Section 104 of the Factories Act 1948 - Onus as to Age
Section 104 dealt with the burden of proving a worker's age in prosecutions under the Factories Act, 1948 and with the evidentiary value of a written declaration made by a certifying surgeon.
Text of Section 104: Onus as to age
(1) When any act or omission would, if a person were under a certain age, be an offence punishable under this Act, and such person is in the opinion of the Court prima facie under such age, the burden shall be on the accused to prove that such person is not under such age.
(2) A declaration in writing by a certifying surgeon relating to a worker that he has personally examined him and believes him to be under the age stated in such declaration shall, for the purposes of this Act and the rules made thereunder, be admissible as evidence of the age of that worker.
Meaning and effect of Section 104
Section 104 created a specific evidentiary rule for age-related offences under the Factories Act. Where an act or omission would constitute an offence if the person concerned were below a specified age, and the Court considered that person prima facie to be below that age, the accused carried the burden of proving otherwise.
The provision also made a written age declaration by a certifying surgeon admissible as evidence where the surgeon had personally examined the worker and stated a belief that the worker was below the age mentioned in the declaration.
Important expressions
Prima facie
In this context, "prima facie" means that, on the material initially before the Court, the person appears to be below the relevant age. Once the statutory condition was satisfied, Section 104 placed the burden regarding age on the accused.
Certifying surgeon
Under the Factories Act, a certifying surgeon was a qualified medical practitioner appointed for prescribed duties under the Act, including functions connected with the examination and fitness of young persons. Section 104(2) gave specified evidentiary value to the surgeon's written declaration concerning age.
How the provision operated
- The underlying act or omission had to become punishable because the person concerned was below a specified age.
- The Court first had to form a prima facie opinion that the person was below that age.
- The burden then shifted to the accused to establish that the person was not below the relevant age.
- A qualifying written declaration of a certifying surgeon was admissible as evidence of the worker's age.
Current law and repeal of the Factories Act
The Occupational Safety, Health and Working Conditions Code, 2020 is now the central consolidating legislation governing occupational safety, health and working conditions within its scope. The Code came into force on 21 November 2025. Section 143(1)(a) repeals the Factories Act, 1948, while Section 143 also contains savings provisions for specified actions, appointments and instruments under the repealed enactments.
For a current compliance issue, the OSHWC Code, the applicable rules, notifications and the relevant Central or State framework should be checked. Section 104 of the repealed Factories Act should not be treated as a presently operative standalone provision.
Official legal sources
Factories Act, 1948 - official India Code text
Occupational Safety, Health and Working Conditions Code, 2020 - India Code
This page is intended for legal information and historical reference. The application of repeal and savings provisions can depend on the facts, date of the cause of action, proceedings and applicable rules or notifications.