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PETITIONER: P.   D. JAMBEKAR

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT25/10/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN KHANNA, HANS RAJ

CITATION:  1973 AIR  309            1973 SCR  (2) 714  1973 SCC  (3) 524

ACT: Factories  Act, 1948, s. 106--Knowledge of accident  without ingredients  of  offence--If  ’Knowledge  of  commission  of offence’.

HEADNOTE: On  February 27, 1968, a worker in the  appellant’s  factory sustained an injury and a report of the accident was sent to the  Inspector  of  Factories on February  28.   The  report indicated  that the accident took place when the worker  was cleaning  a dangerous part of machinery and that, that  part of  the  machinery was moved by mechanical power.   But  the report  did  not  state  that the  dangerous  parts  of  the machinery were not in such position or of such  construction as  to  be safe to every person employed in the  factory  as they  would  be  if they were securely fenced,  nor  was  it stated  that  dangerous  parts of  the  machinery  were  not securely fenced by safeguards of substantial construction or that  they were not kept in position while the parts of  the machinery they were fencing, were in motion or in use.   The Inspector  inquired into the accident on July 30,  1968  and filed a complaint for an offence under s. 21 (iv) (c) of the Factories  Act,  1948.   The appellant  contended  that  the prosecution  was  barred by time under s. 106  of  the  Act, which  provides that no Court shall take cognizance  of  any offence  punishable  under  the  Act  unless  the  complaint thereof  is  made within 3 months of the date on  which  the alleged  commission of the offence came to the knowledge  of the Inspector.  The Magistrate dismissed the complaint,  but the  High Court set aside the order, on the ground that  the Inspector  got  knowledge of the commission of  Pin  offence only on the date of the enquiry and not from the report. Dismissing the appeal to this Court, HELD  : (1) It would be difficult for any. one  reading  the report  of  the accident to come to the conclusion  that  an offence  under s. 21 (i) (iv) (c) had been committed, as  it did  not reveal the necessary elements that  constitute  the offence.   Knowledge of the accident is not knowledge of  an offence,   and  the  Inspector  gained  knowledge   of   the commission of the offence only on July 30, 1968 when he made the enquiry. [717C-E] (2)In interpreting a provision in a statute prescribing  a

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period of limitation for instituting a proceeding, questions of  equity and hardship are out of place.  As s.  106  makes the  date of knowledge of the commission of the offence  the starting point of the period of limitation, it is  difficult to  read  the section so as to make the date  on  which  the Inspector  would or ought to have acquired knowledge of  the commission  of  the  offence,  bad  he  been  diligent,  the starting  point  of limitation especially when  the  statute does  not  provide for an inquiry into the accident  or  the period  within  which the inquiry has to be  made.  [718A-B; 719-D-E] Nagendra  Nath v. Suresh Chandra, (1932) 60 Cal. 1, 6  (PC), Magbul  Ahmed v. Pratap Narain (1935) 57 All. 242  (PC)  and State v. Keshavlal.  A.I.R. 1958 Bombay 243 referred to.

JUDGMENT: CRIMINAI, APPELLATE JURISDICTION : Cr.  A. No. 91 of 1970. 715 Appeal  by special leave from the judgment and  order  dated August  25, 1969 of the Gujarat High Court at  Ahmedabad  in Cr. R. A. No. 244 of 1969. S.T. Desai and N. N. Keswani, for the appellant. S.   K. Dholakia and B. D. Sharma, for the respondent. The Judgment of the Court was delivered MATHEW,  J.-This  is  an appeal by Special  Leave  from  the judgment  of  the  High Court of  Gujarat  at  Ahmedabad  in Criminal  Revision  Application  No. 244 of  1969.   By  the judgment  the  High Court set aside the order of  the  Chief City Magistrate,, Ahmedabad, dismissing the complaint  filed by  the Inspector of Factories against the Manager  of  Arun Mills  Ltd.,  the  appellant here, on the  ground  that  the prosecution was barred by time. The facts of the case lie in a narrow compass.  One Chandra- kant  Jethalal  was a worker in the factory in  question  of which the appellant was the Manager.  On February 27,  1968, the worker while cleaning the clip stentering machine with a rag  near the delivery-side slipped when the machine was  in motion, and while trying to save himself, his right hand was trapped into the bevel gears of the stentering machine.  The bevel  gears were at a height of three feet from the  ground floor and are dangerous parts of the stentering machine  and were not safe by position and construction.  As a result  of the  injury his fingers had to be amputated.  In respect  of this accident, the Inspector of factories received a  report from  the  concerned authority on February  28,  1968.   The Inspector visited the factory on 30-7-68 and made an enquiry into the accident.  Thereafter he filed the complaint on 20- 9-68 for an offence punishable under s. 92 of the  Factories Act.  1948 (hereinafter called the Act).  On behalf  of  the accused   a  preliminary  objection  was  taken   that   the prosecution was barred by time in view of- the provisions of s.106  of  the Act which provides that no Court  shall  take cognizance  of any offence punishable under the  Act  unless complaint thereof is made within three months of the date on which  the  alleged commission of the offence  came  to  the knowledge  of an Inspector.  The Magistrate found  that  the report  conveyed knowledge of the commission of  an  offence and that the Inspector came to know about the commission  of the  offence on the date the report was received by him  and therefore the complaint was barred by time.  It was  against this  order that the revision application was  filed  before the High Court.  The High Court came to the conclusion  that the Inspector did not get any knowledge of the commission of

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an offence under the Act from the report, and as he got  the knowledge of the commission of the offence only on the  date of the enquiry, the complaint was filed within time. 716 So,  the  main question in this case is  whether  the  facts mentioned  in  the  report were  sufficient  to  convey  the knowledge  of  the commission of an offence under  the  Act. There  is no controversy here that the offence committed  if any,  is  one  under clause (iv)(c) of  sub-section  (1)  of Section  21  of  the Act.   Section  21(1)(iv)(c)  reads  as follows:--               "Unless  they are in such position or of  such               construction  as  to be safe to  every  person               employed  in the factory as they would  be  if               they  were  securely  fenced,  the  following,               namely,--               (a)   every  part of an electric generator,  a               motor or rotary convertor;               (b)   every  part of  transmission  machinery;               and               (c)   every   dangerous  part  of  any   other               machinery, shall  be  securely  fenced  by  safeguards  of  substantial construction which shall be kept in position while the parts of machinery they are fencing are in motion or in use:" A  plain reading of section 21 (1) (iv) (c)  would  indicate that  every dangerous part of any other machinery  shall  be securely  fenced  by safeguard of  substantial  construction which shall be kept in position while the parts of machinery they  are fencing are in motion or in use and that is to  be done   unless  they  are  in  such  position  or   of   such construction  as to be safe to every person employed in  the factory  as they would be if they were securely fenced.   In other  words, if those dangerous parts are in such  position or  are of such construction as to be safe to  every  person employed,  the question of securely fencing by safeguard  of substantial  construction  and of keeping them  in  position while the parts of machinery they are fencing are in  motion or  in  use  will not arise.  The question  is  whether  the report  revealed  all  the necessary  elements  that  go  to constitute the offence. The report was in Form No. 21, as prescribed under Rule  103 of  the  Act.   In column 9(a) of the report  which  is  the column  regarding "cause or nature of accident of  dangerous occurrence", the facts stated in answer are, "While cleaning the  clip stenter machine with a rag in his right hand  near the  bevel gears the rag and the right palm  slipped  inside the  gear and crushed the whole palm with five fingers."  In column  9(b)(i)  which is the column headed  "If  caused  by machinery,  give  name  of  machine  and  part  causing  the accident", the facts stated are, "bevel gear of clip stenter driving  the chain." In column 9(b)(ii) which is the  column "State  whet-her  it was moved by mechanical  power  at  the time"  the fact stated was, ’mechanical" and in column  9(c) which states "state exactly what injured person was doing at the time." the answer given was, "cleaning the clip  stenter machine". 717 The statements in the report only indicated that an accident has  taken  place to the Worker who was  cleaning  the  clip stenter machine with a rag in his right hand near the  level gear, which is a dangerous part of machinery and the rag and the  right palm slipped inside the gear and whole palm  with five  fingers was crushed.  It also indicated that the  part of  the  machinery  was moved by mechanical  power  and  the

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accident  took place when the worker was cleaning  the  clip stentering  machine.   The  report did not  state  that  the dangerous  parts of the machinery were not in such  position or  of  such  construction as to be  safe  to  every  person employed  in  the  factory as they would  be  if  they  were securely fenced.  Nor was it stated that dangerous parts  of this  machinery  were not securely fenced by  safeguards  of substantial  construction  or  that they were  not  kept  in position while the parts of the machinery they were fencing, were in motion or in use.  It would be difficult for any one reading the report to come to the conclusion that an offence under  s.  21  (1) (iv) (c) has been  committed.   When  the Inspector was examined in the case, he categorically  stated that  the  report  did not convey to him  any  knowledge  as regards the commission of the offence.  We do not, say  that the  statement of the Inspector in his evidence that he  did not acquire knowledge of the commission of the offence  till he  made the inquiry is conclusive.  But we think  that  his evidence  read in the light of the report can only  lead  to the  conclusion  that  the Inspector  did  not  acquire  the knowledge of the commission of the offence when the received the  report.  We, therefore, accept the finding of the  High Court  that the Inspector did not acquire knowledge  of  the commission of the offence from the report and that he gained the knowledge of the commission of the offence only on  30th July 1968. It  was  argued  on behalf of the appellant  that  when  the report  conveyed  the information about  the  accident,  the Inspector  should  have  enquired into  it  with  reasonable promptness  and as s. 106 prescribes a period of only  three months, from the date of the knowledge of the commission  of the offence, for filing a complaint, the Inspector ought not have waited for a period of 6 months for making the inquiry. It  was argued that if an Inspector were to come to know  of an  accident, he cannot wait till such time as he choose  to make  the inquiry and then say that he came to know  of  the commission  of an offence under the Act as a result  of  the inquiry and thus postpone at his whim the starting point  of limitation.  There can be no doubt that it the Inspector had conducted the inquiry earlier, he would have come to know of the  commission of the offence earlier.  But  our  attention was  not  drawn  to any provision in the Act  or  the  rules framed under the Act which obliged the Inspector to  conduct an inquiry within any specified 718 period  after the receipt of the report into the  cause  ’of accident.   And  in interpreting a provision  in  a  statute prescribing  a  period of limitation for  institution  of  a proceeding,  questions  of equity and hardship  are  out  of place.   See the decisions of the Privy Council in  Nagendra Nath v. Suresh Chandra(1) and Magbul Ahmed v. Pratap  Narain (2)  We have to go by the clear wording of the section,  and the  date  of  knowledge of the commission  of  the  alleged offence alone is made the starting point of limitation. In  State v. Keshavlal,(3) Mudholkar, J. had to deal with  a similar  question.   No  doubt, he was  concerned  with  the interpretation of section 23(2) and section 79 of the Mining Act, 1952.  Section 79 of the Mining Act provides:-               "No court shall take cognizance of any offence               under  this Act, unless complaint thereof  has               been made.               (i).................               (ii)  within  six months of the date on  which               alleged commission of the offence came to  the               knowledge of the Inspector."

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Section  23(2)  states that when a notice given  under  sub- section (1) relates to an accident causing loss of life, the authority  shall make an inquiry into the occurrence  within two  months of the receipt of the notice.  It was  contended on  behalf of the State in that case that the commission  of the  offence  came to the knowledge of  the  Inspector  only after  the completion of the inquiry and that the  complaint having been made within, six months of the completion of the inquiry,  was  within  time.   On the  other  hand,  it  was contended  for the accused that where the knowledge  of  the commission of an offence was dependent upon the result of an inquiry,  such inquiry must necessarily be commenced  within two  months  of the date of intimation of the  accident  and that the period of two months cannot be extended by delaying the inquiry.  ’Dealing with the question, the learned Judge. said :-               "It  was  then  said that had  an  inquiry  be               instituted  earlier, the Inspector would  have               come to know of the breach in question earlier               and  so  limitation  must be  deemed  to  have               started running from the date of the notice of               the accident or at most from the expiry of two               months  of  the giving of the notice.   It  is               common   ground  that  the  knowledge  of   an               accident   is  not  the  same  thing  as   the               knowledge of an "offence", that is of a breach               which  is made penal.  Therefore, the date  of               notice of the accident can in no  circumstance               be regarded as a starting               (1)  1932, 60 Cal. 1 (6 PC) (2) 1935, 57  All.               242 (PC).                        (3) A.I.R. 1958 Bombay 243.,               719               point for the commencement of limitation.  The               expiry  of two months from the date of  notice               cannot,  for the same reason be regarded as  a               starting point of limitation."               "No  doubt, had the inquiry been made  earlier               the  fact of the commission of the  breach  or               offence  would have come to the  knowledge  of               the  Inspector earlier.  But section  79  (ii)               does  not  say  that  the  date  on  which  an               Inspector  would  or ought  to  have  acquired               knowledge of the commission of an offence  had               he been diligent or had he complied faithfully               with the provisions of the Act, would also  be               a  starting  point  of  limitation.   In   the               circumstances, therefore, the delay in  making               the  inquiry however irregular  or  deplorable               cannot affect the question of limitation." As Section 106 makes the date of knowledge of the commission of  the  offence  the  starting  point  of  the  period   of limitation,  we find it difficult to read the section so  as to  make the date on which the Inspector would or  ought  to have acquired knowledge of the commission of the offence had he   been  diligent,  the  starting  point   of   limitation especially where, as here, the statute does not provide  for an  inquiry into the accident, much less the  period  within which  the  inquiry  has  to be made.  It  is  only  in  the jurisprudence of Humpty Dumpty that we can equate the  "date on  which  the alleged offence came to the knowledge  of  an Inspector" with the date on which the alleged offence  ought to have come to his knowledge.  We think that the High Court was right in its conclusion. We therefore, dismiss the appeal.

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V.P.S.                        Appeal dismissed. 11-L499Sup.C.I./73 720