Harries, C. J.
1. This is an appeal on behalf of the Provincial Government from an order made by a learned Magistrate of the first class, Howrah, acquitting the respondents upon a charge Under Section 60(a)(iii), Factories Act.
2. Respondent 1. P. Sen, wa3 the occupier and respondent 2, A. T, Sen, was the manager of a registered factory (regigfcered No. 316) styled Sen & Co., situated at No. 3 Kuchil Sarkar Lane, Howrah. On 16th September 1947, Sri S. K, Sinha, Inspector of Factories, inspected this factory and found moving parts of the machinery not securely fenced or guarded as required by Section 24(i)(c), Factories Act, read with n, 24(1), Bengal Factories Rules. In particular the back and change gears of lathes, toothed gears of the boring mills, oblique belts driving the blowers, and Emery wheel were not securely fenced.
3. On 9th February 1948, the Inspector, Sri S. E. Sinha, himself filed a complaint in the Court of the District Magistrate, Howrah, against both respondents Under Section 60(a)(iii) read with Section 32 (a) and Section 24 (1)(c), Factories Act (Act XXV [25] of 1934), complaining of the contraventions of the provisions of the Factories Act and the Rules framed thereunder. The respondents were summoned to appear and were in due course tried by a learned Magistrate.
4. At the trial the prosecution examined three witnesses the main witness being the Inspector, Sri S. E. Sinha, He gave an account of his inspection of the factory and stated that certain machinery, details of which I have already given, were not securely fenced and were dangerous, He pointed out that by reason of the absence of fencing of this machinery the clothing of workmen might be caught up in the machinery which might result in very serious consequences. He stated that he had reported the matter to his superior, the chief Inspector, who had sanctioned a prosecution in this case.
5. The evidence of Sri S. E. Sinha was corroborated by the evidence of Sri Be joy Kumar Dutta who was the second seniormosfc Inspector of Factories in West Bengal posted at headquarters. He also examined this factory on 20th December 1916, and on that occasion he discovered that the moving parts of the machinery which I have mentioned, were not properly fenced. Hi3 evidence ia important as tending to corroborate the evidence of the Inspector, Sri 8. K. Sinha. The only other witness was Sri Nabakumar Mandal, who was a clerk dealing with prosecutions relating to factories. His evidence is not important, as he states that after the Chief Inspector of Factories had sanctioned this prosecution he drafted the complaint and placed it before the Inspector concerned, who later, as I have said, filed it.
6. On behalf of the defence one witness was called, namely, Sri Arun Kumar Mukherjee who was a B. Bo. of the Calcutta University and had some training in the mechanical and engineering department of the Indian Iron and Steel Co. Ltd. and later he joined an Indian Ordnance Factory at Murad Nagar. He stated that he had inspected the factory and in his view there was no dangerous machinery exposed.
7. There can be little doubt upon the evidence that the portions of the machinery mentioned by the Inspector, Sri S. K. Sinha, were exposed and required fencing. I am not impressed with the evidence of Arun Kumar Mukherjee who admittedly knew the respondents well, In any event he is not a person of any great experience and could not be expected to know what was required under the Factories Act.
8. The learned Magistrate who heard the case acquitted the accused upon a preliminary point. It had been contended before him that the prosecution was wholly ineffective by reason of the fact that the proceedings had not been instituted by or with the previous sanction of the Chief Inspector. Sri S. K. Sen and the clerk who were called mentioned that the Chief Inspector had been consulted and had sanctioned the prosecution but there was no sanction of that officer proved. That being so the learned Magistrate was of opinion that the prosecution fil-Cr.L.J. 1920 was bound to fail on that ground alone. He therefore did not deal with the evidence in any great detail, though he pointed out that the evidence showed that there had been no accident at this factory, and that appeared to him was a circumstance greatly in favour of the respondents. However, he did not express his view as to whether there were or were not any breaches of the Factories Act.
9. The section of the Factories Act relating to fencing is Section 24. Sub-section (1) of that section is in these terms :
In every factory the following shall be kept adequately fenoed, namely:
(a) every exposed moving part of a prime mover and every flywheel directly connected to a prime mover,
(b) every hoist or lift, hoist well or lift-well, and every trap-door or similar opening near which any person may have to work or pass, and
(c) every part of the machinery which the Provincial Government may prescribe.
10. It will be noticed that the Provincial Government may prescribe the fencing of any machinery which it regards as dangerous. Under B. 32 of the Act the Provincial Government are empowered to make rules for carrying out the purposes of the Act. Under that power the Bengal Factories Rules, 1940, were made. Rule 21 of those rules provides:
(1) Every moving part of machinery shall be securely fenced or otherwise adequately safeguarded against injury to workers, unless it is in such a portion or of suab construction as to be as safe to every person employed or working on the premises, as it would be if securely fenced.
(2) Every fence or other safeguard shall be strong and rigid and shall be constructed to the approval of the Inspector.
(3) Every fence shall be so placed that it ia impossible for any person to pass between it and the moving part and shall also prevent contact of any person of his clothing with the moving machinery:
Provided that any automatic or other safety device for the protection of workers from dangerous parts of machinery which ia not proparly effective or ia not well and properly constructed or is not maintained in efficient working order, shall not be deemed to be securely fenced or adequately safeguarded within the meaning of this rule.
11. It will be seen that this rule requires every moving part of maohinery to be securely and adequately fenced, and the necessity for fencing is only dispensed with if Such a moving part is in such a position or of such construction as to be safe to every person employed or working on the premises, as it would be if it were securely fenced. For example, if the moving part of the machinery ia at a place where no person could ever have access to it, then no fencing would be required, because no danger could possibly arise. But where moving parts are situated in such a position that workmen might approach and might be damaged by such moving parts, then those parts must be fenced..
12. The evidence of Sri S. K. Sinha and Sri B. E. Dutta makes it quite clear that there were a number of portions of this machinery that were not fenced. They were moving portions and according to the evidence of Sri 8. K. Sinha Iho8e portions were in positions accessible to the workmen and in his view constituted a real clinger to workmen moving about in the vicinity. I do not think that the evidence of Sri S. K. Sinha corroborated as it is to some extent by the evidence of Sri B. K. Dutta is Shaken in any way by the evidence called on behalf of the defence. It seems to me clear that in this factor} there were a number of moving parts which were unfenced and which were a source of danger to workmen.
13. It is to be observed that the Inspector had previously called attention to these defects, but nothing had been done. It is true that no accident was proved to have been caused as a result of the unfenced nature of this machinery, but that cannot affect the question. Even where machinery in unfenced it would not necessarily cause damage, if workmen were careful. How. ever, unfenced machinery is always a source of danger to careless or thoughtless workmen and a proof of accident is not necessary to maintain a conviction Under Section 24, Factories Act.
14. It appears to me that upon the evidence a clear offence Under Section 24 was made out, pro. vided always the prosecution was properly launched.
15. As I have already stated, the learned Magistrate was of opinion that as the prosecution had not been launched or had not been sanctioned by the Chief Inspector the prosecution was bound to fail.
16. Section 74(1), Factories Act, provides that no prosecution under the Act, except a prosecution Under Section 66, could be instituted except by or with the previous sanction of the Inspector. Section 66 is the section which deals with smoking or using a naked light in the vicinity of any inflammable material in a factory and that section is not relevant in this case. It is clear from the terms of Section 74(1) that this particular prosecution could only succeed if it had been instituted by or with a previous sanction of the Inspector. The learned Magistrate construes the word 'Inspeotor1 in this subjection as meaning the Chief Inspector,
17. Section 10, Factories Act, deals with the appointment of Inspectors and the Chief Inspector. Sub-section (1) of Section 10 provides:
The Provincial Government may, by notification in the official gazette, appoint such persons as it thinks fit to be Inspectors for the purposes of this Act within such local limits as it my assign to them respectively.
Sub-section (a) provides:
The Provincial Government may, by notification as aforesaid, appoint any person to be a Chief Inspector, who shall, in addition to the powers conferred on a Chief Inspector under this Act, exercise the powers of an Inspector throughout the province.
18. It will be seen, therefore, that this section deals with two classes of officials, Inspectors and the Chief Inspector. An Inspector is a per-son appointed by the Provincial Government to carry out the purposes of the Act within certain local limits. The Chief Inspector is the head of the inspecting department and amongst other powers he can exercise the powers of an Inspector throughout the province. It is clear therefore that the term 'Inspector' and the term ' Chief Inspector ' in this Act have definite and different meanings. That being so I cannot understand how the learned Magistrate could construe the word ' Inspector' in Section 74 as 'Chief Inspector'. A word or term in a statute must bear the same meaning throughout the statute and when the term 'Inspector' is used in a section it means inspector as defined in the statute. The difficulty appears io have been caused by the fact that Section 74 requires the prosecution to be instituted by or previously sanctioned by the Inspector not by an Inspector. Section 74 contemplates a particular Inspector being empowered to prosecute or to give previous sanction for the prosecution. However, it is clear that the term 'the Inspector' is used because of the provisions of Section 10(1) of the Act. That Sub-section, as I have already stated, empowers the Provincial Government to appoint Inspectors to act within certain limits and obviously the phrase 'the Inspector' in Section 74, Sub-section (1) of the Act means the particular Inspector appointed to carry out the purposes of the Act in the area in which an offence is said to have been committed. In the case before us there was only one person who could institute the prosecution or grant previous sanction for it, namely, the Inspector exercising jurisdiction over the area in which the respondents' factory was situate. The Inspector is admittedly Sri S. K. Sinha and the evidence clearly shows that it was he who instituted the prosecution and therefore the provisions of Section 74(1) were strictly complied with.
19. Mr. Sudhansu Sethar Mukherjee on be. half of the respondents attempted to argue that the previous sanction of the Inspector was always required and there was no such previous sanction here. Mr. Mookerjee had overlooked, however, the terms of 8. 74 (1); that requires that the prosecution shall be instituted by the Inspector or if not instituted by him it must be instituted after his previous sanction is obtained. The previous sanction of the Inspector is only necessary if the Inspector himself does not insecure the proceedings.
20. Mr. Mukherjee then argued that no notice was served on the manager of this factory of the defects complained of as required by 24 (2) of the Act. That Sub-section is in these terms:
If it appears to The Inspector that any other part if the machinery in a factory is dangerous if not 'and quietly fenced, he may serve on the manager of the factory an order in writing, specifying the measures which in his opinion should be adopted, and requiring hem to be carried out before a specified date.
21. Mr. Mukherjee then referred us to Section 8X (if the Act which allows a manager of a factory on whom an order in writing by an Inspector has been served Under Section 24(2) to appeal to the I Provincial Government or to such authority as the Provincial Government may appoint. He complained that as he had had no notice of these defeats he had not been given an opportunity to appeal. Again, the precise terms of Sub-section (2)(f S, 24 were not appreciated. Sub-section (1) of El. 24 deals with parts which have to be adequately fenced. Sub-section (2) in terms deals with (ther parts, that is, parts not covered by Section 24, no-s. (1) and the rules made thereunder. The complaint in this case was that parts were tmfenced which required fencing Under Section 24(1)(3) and Rule 24, Bengal Factories Rules. Sub-section (2) had no application whatsoever to this case and therefore there was no substance in Mr. Mukherjee's contention.
22. In my view the prosecution here was properly instituted by the Inspector who was S. K. Sinha as required by Section 74(1) of the to The Magistrate was, in my view, clearly wrong in dismissing the complaint upon that ground.
23. As I have said the learned Magistrate did of deal with the merits of the case in any detail, and Mr. Mukherjee has urged that we should Band this case back so that the learned Magistrate could express his views upon the evidence. Hhere is no certainty that this case would ever to heard again by the same learned Magistrate end all he could do would be to express a view on the evidence which has already been taken. IE on the merits the Magistrate had acquitted we could in this appeal reverse his decision and convict, I think it is clear that we can also convict where he has not gone to the length of acquitting on the merits but merely refrained from deciding on the merits. This is an appeal against an acquittal and in such appeals in a I roper case this Court can set aside the order c t acquittal and convict the respondent or res-Jon dents concerned.
24. I have already dealt with the evidence and it appears to me that it was abundantly proved that there were moving parts of machinery in this factory which should have been fenced under the provisions of Rule 24 (1)(o), Factories Act, and H. 21, Bengal Factories Rules. A clear case was established and further it is clear that these breaches had previously been brought to the notice of the respondents and that they had failed to do anything respecting the same. In my view both the respondents were clearly guilty of the offence charged and that being so the order of acquittal must be set aside and both the respondents must be convicted Under Section 24(1) read with Section 60 of the Act.
25. The offence i3 a serious one and deserves a substantial Sentence. However, I cannot overlook the fact that the respondents were acquitted in the first instance and they are now convicted after a considerable lapse of time, and that being so I am inclined to take a more lenient view than I would otherwise have done. In my view a fine of BSection 100 will be sufficient to meet the ends of justice in each case, and if the fines be not paid the respondents will undergo one month's simple imprisonment each.
26. The result, therefore, is that this appeal is allowed, the order of acquittal is set aside and each respondent is convicted of an offence Under Section 24(1)(c) read with Section 60, Factories ActEach respondent is sentenced to pay a fine of ESection 100 and in default of payment each will undergo one month's simple imprisonment.
S. R. Das J.
27. I agree.