B.J. Shethna, J.
1. Heard the learned counsel for the parties. The State has challenged In this appeal the order passed by the Chief Judicial Magistrate, Pali dismissing the complaint filed by the State under Section 92 of the Factories Act only on the short ground of limitation and acquitted the respondents accused.
2. The learned Magistrate held that the Complainant came to know about the accident of 31.5.88 on 2.6.88 and, therefore, the complaint ought to have been filed on or before 1.9.88 under the Act period of three months is provided for filling complainant. Instead of that the complaint was filed by his successor. Senior Inspector, in this office Shri V.D. Varnani on 22.9.88. Thus, the complaint was time barred by 21 days. Therefore, it was beyond the period of limitation and, therefore, no cognizance can be taken by him.
3. Learned Magistrate ought to have appreciated the fact that the Shri Moondra, predecessor in the office of the complainant, inspected the factory premises only on 23.6.88 and submitted his report. Mere intimation or information of the accident is not enough. The complainant has to go to the factory and enquire into the accident and submit his report regarding accident. Therefore, the period of limitation would start only after his visit to the factory place and his submission of report which was submitted on 23.6.88. Thus, it was clearly within the period of limitation, therefore, the order of learned Magistrate was required to be set aside on this ground.
4. However, learned counsel Shri Parihar vehemently submitted that learned Magistrate was justified in counting the limitation period from the date of intimation i.e. 2.6.88. This submission of Mr. Parihar cannot be accepted. The report can be submitted only after the personal inspection and till he is satisfied about the accident he would not be in a position to file the complaint. He went to the place of accident on 23.6.88 and after enquiring about the accident he submitted his report. Therefore, the period of limitation would start from the date he submitted his inspection report. The complaint was therefore within the period of limitation.
5. Learned counsel Shri Parihar also stated that as per the Supreme Court decision reported in AIR 1973 S.C. 309 the period of limitation would start from the date of intimation. Infact this Judgment was also relied upon by learned G.A. Shri Bhati for the State. After going through the Judgment of the Supreme Court carefully I am fully convinced that this judgment supports the contention of Shri Bhati rather than learned counsel Shri Parihar for the accused.
6. It is to be stated that even if this Court has held that the complaint was filed beyond the period of limitation then also the impugned order passed by the learned Magistrate would have been set aside by this Court. Because, the learned Magistrate has completely over-looked the provisions of Section 473 of Cr.P.C. It is the duty of the learned Magistrate and all the subordinate courts to keep in mind the provisions of Section 473 of Cr.P.C. while deciding much cases, where the complaint was filed beyond the period of limitation, particularly when the offences are of such nature committed under the Factories Act or Economic offences committed under various Acts. The Supreme Court in a case reported in AIR1987 S.C. 1353 has held that substantial Justice is required to be done by the courts and not to throw away the cases like this on the technical ground of delay.
7. Learned counsel Shri Parihar also argued that there are numerous decision of several High Courts under Section 138 of the Negotiable Instruments Act, wherein, the period of limitation -was provided for filing the complaint. Mr. Parihar submitted that Allahabad High Court and other High Courts have held that if the complaint was time barred then it was to be dismissed by the learned Magistrate as Section 5 of Limitation Act would apply. Even assuming for the sake of argument that there are such decisions under the Negotiable Instrument Act of different High Courts even then as held by this Court in S.B. Criminal Petition No. 124/96 decided on 24.5.96 held to be good law. It may be stated that there is no decision of this Court under' Section 138 of Negotiable Instrument Act.
8. In S.B. Criminal Appeal No. 124/961 have held that the complaint was within the period of limitation and in alternative I have also held that if the complaint was held to be time barred then also it was the duty of the learned Magistrate to take cognizance after condoning the dela; because in such type of offences committed under the Factories Act and economic offence, it is the duty of the courts below to see to it that the cases filed under the Factories Act and for the Economic office under various Act it should try to do substantial justice and not; to adopt short cut methods of dismissing the complaint on the ground of limitation which is highly depricated by the Hon'ble Supreme Court in a Judgment reported in AIR 1987 S.C. 1353, therefore, the submission of Mr. Parihar cannot be accepted and it is rejected.
9. Learned counsel Shri Parihar further submitted that the effect of the Supreme Court Judgment is wiped out by the amendment brought under the Factories Act by inserting Section 88A which was brought into effect w.e.f. 26.10.76. This submission of Mr. 'Parihar is totally base-les . I would like to reproduce Section 88A which is as under:
88A-Notice of certain dangerous occurrences- Where in a factory any dangerous occurrence of such nature as may be prescribed, occurs, whether causing any bodily injury or disability or not, the manager of ' the factory shall send notice thereof to such authorities, and in such form and within such time as may be prescribed.
10. From the above it clearly appears that under Section 88A duty is cast on the manager of the factory to send notice of the accident to the competent authority in a particular form within the time prescribed under the Act. It no where says that the limitation would start from the date on which Inspector receives the information. Hence, this submission is also rejected.
11. For the reasons stated above, this appeal is allowed. The matter is remanded back to the learned Magistrate. The learned Magistrate shall proceed with the case from the stage where he closed the case on the ground of limitation by passing the impugned order. This being an old matter it is expected that learned Magistrate shall decide the case as early as possible preferably within six months from the receipt of the order. Learned counsel Shri Parihar also states that this Court may directed the accused respondents to remain present before the learned Magistrate on 20.7.96 as lie himself would like to remain present before the learned Magistrate on that day. Request is granted. Respondents accused are directed to remain present before the learned Magistrate on 20th July, 1996.