minal Appeal No 193 of 1961
Appeal by special leave from the judgment and order dated February 9 and 10 1961 of the Gujarat High Court in Criminal Appeal No 367 of 1960
DR Prem KL Hathi and RH Dhebar
for the appellant
The respondent did not appear
December 6 1963
The Judgment of the Court was delivered by 1SC164 51 802 SARKAR J
This appeal raises a question under the 
It was unfortunate that there was no appearance on behalf of the respondent but Mr Prem appearing in support of the appeal has placed the matter very fairly before us with all the relevant reported decisions from the point of view of both the appellant and the respondent
We are much beholden to him for this assistance
The respondent is the Manager of an oil mill
The mill had a spur gear wheel
A workman of the mill while greasing the spur gear wheel which was then in motion had one of his hands caught in it
Eventually that hand had to be amputated
It appeared that the spur gear wheel bad a cover which had bolts for fixing it to the base but at the time of the accident the cover was not there having apparently been removed earlier
There is no evidence to show when it was last in position
The respondent was prosecuted under section 92 of the Act for having failed to comply with section 211 iv c
The relevant part of this section is as follows section 21
1 In every factory the following namely             iv 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       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 Section 92 of the Act provides as follows 803 section 92
Save as is otherwise expressly provided in this Act if in or in respect of any factory there is any contravention of any of the provisions of this Act the occupier or manager of the factory shall be guilty of an offence and punishable with imprisonment or with fine There is no dispute that a guard had been put over the spur gear wheel and it was a proper guard
It is not contended that if it had been there then the respondent could be said
to have committed any offence but it was not there
The workman said that it had been removed by the respondent for repairs while the case of the respondent was that the workman had himself removed it
The learned trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone without his consent or knowledge
The learned Judges of the High Court when the matter came to them in appeal referred to a very large number of cases mostly of the English Courts under the English and a few of our High Courts and from them they deduced the two following principles 1 Though the obligation to safeguard is absolute under section 211ivc of the Indian Act yet it is qualified by the test of foreseeability and 2 If the Safeguard provided by the employer or manager is rendered nugatory by an unreasonable or perverted act on the part of the workman there is no liability of the employer or manager
With great respect to the learned Judges of the High Court we are unable to appreciate the relevancy of these two principles to the decision of the case in hand
Nor does it seem to us that the learned Judges of the High Court rested their judgment on any of these principles
We therefore think it unnecessary to notice the cases mentioned in the judgment of the High Court or discuss the principles to be deduced from them
804 As the High Court stated there is no dispute that the spur gear wheel was a dangerous machine within the meaning of section 211ivc
That being so clearly there was an obligation to securely fence it and to see that the fence was kept in position while the parts of machinery they are fencing are in motion or in use
Indeed the fact that the respondent had provided the guard over the machine puts it beyond doubt as the High Court observed that the machine was dangerous within the meaning of the section
It was not contended that the risk from the unguarded machine was not a foreseeable risk
No question of the risk not being foreseeable therefore arises in this case nor is this put up by way of a defence
The High Court proceeded on the assumption that it had not been proved that the workman had himself removed the guard
We will also proceed on that assumption
The High Court held that in a criminal case an accused was not bound to offer any explanation and if he did and that explanation was not established that would not justify his conviction for the offence with which he was charged
This is a proposition which it is unnecessary to dispute in the present case
The High Court then observed that section 211ivc of the Act contemplated a default and that default had to be established by the prosecution
It lastly said that there was nothing in the Act to indicate that the legislature intended that an occupier or manager must always be on the look out to bring to book every offender who removed the safeguard furnished by him or that a failure on his part to do so must entail his conviction
It also observed that the statute did not require that where the occupier or manager had carried out his obligation under the section by providing a proper safeguard he would be liable if someone else not known to him removed it without his knowledge consent or connivance
It therefore held that as in the present case it could not be said that either he or the workman had removed the guard it followed that someone whom the occupier or the manager could not fix 805 upon had removed it and that was something which the occupier or manager could not reasonably be expected to anticipate and he could not be made liable for such removal
We are unable to accept this view of the matter
No doubt the default on the part of the person accused has to be established by the prosecution before there can be a conviction
It has to be observed that section 21 1ivc requires not only that the dangerous part of a machine shall be securely fenced by safeguards but also that the safeguards shall be kept in position while the parts of the machinery they are fencing are in motion or in use
We should have thought that the words shall be securely fenced suggest that the fencing should always be there
The statute has however put the matter beyond doubt by expressly saying that the fencing shall be kept in position while the machine is working
That is the default that has happened here the fencing was not there when the machine had been made to work
This is an admitted fact and no question of establishing it arises
Does the mere fact that someone else had removed the safeguard without the knowledge consent of connivance of the occupier or manager always provide a defence to him We do not think so
When the statute says that it will be his duty to keep the guard in position when the machine is working and when it appears that he has not done so it will be for him to establish that notwithstanding this tie was not liable
It is not necessary for us to say that in every case where it is proved that the manager or occupier had provided the necessary fence or guard but at a particular moment it appeared that the fence or guard had been removed he must be held liable
Suppose the fence for some reason for which the manager or occupier is not responsible suddenly breaks down and the machine remains unfenced for sometime before the owner or occupier found that out and replaced the fence
It may be that in such a case he cannot be made liable
A statute does 806 not of course require an impossibility of a person
But there is nothing to show that is the case here
The respondent has given no evidence whatever to show what he had done to carry out his duty to see that the guard was kept in position when the machine was working
The onus to prove that was on him because his defence depended on it
He has completely failed to discharge that onus
We therefore think that he is liable under section 92 of the Act for having failed to carry out the terms of section 211iv
Section 101 of the Act was referred to as supporting the contention that the liability of an occupier or manager for failure to observe the terms of the Act was absolute and the only defence available to him was that provided by it
In our view it is unnecessary to deal with that question
It does not arise in the present case for we find that the respondent had offered no defence whatever whether under section 101 or otherwise
His only point was that he did not know what happened to the guard and that in our opinion is no defence at all
We wish however to refer to the section for another purpose
The section states that where an occupier or manager of a factory is charged with an offence punishable under this Act he shall be entitled to have any other person whom he charges as the actual offender brought before the Court and if he proves to the satisfaction of the Court a that he used due diligence to enforce the execution of the Act and b that the said other person committed the offence in question without his knowledge consent or connivance then that other person shall be convicted of the offence and the occupier or the manager shall be discharged
It will appear therefore that even where the occupier or manager proves that somebody else has removed the fencing without his knowledge consent or connivance that alone would not exempt him from liability but he has further to prove that he had used due diligence to enforce the execution of the Act which can only mean in a case like the present that he exercised due diligence 807 to see that the fence which under the Act it was his duty to see was kept in position all along had not been removed
It seems to us clear that if it was his duty to exercise due diligence for the purpose in a case where he could establish that somebody else had removed the fence it would be equally his duty to exercise that diligence where be could not prove who had removed it
If it were not so the intention of the Act to give protection to workmen would be wholly defeated
For these reasons we are unable to agree with the view of the High Court or the learned trial magistrate
Accordingly we allow the appeal and set aside the judgment of the Courts below and convict the respondent under section 92 for contravening the terms of section 211ivc
We impose on him a fine of Rs200
In default he shall undergo one week s simple imprisonment
Appeal allowed


Summary:
While greasing the spur gear wheel of an oil mill one of the hands of a workman got caught and had to be amputated
It appeared that at the time of the accident the cover of the spur gear wheel was not there
The respondent who is the manager of the mill was prosecuted under section 92 of the for having failed to comply with section 211 iv c of the Act
The workman said that the cover had been removed by the respondent for repairs while the case of the respondent was that the workman had himself removed it
The trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone without his consent or knowledge
On appeal the High Court affirmed the acquittal
Held i The mere fact that someone else had removed the safeguard without the knowledge consent or connivance of the occupier or manager does not provide a defence to him
When the statute says that it will be his duty to keep a guard in position while the machine is working and when it appears that he has not done so it will be for him to establish that notwithstanding this he was not liable
ii Even where the occupier or manager could establish that somebody else had removed the fence he has further to prove that he exercised due diligence to see that the fence which under the Act was his duty to see was kept in position all along had not been removed