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Sisir Kumar Panda and ors. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision Nos. 78 and 79 of 1982
Judge
Reported in1985(I)OLR535
ActsEmployees' Provident Funds and Miscellaneous Provisions Act, 1952 - Sections 14 and 14(2); Code of Criminal Procedure , 1973 - Sections 468, 472 and 473
AppellantSisir Kumar Panda and ors.
RespondentState of Orissa
Respondent AdvocateK.C. Mohanty, Adv.
DispositionRevision allowed
Cases ReferredState of Bihar v. Deokaran Nenshi
Excerpt:
.....provident fund commissioner on the other hand contends that the offence complained of is a continuing offence and a fresh period of limitation shall begin to run at every moment of time during which the offence continues coming within the ambit of section 472 of the code of criminal procedure and, therefore, there is no illegality in taking cognisance in the year 1978. the question which, therefore, comes up for consideration is whether the offence of non-submission of returns as contemplated under the scheme is a continuing offence or not. was considering the question whether the offence for failure to furnish return under section 66 of the mines act, 1952 is a continuing one or not. it is one of those offences which arises out of a failure to obey or comply with a rule or its..........employees provident funds scheme, 1952. (here in to as the scheme) for non submission of statutory returns, cognisance was taken by the learned sub-divisional judicial magistrate, bhubaneswar and the prayer in both these revision petition is to quash said cognisance. criminal revision no 78 of 1982 is directed against the cognisance taken in 2 (c) cc case no. 229 of 1978 on the allegation that for period sept., 1965 to nov. 1965 the accused persons did not submit returns as required under the act and the scheme. similarly criminal revision no. 79 of 1982 is directed against the order of the magistrate taking cognisance of the offence in 2(c) cc case no. 222 of 1978 on 28.10.1978 on the allegation that the accused persons did not submit the returns as required under the act and to scheme.....
Judgment:

G.B. Pattnaik, J.

1. Since common question of law is involved in those two revision, they were heard together and are being disposed of by this common judgment.

2. On receipt of prosecution reports under Section 14 read with Section 14(2) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (here in after referred to as the Act) and under Section 76 (b) and (d) of the Employees Provident Funds Scheme, 1952. (here in to as the Scheme) for non submission of statutory returns, cognisance was taken by the learned Sub-divisional Judicial Magistrate, Bhubaneswar and the prayer in both these revision petition is to quash said cognisance. Criminal Revision No 78 of 1982 is directed against the cognisance taken in 2 (C) CC Case No. 229 of 1978 on the allegation that for period Sept., 1965 to Nov. 1965 the accused persons did not submit returns as required under the Act and the Scheme. Similarly Criminal Revision No. 79 of 1982 is directed against the order of the Magistrate taking cognisance of the offence in 2(C) CC Case No. 222 of 1978 on 28.10.1978 on the allegation that the accused persons did not submit the returns as required under the Act and to Scheme for the period 1.12.1965 to 23. 2.1966.

3. Section 14 of the Act provides for penalties for making any false statement or false representation to avoid any payment which is required under the Act or the Scheme to be made. Sub-section (2) of Section 14 stipulates that the Scheme may provide that any person who contravenes or makes default in complying with any of, the provisions thereof shall be punishable with imprisonment for a term extend to, six months, or with fine which may extend to one thousand rupees, ox with both. Section 36(1) of the Scheme casts and obligation cm every employer to send to the Commissioner defined in the Scheme, within fifteen days of the . commitment of the Scheme a consolidated return in such form as the Commissioner may specify indicating be employees required or entitled to become members of the Fund showing their basis wage, retaining allowance and dearness allowance etcetera and the proviso to the said Sub-section (1) even casts an obligation on the employer to give a nil return when no employee is entitled to become a member of the Fund. Sub- Section 2 of Section 36 requires that the' employer must within fifteen days of the close of each month file a return in Form 5 and Sub-section (2) (b) says that the return should also indicate the employees who have left the service of the employer during the proceeding month. Proviso to the said Sub-section also requires that if there is no employee qualifying to become a member for the first time or there is no employee leaving service of the employer during the preceeding month, the employer shall send a nil return. Section 38(2) at the Scheme requires that the employer shall forward to the Commissioner within twentyfive days of the close of the month, a monthly consolidated statement in such form as the Commissioner may specify showing recoveries made from the wages of each employee and the amount contributed by the employer in respect of each employee and the proviso to the said Sub-section also requires that if no recovery has been made from any employee, then a nil return has to be tiled. Sec 76 of the Scheme provides that if any person fails or refuses to submit any return, statements or other documents required by the Scheme or is guilty of contravention of or non-compliance with any other requirement of the Scheme, then he shall be punishable with imprisonment which may extend to one month or with fine which may extend to one thousand rupees, or with both.

The non-compliance in the present cases comes within the ambit of Section 76 (b) and (d) of the Scheme since the prosecution case is that the accused persons did not file their returns as required under Section 36 of the Scheme within the time stipulated therein.

4. Mr. Das, the learned counsel for the petitioners contends that the alleged offences having been committed in the year 1965-65, cognisance of the same could not have been taken in the year 1978 after lapse of twelve years since it would be hit by the provision in Sec 468 of the Code of Criminal Procedure. Section 468 of the Code provides the period of limitation and prohibits taking of cognisance after the expiry of the period of limitation. Mr. Mohanty appearing for the Regional Provident Fund Commissioner on the other hand contends that the offence complained of is a continuing offence and a fresh period of limitation shall begin to run at every moment of time during which the offence continues coming within the ambit of Section 472 of the Code of Criminal Procedure and, therefore, there is no illegality in taking cognisance in the year 1978. The question which, therefore, comes up for consideration is whether the offence of non-submission of returns as contemplated under the Scheme is a continuing offence or not.

5. Mr. Das, the learned counsel for the petitioned places reliance on the decision of the S. C. in the case of State of Bihar v. Dokaran Nenshi and Anr., AIR 1973 S. C- 908 in support of his contention that the offence is committed once and for all and not a continuing one. In that case, the S. C. was considering the question whether the offence for failure to furnish return under Section 66 of the Mines Act, 1952 is a continuing one or not. In paragraph 5 of the judgment, their Lordships discussed as to the meaning of a continuing offence and held thus :

' Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distiction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence',' there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. '

After referring to some illustrative cases, there Lordship held :

'Reg. 3 read with Section 66 of the Mines Act makes failure to furnish annual returns for the preceding year by the 21st of January of the succeeding year an offence. The language of Reg. .3 clearly indicates that an owner, manager etc., of a mine would be liable to the penalty if he were to commit an infringement the Regulation and that infringement consists in the failure to furnish returns on or before January 21 of the succeeding year. The infringement, therefore, occures on January 21 of the relevant year and is complete on the owner failing to furnish the annual returns by that day. The Regulation does not lay down that the owner', manager etc., of the mine concerned would be guilt of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Reg. 3 is complied .with. In other words Reg.3 does not render a continued disobedience or non-compliance of it an offence. As in the case of a construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made a default occurs in furnisning , the returns by the prescribed date. There is nothing in Reg. 3 or in any other provision in the Act or the Regulations which renders the continued non-compliance an offence until its requirement is carried out.'

This decision was considered by the Supreme Court in the cape of Bhagirath Kanoria and Ors. v. State of M. P. : AIR 1984 S. C 1688. In this case, the Supreme Court was considering whether the offence of non-payment of contribution by the employer to the provident fund was a continuing offence or not. Their Lordships have observed that the expression 'continuing offence' is not defined in the Code of Criminal Procedure, but that is because expressions which do not have a fixed connotation or a static import are difficult to define. In paragraph 18 of the judgment, their Lordships observed :

'The decision of this Court in State of Bihar v. Deokaran Nenshi (AIR 1973 S. C 908) to the effect that failure to furnish returns before the due date is not a continuing offence must be confined to cases of failure to furnish returns. It cannot be extended to cases like those before us in which the contravention is not of a procedural or formal nature and goes against the very grain of the statute under consideration. ...'

(underlining is mine)

In paragraph 19 of the judgment, their Lordships have further discussed the law as thus:

' The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the .offence and, above all, the purpose which intended to be achieve by constituting the particular act as an offence. Turning to the matters before us, the offence of which the appellants are charged is the failure to pay the employer's contribution before the due date. Considering the object and purpose of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the of fence is not of a continuing nature. The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it, as soon after the due date had expired as they willed. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. It is putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who has not paid his contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply. '

Though the aforesaid observation of the Supreme Court was in connection with the offence of non-payment of contribution to the Provident Fund, yet non-furnishing of return also should come within that category. But the Supreme Court in this case has also approved the earlier decison of the Court in Deokaran's case (AIR 1973 SC 908) and, therefore, the broad observation that the decision in Dcokarn's case applies to the offence of failure to furnish return before the due date, governs the present case and as such, the offence must be held to be a non-continuing one.

6. Even though the offence is held to be a non-continuing one, yet the Magistrate can take cognisance of the same even after the expiry of the period of limitation by taking recourse to Section 473 of the Code of Criminal Procedure, as the interests of justice so require. That is why in Bhagirath Eanoria's case (AIR S.C. 1688), the S. C observed :

'The hair-splitting argument to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been. averted by holding that, considering the object purpose of the act, (the learned Magistrate ought to take cognisance of the offence after the expiry of the period of limitation if any such period applicable, because, the intetest, of justice so, requires. believe that in cases of this nature Courts which are confronted with provisions' Which lay down a rule of limitation governing prosecutions, will give due weight and considerations, to the provisions contained in Section 473 of the Code.

In the case in hand the learned Magistrate has not taken recourse' to the provisions contained in Section 473 of the Code of Criminal Procedure and. (therefore, the cognisance that was taken in the Year 1978 after long lapse of twelve years attracts the mischief of the period limitation provided for Section 468 of the Code of Criminal Procedure and consequently the cognisance is bad in law.

7. Mr. Das for the petitioners submits that in fact the so-called return has been filed in the meantime though if had not been filed within the due date and, therefore, the offence if any, should be aspect viewed from that angle. It is not necessary for me to go in for this aspect since I have already held that the offence in question is not a continuing one and the cognisance is barred under Section 468 of the Code of Criminal. Procedures.

8. In the result,, therefore, I would-set aside 'the order of the learned; Magistrate taking cognisance in each of the cases and the Criminal Proceedings. Both these revisions are accordingly allowed.


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