# STATE OF GUJARAT v. JETHALAL CHELABHAI PATEL

- **Citation:** [1964] 5 S.C.R. 801
- **Court:** Supreme Court of India
- **Decided:** 1963-12-06
- **Case number:** Criminal Appeal No. 193 of 1961
- **Bench:** A.K. Sarkar, K.N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-v-jethalal-chelabhai-patel-3045
- **Pages:** 7

## Headnote

Factories Act, 1948 (63 of 1948), ss. 2l{l)(iv)(c), 92, 101Dangerous Machine-Inquiry-Absence of fence-Removal by
somebody else, if good defence.
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 s. 92 of the Factories Act for having failed to
comply with s. 21(1) (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.

## Text

-
.,
-
5S.C.R.
SUPREME COURT REPORTS
. STATE OF GUJARAT
v.
JETHALAL CHELABHAI PATEL
801
(A.K. SARKAR AND K.N. WANCHOO, JJ.)
Factories Act, 1948 (63 of 1948), ss. 2l{l)(iv)(c), 92, 101Dangerous Machine-Inquiry-Absence of fence-Removal by
somebody else, if good defence.
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 s. 92 of the Factories Act for having failed to
comply with s. 21(1) (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.
CRIMINAL APPELLATE JURISDICTION:
Criminal
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.
D.R. Prem, K.L. Hathi and R.H. Dhebar. for the
appellant.
·
The respondent did not appear.
December 6, 1963.
The Judgment of the Court
was delivered by
I/SCI/64-51
1963
December 6
802
SUPREME COURT REPORTS
[1964]
~
1963
SARKAR J.-This appeal raises a question under
--
the Factories Act, 1948. It was unfortunate that
State of Gujarat there was no appearance on behalf of the respondent
v.
but Mr. Prem appearing in support of the appeal has
Jethalal
placed the matter very fairly before us with all the
Chelabhai Patel relevant reported decisions from the point of view
of both the appellant and the respondent. We are
Sarkar J.
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 had 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 s. 92 of
the Act for having failed to comply with s. 21 (I)
(iv) (c). The relevant part of this section is as
follows:
S. 21.
(J) 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:
f
-
,_
I
..
-
'
•
5 S.C.R.
SUPREME COURT REPORTS
803
S. 92. Save as is otherwise expressly provided
1963
in this Act. ....... if in, or in respect of, any
-
factory there is any contravention of any of the State of Gujarat
provisions of this Act. ...... the occupier or
v.
manager of the factory shall be guilty of an offence
Jethalal
and punishable with imprisonment ........... , Chelabhai Patel
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 Factories Act 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 s.
21(1)liv)(c) of the
Indian Act, yet it is qualified by the test of foreseeability, and l2) 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 Hi 1rh
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.
·
Sarkar J.
804
· SUPREME COURT REPORTS
[1964]
1963
As the High Court stated, there is no dispute
-·
that the spur gear wheel was a dangerous machine
State of Gujarat within the meaning of s.
2l(l)(iv)(c). That being
. v.
so, clearly, there was an obligation to securely fence
Jethalal
it and to see that the fence was "kept in position
Chelabhai Patel while the parts of machinery they are fencing are
in motion or in us.e". Indeed the fact that the resSarkar J.
pondent 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 s. 21(\)(iv)(c) 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 o bligation 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
-
-
•
,,
5 S.C.R.
SUPREME COURT REPORTS
805 -
upon had removed. it and that was something which
1963
the occupier er· man:iger could not\ 1easonably be
-
expected to anticipate and he .. could not be made StateofGujartiJ
liable for such removal.
v,
Jethalal
We are unable to accept this View of the niatter. Chelabha; Paiel
No doubt the default on the part of the person accused
-
has to_ be established by the prosecution -before there
Sarkar J.
can be a con victi6n. It has to be observed that s. 21
(l)(iv)(c) 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 he
was not liable. It is not necessary for U'> 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
. SUPREME COURT REPORTS
[1964]
1961
not, of course, require an impossibility of a person.
-
But there is nothing to show that that is the case here.
StaleofGuja_ratThe respondent has given no evidence whatever to
. v.
show what he had done to carry out his duty to see
Jethalal
that the guard was kept in position when the machine
Cizebbhai Patriwas working. The onus to prove that was on him
-
. ! because his defence depended on it. He has completeSarkar J.
ly failed to discharge that onus. We, therefore,.
__ .
··think that he is liable under s. 92 of the Act for having
,•
failed to carry out the terms of s. 2l(l)(iv).
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 s. 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 disch3.rged. 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
. 5 S.C.R.
. SUPREME COURT REPORTS
807
to see' that the fence which under the Act it was his
1963
duty to see was kept in position all along had not
-'.-.
been . removed. It seems to us clear that if it was State 0! Gujarat
his duty to exercise due diligence for the purpose in a
. . V• •• ·
case where he could establish that somebody else
Jetha1'!1
had removed the fence, it would be equally his duty Chelabha•. P<:!el
to exercise that diligence where he could not prove
Sarkar J .. :
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 th~
view of the High Court or the learned trial magisttate.
Accordingly we allow the appeal and set aside the
judgment of the Courts below and convict the respondent under s. 92 for contravening the terms of
s. 2l{l){iv)(c). We impose on him a fine of Rs.
200. In default he. shall undergo one week's simple . ·
imprisonment.
Appeal allowed.
SULTAN BROTHERS (P) LTD.
v.
COMMISSIONER OF INCOME-TAX
(B.P. SINHA, C.J., A.K. SARKAR, M. HIDAYA'Tfill!AH,
K.C. DAS GUPTA AND N; RAfAGOPALA 'AYYANGAR
JJ.)
.
Income Tax-Assessment-Letting of building and furnitureSuch letting, if business-Income Tax Act, 1922 (11 of 1922), ss.
JO, 12(4).
.
. .
The appellant assessee Jet out a building fully equipped and
furnished, for a term of six years for running a hotel and for certain
ancillary purposes. The lease provided for a rent for the building
and a hire for the furniture and fixtures. In the assessment of the
income under· the lease to income-tax,
. Held: Whether a particular letting is business has to be decid·
ed in the circumstances of each case. It would not be'..the doing
1963
December 6