about the accident. Then, the state of Gujarat, at the instance of the Legal Assistant, Factory Department of the Government of Gujarat, at the Ahmedabad, filed three different complaints, Nos. 2136 to 2138, on 23 August, 1967 in the court of the city Magistrate, Ahmedabad, against respondent 1, the manager of the Aruna Mills, Ltd. Inter alia alleging that he had contravened the provisions of S. 92 of the Factories Act, 1948, read with rule 61(7) of the Gujarat factories Rules read with S. 31 of the Factories Act, 1948. In the meantime, respondent 1 filed three complaints, Nos. 2513 to 2515, in the same Court against these petitioners and respondent 2 under S. 101 of the Factories Act, inter alia alleging that they were responsible for the contravention of those provisions in respect of which he had been prosecuted by the State. The process was directed to be issued against them by the learned magistrate in respect of the said offences.
3. The petitioners appeared before the Court in pursuance of the process issued against them and presented an application before the learned magistrate inter alia contending that there was no private of contract and/or any connexion or relation between the accused and the complainant and that in no case the provisions of S. 101 of the Factories Act can be attracted so as to require the Court to proceed against them. The complaint was, thus, said to be not competent under the provisions of the Act. After hearing the learned advocates appearing for the parties, the learned magistrate rejected the same. In his view, since he had already issued the process against the accused in the complaint to which the summons procedure applied, he had no other alternative but to proceed to bear the complainant and take all such evidence led by him as contemplated in S. 244(1) of the Criminal Procedure Code and that, therefore, it was not open to him to consider the question as to whether there was a prima facie case against the accused or not. Feeling dissatisfied with that order passed on is 19 December, 1967 by Sri N. K. Bharwad, City Magistrate, Eleventh Court, Ahmedabad, the petitioners. Original accused 1 and 3, have come in revision before this Court.
4. The contention of Sri Trivedi, the learned advocate for the petitioners, was that there is no provision which debars the magistrate from hearing any preliminary points raised in the case, though no doubt, provided they were the points of law and that they arose on the basis of the allegations contained in the complaint. In the present case, according to him, the trial had not proceeded and as soon as the process in the case was served on them, they appeared before the learned magistrate and raised the point that the complaint against them was not competent in the sense that it was not open to invoke the jurisdiction of the Court by reason of the provisions contained in S. 101 of the Factories Act, 1948. According to him, 'any other person' contemplated under S. 101 would be a person who has had something to do actually with the working of that machinery or the like so as to enable the employer or manager to point him out as a person to be really proceeded against for the alleged breach of the provisions under the Factories Act, instead of himself, and, in any event, it cannot include any person such as the vendor or the supplier of any such machinery to the complainant. He further urged that the present complaint against them has been by reason of applicability of S. 101 of the Factories Act and if he were able to show that this provision of law cannot govern persons such as the accused in the circumstances of the case, such a point must be considered at the outset before actually any trial commences.
5. Ordinarily speaking the trial of any summons case before the magistrate commences with S. 242 of the Criminal Procedure Code. That takes place with the accused appearing before the Court in pursuance of any summons issued to him. In the present case, except that the accused appeared before the Court in pursuance of any such summons issued against them, nothing further had taken place as contemplated under S. 242 of the Criminal Procedure Code. In other words, the particulars of the offence of which they were accused were not stated to them and no plea had come to be recorded thereunder. Thus, the proceedings cannot be said to have so started as to require him necessarily to start with hearing the complainant and take all such evidence as may be produced by him as required under S. 244 of the Criminal Procedure Code. The material question before the learned magistrate, therefore, was as to whether he should have heard the accused appearing before him in pursuance of the summons issued against them on the point such as the one raised by them, which, if accepted, goes no doubt to the root of the matter. If the interpretation in reference to words 'any other person' used in S. 101 of the Factories Act were not to cover any such suppliers or vendors of machinery, the complaint becomes meaningless so far as the accused are concerned and the Court would have not jurisdiction or justification to proceed to hear any evidence in that regard against the accused in the case.
6. Now, there would arise some cases where there exists a legal bar against the institution or continuance of the criminal proceeding, or where the allegations in the first information report or the complaint do not make out the offence alleged against them, or where the Court has no competence or jurisdiction to try the same, or where the question of limitation or maintainability of the complaint arises, the Court has to go into those questions, for they go to the root of the matter and time otherwise spent in hearing the whole matter may be found ultimately wasted. But those points must arise on the facts admitted or on the basis of allegations as they stood in the complaint and no evidence is at all required to be taken for consideration of any such points. In those circumstances it is the duty of the Court to hear them at the earliest stage before commencing with the trail. In this connexion, a reference was invited by Sri Trivedi to the observations made in a case In re T. C. Nichodemus [A.I.R. 1955 Mad. 561]. They run thus :
'An accused person has a right to raise a preliminary objection to the maintainability of the complaint either on the ground of limitation or of jurisdiction or any other analogous ground and to have it decided so that he may not be put to the necessity of undergoing a trial in case he succeeds on the preliminary objection. There may be cases in which preliminary points should not be allowed to be raised. But there are cases where the objection goes to the very root of the maintainability of the complaint and in such cases it is not only permissible but desirable that such objections should be raised at the earliest possible opportunity and decided so that unnecessary waste of time of the Court and of the litigant public might be avoided.'
7. As I said above, the preliminary point raised by the accused in the case was as to the maintainability of the complaint having regard to the provisions contained in S. 101 of the Factories Act and that, if accepted, would go to the root of the matter. It is purely a point of law inasmuch as certain words used therein require to be interpreted so as to entitle respondent 1 to invoke jurisdiction of the Court to proceed against the petitioners in those cases. The question is about their criminal liability for the accident committed in Aruna Mills, Ltd., arising as a result of S. 101 of the Act. No evidence is required to be led as the facts, as they stand in the complaint, have to be taken as the basis for deciding that point.
8. Now, the stage of the proceedings had not gone so far as to proceed under S. 244 of the Criminal Procedure Code as thought by the learned magistrate. The application by the accused was in fact given before he could even act under S. 242 of the Criminal Procedure Code. Not only that, but in my view even if the learned magistrate had passed the stage of complying with the provisions contained in Ss. 242 and 243 of the Criminal Procedure Code, but before actually commencing to hear the complainant, i.e., by recording his evidence and of his witnesses under S. 244 of the Criminal Procedure Code, if any such points were raised, it is desirable and in a way necessary to consider the same, provided, as I said above, they go to the root of the matter, and no evidence is required to be led by the parties. That stage can be said to be the earliest stage when such objections can be raised, and if they are decided at that stage, they save the unnecessary waste of time of the Court and the litigant public. The learned magistrate was, therefore, wrong in rejecting that application.
9. In the result, therefore, the order passed by the learned magistrate is set aside and the case shall go back to him with a direction that he shall hear the preliminary point of law raised by the accused in the case with regard to the applicability of S. 101 of the Factories Act, 1948, and then proceed further according to law.
10. Before the arguments commenced in this matter, a point had arisen requiring the petitioners to file separate applications is respect of all the three complaints. Sri Trivedi, the learned advocate for the petitioners, agreed to file two other separates petitions. All the three petitions are that way considered together and a commons order, as stated above, is passed in respect of all of them.