IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 Crl.MC.No. 1996 of 2009(B) -------------------------------------- [CC.NO.198/2009 OF CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE] .................... REVISION PETITIONER/ACCUSED: ------------------------------------------------- SMT.T.K.SAVITHRI, OCCUPIER, SUPER PENCIL INDUSTRIES, NALLUR P.O., FEROKE. BY ADV. MR.T.G.RAJENDRAN. RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------ 1. THE INSPECTOR OF FACTORIES AND BOILERS GRADE-I, KOZHIKODE SOUTH. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/02/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1996 OF 2009 =========================== Dated this the 16th day of February,2010 ORDER Petitioner is the accused in C.C.198/2009 taken cognizance for the offence under section 92 of the Factories Act on Annexure I complaint filed by the Inspector of Factories and Boilers, Kozhikode under section 105(1) of Factories Act. This petition is filed under section 482 of the Code of Criminal Procedure to quash Annexure I complaint as well as the cognizance taken. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that the allegations in Annexure I complaint is that the licence issued to the petitioner to run the factory M/s.Super Pencil Industries, Crl.M.C.1996/2009 2 Feroke expired on 31.12.2006 and was not renewed thereafter and therefore there is violation of Rule 7 of Kerala Factories Rules, 1957 as prescribed under section 6(d) of the Factories Act and punishable under section 92 of the Factories Act. It is also the case that by failing to maintain first aid box equipped with the prescribed contents as provided under Rule 89A of Kerala Factories Rules, 1957, as provided under section 45(1) of Factories Act 1948, petitioner is liable for punishment under section 92 of the Factories Act. It is also contended that by failure to provide and maintain adequate number of fire extinguishers, petitioner violated the provisions of sub section (1) of Section 38 of Factories Act which is punishable under section 92 of the Factories Act. The argument of the learned counsel is that though petitioner did not file an application for renewal of the licence, within the statutory period sub rule (3) of Rule 7 enables Crl.M.C.1996/2009 3 the petitioner to file an application for renewal after expiry of the period of licence and as an application for renewal was subsequently submitted and it is even now pending, there is no violation of Rule 7 and therefore prosecution for violation of rule 7 is only an abuse of process of the court. The argument of the learned counsel is that proviso to sub rule (3) makes it absolutely clear that an application for renewal could be filed even after the period provided under sub rule (2), by paying an additional fee of 25% and even after expiry of the period of licence, an application could be filed with an excess fee of 50% and as petitioner filed an application for renewal, there cannot be a prosecution for violation of Rule 7, as violation could only be if petitioner did not apply for renewal of licence and still run the factory without a valid licence. Learned counsel also argued that if ultimately the application for renewal is allowed, it would relate Crl.M.C.1996/2009 4 back to 1.1.2007, in which case there cannot be a violation of Rule 7 and on that ground also, the prosecution for violation of Rule 7 is an abuse of process of the court. 4. Learned counsel then argued that though it is alleged that there is violation of Rule 89A of the Kerala Factories Rules 1957, the complaint does not disclose whether the failure is to maintain first aid box with all the prescribed contents as provided under the Rules or though first aid box is maintained, it is without all the prescribed contents and the material produced do not establish what is the violation and hence prosecution for violation of Rule 89A is also unsustainable. Learned counsel then argued that Annexure I complaint does not disclose whether the failure of the petitioner is to provide any fire extinguisher or adequate number of fire extinguisher and if it is failure to maintain adequate number of fire extinguisher, what was the Crl.M.C.1996/2009 5 shortage, and hence learned Magistrate should not have taken cognizance for violation of Section 38 (1) of the Factories Act. 5. Learned Public Prosecutor pointed out that under sub rule (2) of Rule 7, an application for renewal of licence is to be filed in the prescribed form, not less than two months before the date on which the licence expires and though the proviso to sub rule (3) enables her to file an application belatedly, the deeming provision under sub rule (2) is not available in that case and if that be so, as the licence expired on 31.12.2006 and when petitioner did not file an application for renewal even on 19.2.2009, when the complaint was filed, there was violation of the provisions of Rule 7 and hence the complaint cannot be quashed. Learned Public Prosecutor also argued that complaint makes it absolutely clear that petitioner failed to provide first aid box equipped with prescribed contents and also maintain adequate number of fire Crl.M.C.1996/2009 6 extinguishers and prosecution cannot be quashed as sought for. 6. Rule 7 of the Factories Rules provides for renewal of licence. Under sub -rule (1), a licence is to be renewed by the competent authority. Under sub- rule (2) an application for renewal of licence is to be filed in the prescribed form in triplicate and it shall be made to the competent authority. The application shall be filed not less than two months before the date on which the licence expires. Sub-rule (2) further provides that if the application is so made, the premises shall be held to be duly licenced until such date as the competent authority under sub rule (1) renews the licence or till the competent authority intimates the applicant in writing his refusal to renew licence as the case may be. Sub- rule (3) provides that the fee for renewal of a licence shall be the same as that for grant of a licence. The proviso to sub rule (3) provides that if the application Crl.M.C.1996/2009 7 for renewal is not received by the competent authority within the time specified in sub-rule (2), the licence shall be renewed only on payment of an additional fee. Under clause (i), if the application is received before the expiry of the licence, 25% of the fee ordinarily payable is to be paid. Under clause (ii) if the application is received after the expiry of the licence, 50% of the fee ordinarily payable is to be paid. Second proviso mandates that the State Government or subject to the control of the State Government, the Chief Inspector may waive the payment of additional fee by a written order for valid reasons. 7. Sub-rule (4) provides for an application for renewal of licence. Sub-rule (5) provides that every licence renewed under the rule shall remain in force upto 31st December of the years for which the licence is renewed. The proviso to sub-rule (5) makes it clear that the Chief Inspector or the competent authority may renew the licence for more Crl.M.C.1996/2009 8 than one year but not exceeding 5 years at a stretch, if an application is so made along with the chalan receipt towards the payment of the required fee in lumpsum. 8. Sub-rule (2) of Rule 7 makes it clear that an application for renewal shall be filed in the prescribed form not less than two months before the date on which the licence expires. The consequence of such an application is also provided under sub rule(2). It reads:- “(2) Every application for the renewal of licence shall be in the prescribed Form No.2 in triplicate, and shall be made to the Competent Authority not less than two months before the date on which the licence expires and if the application is so made the premises shall be held to be duly licenced Crl.M.C.1996/2009 9 until such date as the Competent Authority under sub- rule (1) renews the licence or till the Competent Authority intimates the applicant in writing his refusal to renew the licence as the case may be.” Though proviso to sub-rule (3) provides that an application for renewal, if not received within time provided under sub rule (2) the licence could be renewed on payment of additional fee, it does not provide that if an application for renewal is made after the expiry of the period provided under sub rule (2) the premises shall be held to be duly licenced until a decision is taken in that application, as is the case of an application filed within the period as provided under sub-rule (2). Therefore eventhough a licence which expired could be renewed later, by filing an application for Crl.M.C.1996/2009 10 renewal, the licensee cannot claim that there is a deemed licence as provided under sub-rule (2). If that be so, the argument of the learned counsel appearing for the petitioner that in view of the application subsequently filed on 28.5.2009, there is no violation of Rule 7 of the Factories Rules cannot be accepted. It is more so, when the application for renewal was filed only on 28.5.2009 and the complaint was filed earlier even the cognizance on Annexure I complaint was taken on 24.2.2009. When cognizance was taken on 24.2.2009, there was no licence as the licence expired on 31.12.2006. There was not even an application for renewal of the licence. Therefore the complaint or the cognizance taken cannot be quashed on that ground. 9. The complaint makes it clear that petitioner failed to maintain first aid box equipped with the prescribed contents as provided under Rule 89A of Factories Rules, 1957. The case Crl.M.C.1996/2009 11 is not that petitioner maintained the first aid box, but failed to provide the prescribed contents in the first aid box. The allegation is that petitioner failed to maintain first aid box equipped with the prescribed contents. Therefore I find no justifiable reason to quash the prosecution for violation of Rule 89A also. Similar is the case with the violation to maintain adequate number of fire extinguishers as provided under section 38 (1) of the Factories Act. Therefore Annexure I complaint or the cognizance taken cannot be quashed as sought for by the petitioner. 10. Learned counsel then submitted that as Annexure VI application is pending before the competent authority, a direction be issued to dispose the application without further delay. As the application is pending from 27.5.2009, the competent authority may dispose the application expeditiously. 11. Learned counsel appearing for the Crl.M.C.1996/2009 12 petitioner then submitted that petitioner is aged about 68 years and her presence may not be insisted for the purpose of trial and she be permitted to appear through a counsel. It is up to the petitioner to file an application, before the Magistrate seeking permission to appear through a counsel and to dispense with her presence as provided under section 205 of Code of Criminal Procedure. If an application is filed, learned Magistrate to consider it and pass appropriate orders in accordance with law. Petitioner is entitled to take up all defence before the learned Magistrate even based on the order to be passed in the application for renewal. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006