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Exemption of occupier or owner in certain cases.
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107.—(1) Where the occupier or owner of a factory is charged with an offence under this Act, he shall be entitled, upon information duly laid by him and on giving to the prosecution not less than three days' notice in writing of his intention, to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge.
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(2) The persons whom the occupier or owner of a factory is entitled under subsection (1) of this section to have brought before the court as the actual offender include any person whatsoever whom he charges as the actual offender, whether or not that person is his agent or servant.
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(3) If, in a case to which subsection (1) of this section applies, the commission of the offence is proved and the owner or occupier proves to the satisfaction of the court—
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(a) that he has used all diligence to enforce the execution of the relevant provision of this Act or a regulation or order made thereunder, and
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(b) that the other person whom he charges as the actual offender committed the offence without his consent, connivance or wilful default,
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that other person shall be summarily convicted of the offence, and the occupier or owner shall not be guilty of the offence, and the person so convicted shall, in the discretion of the court, be also liable to pay any costs incidental to the proceedings.
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(4) The prosecution shall, in any case to which subsection (1) of this section applies, have the right to cross-examine the occupier or owner if he gives evidence and any witnesses called by him in support of his charge, and to adduce rebutting evidence.
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(5) When it is made to appear to the satisfaction of an inspector at the time of discovering an offence under this Act—
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(a) that the occupier or owner (as the case may be) of the factory has used all due diligence to enforce the execution of the relevant provision of this Act or a regulation or order made thereunder,
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(b) by what person the offence has been committed, and
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(c) that it has been committed without the consent, connivance or wilful default of the occupier or owner and in contravention of his orders,
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proceedings shall be taken against the person whom the inspector believes to be the actual offender without first proceeding against the occupier or owner.
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