minal Appeal No 174 of 1956
Appeal by special leave from the judgment and order dated the April 15 1955 of the Bombay High Court in Criminal Revision Application No 392 of 1955 arising out of the judgment and order dated December 14 1954 of the Presidency Magistrate 15th Court Mazagaon Bombay in Case No 532S of 1953
E B Ghasvala and I N Shroff for the appellant
C B Aggarwala J B Dadachanji section N Andley and Rameshwar Nath for respondent No 1
H J Umrigar R H Dhebar and T M Sen for respondent No 2
95 750 1959
September 15
The Judgment of the Court was delivered by IMAM J
A complaint was filed by the appellant on the 4th of December 1953 against the respondent Agbotwala and one Phirozbai Mazarkhan under sections 385 389 and 50034 and 109 of the Indian Penal Code in the Presidency Magistrate s 15th Court Mazagoan Bombay
The accused were summoned
As the accused Phirozbai Mazarkhan could not be produced the trial produced against the respondent Agbotwala hereinafter referred to as the respondent only
The Presidency Magistrate was not satisfied on the evidence that the respondent and Phirozbai Mazarkhan had conspired either to defame the appellant or to extort money from him
He also held that there was no evidence to show that the respondent knew that Phirozbai Mazarkhan was committing on offence
Accordingly he declined to frame a charge under sections 385 and 389134 and 109 of the Indian Penal Code
The Presidency Magistrate however framed a charge under section 500 IPC against the respondent who pleaded not guilty
He was of the opinion after the consideration of the evidence that the respondent had on the 13th of October 1952 uttered before Mr Parab an advocate the defamatory words with which be was charged
He was further of the opinion that section 198 of the Code of Criminal Procedure stood in the way of his taking cognizance
Although the complaint had been made by the person aggrieved there was no mention therein of the facts which formed the subject matter of the offence with which the respondent had been charged
The complainant namely the appellant not having mentioned the facts which constituted the offence with which the respondent had been charged the charge had been wrongly framed
The Presidency Magistrate was of the opinion that a complaint should have been filed in respect of the offence with which the respondent had been charged
As that had not been done in the recent case the charge had been wrongly framed
He accordingly acquitted the respondent
Against the decision of the Presidency Magistrate an application in revision was filed by the appellant in 751 the High Court of Bombay which was dismissed with the remark Rejected as no offence
Thereafter the appellant obtained special leave from this Court to appeal against the decision of the High Court
When the appellant filed his complaint before the Presidency Magistrate he referred to the nature of the defamatory statement made by Phirozbai Mazarkhan which was contained is the notice sent to him by Mr N K Parab on behalf of his client Phirozbai Mazarkhan
After giving good many details of the correspondence which ensued thereon he referred to the part played by the respondent in paragraphs 19 to 24 of the complaint
Whatever was alleged by the appellant was the result of knowledge obtained after enquiries
The most important of these paragraphs so far as the respondent is concerned is paragraph 22 which is as follows  I have also come to know as a result of my enquiries that Accused No 2 was seen on occasions and at the relevant time going to the office of the said advocate Mr Parab at Mazagoan with a woman
My enquiries further revealed that Accused No 2 was in fact instrumental in connection with the aforesaid correspondence and filing a complaint and that though in fact the complaint was filed in the name of Accused No 1 Accused No 2 was the real person behind it
 The appellant then finally alleged that Phirozbai Mazarkhan and the respondent had conspired together and in furtherance of their common intention attempted to put him in fear of injury in body and reputation and in property and that they did so with the object of committing extortion
He accordingly asserted that the accused had committed offences under sections 385 389 and 50034 and 109 of the Indian Penal Code
At the trial the charge which had been framed against the respondent was as follows  I H G Mahimtura Presidency Magistrate hereby charge you Mohomed Haji Ahmed Agbotwala as follows   That you on or about 13 10 52 at Bombay defamed Abdul Rehman Mohamed Yusuf by making 752 or publishing to witness NK
Parab certain imputations concerning the said Abdul Rehman to wit that a woman named Phirozbai Mazarkhan was in his keeping that he had promised to marry her but did not keep his promise and that he cheated her of her ornaments worth about Rs 30000 by means of spoken words intending to harm or knowing or having reason to believe that such amputations would harm the reputation of the said Abdul Rehman and you thereby committed an offence punishable under section 500 of the Indian Penal Code and within my cognizance
 And I hereby direct that you be tried on the said charge  Charge explained
 Accused pleads not guilty
 It will be noticed that this charge asserts that the respondent had uttered defamatory words to the advocate N K Parab
It had not been asserted as a fact in the complaint that the respondent had uttered any defamatory words to Mr Parab
The utmost which had been asserted therein against the respondent was that he was instrumental in connection with the correspondence that ensued between the advocate Parab and himself and in the filing of the complaint by Phirozbai Mazarkhan against the appellant
It was urged on behalf of the appellant that the Presidency Magistrate having found that the respondent had uttered the words mentioned in the charge to the advocate Parab he should not have acquitted the respondent as section 198 of the Code of Criminal Procedure was no real impediment in the way of the Presidency Magistrate
He had taken cognizance of an offence under section 50034 and 109 of the Indian Penal Code on the complaint filed by the appellant
If at the trial it appeared that an offence under section 500 only had been committed it was open to the Presidency Magistrate to take cognizance of that offence without the necessity of a separate complaint in respect thereof
It was also urged that if the complaint was read as a whole it indicated that the respondent must have uttered the words the subject matter of the charge 753 and that those words were not uttered to Mr Parab by Phirozbai Mazarkhan only
Finally it was suggested that even if it be assumed that for the charge framed a separate complaint should have been filed and no cognizance could be taken for the offence charged in view of section 198 of the Code of Criminal Procedure and that the Presidency Magistrate was right in his opinion that he had wrongly framed such a charge it was his duty to make a reference to the High Court for the cancellation of the charge
The Presidency Magistrate acted without jurisdiction in proceeding further with the case and recording an order of acquittal on the ground that a complaint stating the facts upon which the present charge could have been framed had not been filed
On behalf of the respondent it was urged that the Presidency Magistrate correctly acquitted the respondent as there was no complaint for the offence as charged and section 198 of the Code of Criminal Procedure prohibited him from taking cognizance of the offence mentioned in the charge
It was pointed out that the offence of defamation could be committed on several occasions
The charge as framed referred to the defamatory words alleged to have been uttered by the respondent to Mr Parab
This was a separate offence though of the same kind from the offence mentioned in the complaint
It was further pointed out that although the Presidency Magistrate had expressed the opinion that the respondent had uttered the defamatory words charged to Mr Parab he had given no grounds upon which he came to this conclusion
If the entire evidence and the attending circumstances were taken into consideration it was clear that the evidence of Parab could not be believed
Even if it be assumed that the Presidency Magistrate wrongly acquitted the accused this was not a case in which the order of acquittal should be set aside
The submissions made on behalf of the appellant and the respondent were advanced with skill and elaborate arguments were urged in support of the respective contentions
754 It seems to us that on the findings of the Presidency Magistrate he could not have recorded an order of acquittal
The complaint as filed was not with reference to any alleged defamatory words uttered by the respondent to Mr Parab
Although the Presidency Magistrate believed the evidence of Mr Parab he was of the opinion that he wrongly framed the charge as the complaint did not state the facts which constituted the offence with which the respondent had been charged
In such a situation the Presidency Magistrate instead of proceeding to record an order of acquittal should have brought the matter to the notice of the High Court so that the error might be corrected
As the matter is before us in appeal we can do that which the High Court could have done
In our opinion the offence charged was a separate offence although of the same kind from the offence in respect of which the facts has been stated in the complaint
For this separate offence a complaint should have been filed and the provisions of section 198 of the Code of Criminal Procedure complied with
In our opinion the provisions of that section are mandatory
Even in section 238 of the Code of Criminal Procedure the importance of the provisions of section 198 or section 199 of the Code is emphasised
3 of this section specifically states that the provisions of this section do not authorise the conviction of an offence referred to in section 198 or 199 when no complaint has been made as required by these sections
The Presidency Magistrate wrongly framed the charge as on the record when in respect of the offence charged there was no complaint filed and the facts as stated in the complaint actually filed did not make out the offence as charged
It is clear from the findings of the Presidency Magistrate that the offence of conspiracy and abatement as alleged in the complaint actually filed had not been established
He should have then discharged the accused and refrained from framing a charge for an offence in respect of which there was no complaint before him as required by section 198 of the Code of Criminal Procedure
He had no jurisdiction to frame the charge he had framed
His order of acquittal therefore must be regarded as a nullity
755 In this appeal this Court can do what the High Court could have done
We accordingly allow the appeal and set aside the order of acquittal made by the Presidency Magistrate but on the finding of the Presidency Magistrate that no offence of conspiracy or abetment arising therefrom bad been established we direct that the present complaint be dismissed
The respondent is accordingly discharged
Appeal allowed


Summary:
The cement factory in question which is in the State of Bihar belonged to the appellant company and a limestone quarry owned by the same company As situate about a mile and a half from the factory
Limestone being the principal rawmaterial for the manufacture of cement the factory depended exclusively for the supply of limestone on the said quarry
On behalf of the labourers in the limestone quarry certain demands were made on the management of the company but as they were rejected they went on strike and on account of the non supply of limestone due to the strike the management had to close down certain sections of the factory and to lay off the workers not required during the period of closure of the sections concerned
Subsequently after the dispute between the management and the workers of the limestone quarry was settled and the strike came to an end a demand was made on behalf of the workers of the factory who had been laid off during the strike for payment of lay off compensation under section 25C of the  but the management refused the demand relying on cl
iii to section 25E of the Act which provided that  no compensation shall be paid to a workman who had been laid off   if such laying off is due to strike  on the part of workmen in another part of the establishment 
The Industrial Tribunal took the view that the limestone quarry was not part of the establishment of the cement factory and that the workmen in the latter were not disentitled to lay off compensation by reason of Cl
iii of section 25E of the Act
The appellant company appealed by special leave to the Supreme Court and contended that the decision of the Tribunal was erroneous because the facts of the case showed a that in respect of both the factory and the limestone quarry there was unity of ownership unity of management supervision and control unity of finance and employment unity 704 of labour and conditions of service of workmen functional integrality general unity of purpose and geographical proximity and b that the strike was decided on by the same Workers  Union which consisted of the workmen at the factory and the quarry
It was contended for the respondents inter alia 1 that the conclusion of the Industrial Tribunal that the factory and the limestone quarry are not parts of one establishment is a finding of fact which should not be disturbed in an appeal by special leave 2 that the effect of the Explanation to section 25A of the Act is to negative the idea of a factory and a mine forming parts of one establishment and 3 that since in the matter of reference of industrial disputes the Act gives jurisdiction to two distinct authorities the Central Government in respect of the limestone quarry and the State Government in respect of the factory the two units the factory and mine cannot be treated as one establishment
Held 1 that the question whether the factory and the limestone quarry form one establishment depends upon the true scope and effect of the expression in another part of the establishment in cliiiof section 25E of the  and involves a consideration of the tests which should be applied in determining whether a particular unit is part of a bigger establishment and though for that purpose certain preliminary facts must be found the final conclusion to be drawn therefrom is not a mere question of fact  2 that the true scope and effect of the Explanation to section 25A of the Act is that it explains what categories factory mine or plantation come within the meaning of the expression  industrial establishment  it does not deal with the question as to what constitutes one establishment and lays down no tests for determining that question 3 that existence of two jurisdictions does not necessarily imply that for all purposes of the Act and particularly for payment of unemployment compensation the factory and quarry must be treated as separate establishments  and 4 that on the facts of the present case the limestone quarry and the factory constituted one establishment within the meaning of cl
iii of section 25E of the Act and that the workmen at the factory were not entitled to claim lay off compensation