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1977 DIGILAW 170 (PAT)

Ganesh Cold Storage v. State Of Bihar

1977-09-10

UDAY SINHA

body1977
Judgment Uday Sinha, J. 1. This is an application under section 482 of the Code of Criminal Procedure, 1973, for quashing the order of the Chief Judicial magistrate dated 18.12.76 by which he took cognizance of offences under section 14 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. Petitioner No.1 is a Private Limited Company at Shosarai in the district of Nalanda. Petitioners 2 to 6 are directors and persons-in-charge of the establishment and are responsible for the conduct of its business. 2. It appears that on 18.12.76 the Inspector, Provident Fund, Bihar, filed a complaint before the Chief Judicial Magistrate in regard to infraction alleged to have been committed by the petitioners in terms of the Employees provident Funds and Miscellaneous Provisions Act (hereinafter called the provident Fund Act ). It is alleged that the petitioners were required to pay to the family pension fund of the members as well as the employers share of contribution within 15 days of the close of the month. It was also alleged that the petitioners failed to submit to the Regional Provident Fund Commissioner, bihar, Patna the monthly return of every month despite several requests. The accused failed to rectify the infraction committed by the petitioners even when directed to do so. The period for which the petitioners failed to submit the returns and to contribute to the fund was January.1969. In paragraph 8 of the complaint it was alleged that the petitioners had committed offences under the provident Fund Scheme read with section 14 of the Provident Fund Act on or about 15.2.69, 25.2.69 and 15.2.69. The complaint having been filed, cognizance of the offence was taken and the petitioners were summoned by the Chief judicial Magistrate. 3. Learned Counsel for the petitioners contended that the learned magistrate had no jurisdiction to take cognizance of the offence as the complaint had been filed beyond the period of limitation. Reliance was placed on section 468 (1) and 2 (b) of the Code of Criminal Procedure, 1973. Sec.468 prohibits a court from taking cognizance of any offence of the category specified in sub-section (2) after the expiry of the period of limitation. Subsection 2 (b) lays down one year from the date of commission of offence, if the offance is punishable with imprisonment for term not exceeding one year. Sec.468 prohibits a court from taking cognizance of any offence of the category specified in sub-section (2) after the expiry of the period of limitation. Subsection 2 (b) lays down one year from the date of commission of offence, if the offance is punishable with imprisonment for term not exceeding one year. Sec.14 (1) (a) of the Provident Fund Act, provides that any employer who contravenes or defaults in complying with the provision of section 17, in so far it relates to payment of inspection charges of paragraph 38 of the scheme, shall be punished with imprisonment which may extend to six months. Therefore, there can be no doubt that the offences under the Provident Funds Act are referrable to section 468 (b) of the Code of Criminal Procedure. It was, therefore, contended that the learned Magistrate had no jurisdiction to take cognizance in 1976 when the infraction was in 1969. 4. Section 468 of the Code of Criminal Procedure appearing in Chapter 36 of the Code is a new chapter, enacted in 1973. It came into force on the 1st April, 1974. Sec.468 has some riders added to it. The riders are to be found in sections 471, 472 and 473. Sec.471, provides for the running of limitation where the offence is continuing one. Sec.473 empowers a court to take cognizance after the period of expiry of limitation if it is satisfied that the delay had been properly explained or that it was necessary to do so tn the interest of justice. The submission on behalf of the petitioners were counter-acted on behalf of the State. It was submitted that the offence in question was a continuing offence as such there was no period of limitation. I regret, I am unable to accept the submission urged on behalf of the State. I am unable to hold that there shall be no period of limitation for continuing offences. The very fact that section 472 lays down that there shall be a fresh period of limitation, at the moment of the time during which the offence continues shows that concept of limitation is not foreign to a continuing offence. If the contention on behalf of the State is accepted the ambit of section 458 would stand abrogated with reference to continuing offences. If the contention on behalf of the State is accepted the ambit of section 458 would stand abrogated with reference to continuing offences. If that was the meaning and intention there was no point in mentioning in section 472 a fresh period of limitation. In that case the wordings could have much simpler and explict by only stating that the provision of section 468 shall not apply to continuing offences. I am, therefore, unable to subscribe to the views of learned Government Pleader. In my view the fresh period of limitation running at every moment must be within one year of the commission of the offence and during that period at any point of time the offence can be said to be committed and, therefore, cognizance can be taken within one year. 5. The second submission on behalf of the State is, however, substantial. It was contended that the provision contained in Chapter 36 were new and, therefore, attention of the provision was not drawn either of the Inspector of provident Fund or the learned Magistrate. It was stated that the petitioners had been contesting their liability to act in accordance with the proviso of the provident Fund Act since 1975 when a certificate was levied against the petitioners. The levying of the certificate proceeding was followed by filing of a writ petition by petitioner No.1 for quashing that proceeding. Writ application was filed in December, 1975, thereafter, the complaint in the present case was filed on the 11th January, 1977. Writ application was dismissed by this court with the observation that it will be open to the certificate officer to consider if the provisions of the Provident Fund Act applied to petitioner No.1. Upon these facts it was submitted that there were good reasons for the complainant in not having explained the delay in not filing the complaint. If the complaint had been filed prior to 3.4.74 there could have been no occasion for explain ing the delay in filing the complaint, nor would the court be precluded from taking cognizance of the offence. It was only after April, 1974 that the question of limitation arose and, therefore, learned Government Pleader contended that if the attention of the learned Magistrate had been drawn to this aspect of the matter it would have been satisfactorily explained. It was only after April, 1974 that the question of limitation arose and, therefore, learned Government Pleader contended that if the attention of the learned Magistrate had been drawn to this aspect of the matter it would have been satisfactorily explained. It is not necessary for me to give a concluded finding in this regard, as it was for the learned Magistrate to be satisfied and not for this court. There is another clause in section 473 which empowers a court to take cognizance of offence after the expiry of period of limitation. Cognizance can be taken if it is necessary to do so in the interest of justice. Certain obligations were cast upon employers for the benefit of workmen. Employers cannot be permitted to nullify the salutary effect of a welfare legislation, thus depriving workmen of some benifits conferred upon them by law. The petitioners have defaulted in making the contribution which would benefit workmen. In that view of the matter, I am of the view that taking of cognizence was necessary in the interest of justice. 6. Learned counsel for the petitioner contended that it was for the Chief judicial Magistrate to consider whether taking cognizance was in the interest of justice and not for this Court. It was contended by the learned counsel for the petitioners that if the learned Magistrate has not held that taking of cognizance was in the interest of justice this court could not impose its own view in regard to the demand of justice. I have some doubt about the correctness of this submission even if this submission on behalf of the petitioners were to be accepted as valid this court may refuse to exercise its jurisdiction under section 482 of the Code of Criminal Procedure. The power under section 482 of the Code should be exercised only to prevent abuse of process of any court or otherwise to secure ends of justice. Inference by this court in the instant case would not be to advance the ends of justice but to hamper it. I am, therefore, not inclined to exercise the inherent powers of this court and quash the cognizance taken by the learned Magistrate. 7. Inference by this court in the instant case would not be to advance the ends of justice but to hamper it. I am, therefore, not inclined to exercise the inherent powers of this court and quash the cognizance taken by the learned Magistrate. 7. Learned counsel for the petitioners also contended that the learned magistrate was obliged to dismiss the complaint upon a mere perusal of the complaint as the offences were of more than one year from the date of filing of complaint. That submission ignored the provision contained in section 473 of the Code of Criminal Procedure. I am, therefore, unable to accept it. 8. For the result indicated above, I find no merit in this application and is accordingly, dismissed. Application dismissed.