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State Vs. Jagannath Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in52(1981)CLT529; 1982CriLJ118
AppellantState
RespondentJagannath Ram and ors.
Excerpt:
.....for prosecution for offences under sections 14(1), 14-a (1) and 14-a (2) and, therefore, the learned magistrate clearly acted in excess of her jurisdiction in taking cognizance of those offences. 1 further show that the present case was instituted on 9-11-76 against the respondents for their failure to submit the statutory returns in forms 5, 10 and 12 prescribed under the scheme. 1975 by 25th of july, 1975. therefore, offences for failure to summit the returns, as alleged by the prosecution, were committed on 16th may, 1975, 16th june, 1975 and 16th july. gives discretion to the court to take cognizance of an offence after expiry of the period of limitation provided' it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or..........and none on behalf of the defence. prosecution also relied on documentary evidence. the learned magistrate who tried the case found the respondents not guilty and acquitted them. hence this appeal.3. on a scrutiny of the l. c r. i find that at the heading of the sanction order ext. l it is mentioned that the sanction is for offences under paragraph 76 of the employees' provident funds scheme, 1952 (hereinafter referred to as the scheme' read with sections 14, 14-a of the employees' provident funds and miscellaneous provisions act, 1952 (hereinafter referred to as the 'act'). in the operative portion of the sanction order in paragraph-2 the offence is stated to be 'punishable under paragraph 76 (b) of the scheme' section 14 (2a) of the act. section 14(2) does not have any.....
Judgment:

B.N. Misra, J.

1. This appeal is directed against the -judgment dated 28-2-78 passed by Smt. B. Devi, Judicial Magistrate, First Class, Bhubaneswar. in 2 (c) C. C No. 472 of 1976.

2. State (Central Government) is the appellant. Respondent No. 3 is the hotel of which respondents Nos. 1 and 2 are the partners. The hotel is situated at Bhubaneswar. The case of the prosect-tion is that respondents 1 and 2 failed to submit the statutory returns under paragraphs 36 (2) (a), 36 (2) (b) and 38 (2) of the Employees' provident Funds Scheme, 1952 within the prescribed time limits. P.W. 1 who claims to be the senior provident Funds Inspector submitted report against the respondents to the Regional Provident Fund Commissioner and the latter sanctioned prosecution of the respondents. Accordinqjy, prosecution report Ext. 2 was submitted to the court on 9-11-76 along with Ext. 1, the sanction order of the Regional Provident Fund Commissioner. The respondents were summoned and put on trial. Two witnesses were examined on behalf of the prosecution and none on behalf of the defence. Prosecution also relied on documentary evidence. The learned Magistrate who tried the case found the respondents not guilty and acquitted them. Hence this appeal.

3. On a scrutiny of the L. C R. I find that at the heading of the sanction order Ext. l it is mentioned that the sanction is for offences under paragraph 76 of the Employees' provident Funds Scheme, 1952 (hereinafter referred to as the Scheme' read with Sections 14, 14-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'Act'). In the operative portion of the sanction order in paragraph-2 the offence is stated to be 'punishable under Paragraph 76 (b) of the scheme' Section 14 (2A) of the Act. Section 14(2) does not have any application to the facts of this case. In paragraph 10 of the prosecution report Ext. 2, the offences are stated to be under paragraph 76 (b) of the Scheme read with Sections 14 (1) and (2) of the Act. Sections 14-A (1) and 14-A (2) have been crossed out in ink. In the sanction order Ext. 1, reference to Sections 14 and 14-A is at the heading, beyond and outside its operative part. in these circumstances, sanction cannot be said to have been given for offences Under Sections 14 and 14-A of the Act. Sanction must be held to be in respect of the offence under Paragraph 76 (b) of the Scheme. learned Counsel on both sides agree with this conclusion. In paragraph 1 of her judgment, the learned Magistrate has stated that accused persons stand prosecuted Under Sections 14(1), 14-A (1) and 14-A(2) of the Act. As already pointed out there was no sanction for prosecution for offences Under Sections 14(1), 14-A (1) and 14-A (2) and, therefore, the learned Magistrate clearly acted in excess of her jurisdiction in taking cognizance of those offences. I further find that in paragraph 1 of the judgment, there is no mention of paragraph 76 (b) of the Scheme regarding which sanction had been given for prosecution of the respondents. In the penultimate paragraph of her judgment (Paragraph-11) the learned Magistrate has held the accused persons not guilty Under Sections 14(1), 14-A (1) and 14-A (2) of the Act. There is no mention of paragraph 76 (b) of the Scheme. Since there was no sanction in respect of offences Under Sections 14(1), 14-A (1) and 14-A (2) of the Act, cognizance could not have been taken much less the respondents tried and acquitted by the learned (Magistrate for the said offences. The learned Magistrate should have bestowed greater attention on this aspect of the prosecution case.

4. I find from the order-sheet of the learned Magistrate that on 9-11-76 the period of limitation was extended for the Interest of justice. The punishment prescribed for an offence under pari-graph 76 (b) of the Scheme is imprisonment for a term which may extend to six months, or fine up to Rs. 1,000/-, or both. Under Section 468 of the Criminal P- C. the period of limitation in re- spect of offences punishable with imprisonment for a term not exceeding one year, is one year. The prosecution report Ext. 2 and the sanction order Ext. 1 further show that the present case was instituted on 9-11-76 against the respondents for their failure to submit the statutory returns in Forms 5, 10 and 12 prescribed under the Scheme. Paragraph 36 (2) (a) requires the return in Form 5 to be filed within 15 days of the close of each month end similarly paragraph 36 (2) (b) requires the return in Form 10 to be filed also within 15 days of the close of each month. Paragraph 38 (2) requires the returns to be filed in Form 12 within 25 days of the close of each month. In this case, prosecution relates to the period from April, 1975 to June, 1975. Returns in Forms 5 and 10 should have been filed in respect of the month of April, 1975 by 15th of May, 1975, in respect of the month of May, 1975 by 15th of June, 1975 and in respect of the month of June, 1975 by 15b of July, 1975. Returns of Form 12. in this case, should have been filed for the month of April, 1975 by 25th of May, 1975, for the month of May, 1975 by 25th of June, 1975 and for the month of June. 1975 by 25th of July, 1975. Therefore, offences for failure to summit the returns, as alleged by the prosecution, were committed on 16th May, 1975, 16th June, 1975 and 16th July. 1975 and 26th May, 1975, 26th June, 1975 and 261 h July, 1975. By the date the prosecution report was submitted to court on 9-11-76, the period of limitation of one year in respect of the aforesaid offences had obviously already expired, it is clear from the records that no petition for condonation of delay was filed by the prosecution nor were any grounds disclosed by the prosecution to the court justifying extension of the period of limitation. No doubt Section 473 of the Criminal p. C. gives discretion to the court to take cognizance of an offence after expiry of the period of limitation provided' it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of -justice. It is cardinal principle of law that whenever a discretion is vested in a court, it must always be judiciously exercised. What are the facts and what are the circumstances of this case which may lead a court to the conclusion that the delay has been properly explained or that it is necessary to condone the delay in the interest of justice? Nothing has been discussed or stated by the learned Magistrate in the order dated 9-11-76. As already roted, no grounds have been put forward by the prosecution explaining the delay and the court appears to have improperly exercised its discretion in extending the period of limitation on 9-11-76 in the absence of any material before it. Such mechanical extension of time without any basis is clearly an abuse of the process of law. In the absence of any materials before the court, it may be held that the delay in launching prosecution in this case has not at all been explained nor can it be said that in this case it is necessary to condone the delay in the interest of justice. Therefore, cognizance should not have been taken after expiry of the period of limitation.

5. It has been found by the learned Magistrate that the prosecution had failed to produce before her any notification to show that the Regional Provident Fund Commissioner had been authorised by the Central Government to sanction prosecution as enjoined Under Section 14-AC of the Act. On going through the lower court record I find that no such notification was produced in the court below. However, the learned Counsel appearing for the State has produced before me the 14th. Edition of the Employees' Provident Funds and Miscellaneous Provisions Act. 1Q52 published by the Madras Book Agency wherein the notification Under Section 14-AC has been printed at pace 242. The notification is referred to therein as having been published in the Gazette of India, pt. m Section 3(Hi) dated the 17th October. 1973. at page 1797 as amended by S.O. 1639 dated 9th May, 1975. In the said notification it is provided that the powers vested in the Central Provident, Fund Commissioner shall also be exercisable by the respective Regional Provident Fund Commissioners including the Regional provident Fund Commissioner for the State of Orissa and this notification had come into force on the 1st. day of November, 1973. In view of this notification, I must hold that the Regional provident Fund Commissioner had been duly authorised by the Centzal Government to accord sanction for prosecution for offences under the Act and the Scheme. It is a pity that prosecution did not take any steps either to file the aforesaid notification or even refer to the book as was done here, so that the learned Magistrate may not have held this point against the prosecution.

6. learned Counsel appearing for the respondents has vehemently urged that even if the Regional Provident Fund Commissioner is held to be competent to accord sanction in this case, the requirement of Section 13 of the Act has not been complied with in as much as the notification appointing P.W. 1 as the Provident Fund Inspector as required Under Section 13 of the Act has neither been produced nor proved by the prosecution. Section 13(1) of the Act provides as follows :-

13- Inspectors- (1) The appropriate Government, may, by notification in the Official Gazette, appoint such persons as it thinks fit to be Inspectors for the purposes of this Act, the Scheme, the Family pension Scheme Or the Insurance Scheme, and may define their jurisdiction.

In this case, in the prosecution report (Ext. 2.) P.W. 1 has described himself as the Inspector appointed Under Section 13 of the Act and in his evidence in court he has described himself as the senior Provident Fund Inspector. Though he has denied the defence suggestion that he- is not legally competent to launch the present prosecution, he has nowhere stated in his examination-in-chief that he is the Inspector who has been appointed Under Section 13 of the Act. In the absence of any positive assertion by P.W. 1 that he has been appointed ns the Inspector under the Act and since the prosecution has failed to produce the notification appointing P.W. 1 as the Inspector under the Act, I agree with the learned Magistrate that the requirement of Section 13 of the Act has not been complied with. The learned Magistrate is right in her conclusion that the prosecution has failed to prove that P.W. 1 is competent to file the prosecution report in this case.

7. In view of the bar of limitation and the lacuna in the prosecution case discussed in paragraph-6, which must be held to be fatal to the prosecution and this being a judgment of acquittal, I do not see any good reason why the said judgment should be interfered with. This appeal is accordingly dismissed.


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