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1979 DIGILAW 210 (KAR)

STATE v. DIAMOND PRABHU

1979-08-23

D.R.VITHAL RAO, M.S.NESARGI

body1979
( 1 ) IN this appeal by the State, the order of acquittal dated 28th June, 1978 passed by the Principal Judicial Magistrate First class, Chickmagalur in C. C. No. 381 of 1977 acquitting the respondents who were the accused therein of the offence under s. 18 (3) punishable under S. 29 of the industrial Disputes Act (hereinafter referred to as the Act) is challenged. ( 2 ) THE relevant facts may be narrated as follows : dr. G M. Prabhu, who is said to have expired in August, 1973, was the owner and proprietor of a coffee estate called bokkekhan estate, Kesavinamane Post chickmagalur and P. W. 3 Hameed was an employee under Dr. Prabhu. The service of P. W. 3 was terminated by Dr. Prabhu and as such he raised a dispute. The Labour court, Chickmagalur passed an award in favour of P. W. 3; and that award was published in the Karnataka Gazette dated 3-1-1974. The Labour Court directed that p. W. 3 should be re-instated in his post. The direction remained uncomplied with. It appears, that P. W. 3 represented to the commissioner of Labour that though the labour Court had directed that he should be reinstated, he was not reinstated and there was correspondence between the Commissioner of Labour and the respondents (hereinafter referred to as the accused), who had succeeded Dr. Prabhu on his death Ultimately, the Commissioner of labour authorised the Labour Officer (hereinafter referred to as the complainant) by his order No. laa/cr. 12/75-76 dated 12th april, 1976 to prosecute the accused in consultation with the Public Prosecutor for not implementing the award of the Labour court The complainant filed a complaint in the Court of the J. M. F. C. , Chickmagalur on 6-10-1976. He also filed an application, along with the complaint, praying that the delay in filing the complaint be condoned and the complaint be entertained ( 3 ) IT is clear from the order sheet maintained in the case that on 6-10-1976 itself the Magistrate took cognizance of the offence and issued process against the accused. He did not pass any order on the application filed by the complainant praying for condonation of delay in filing the complaint Further scrutiny of the order sheet shows that on 22-9-1977 the magistrate has recorded as follows " The question of limitation is left open for arguments ". He did not pass any order on the application filed by the complainant praying for condonation of delay in filing the complaint Further scrutiny of the order sheet shows that on 22-9-1977 the magistrate has recorded as follows " The question of limitation is left open for arguments ". ( 4 ) WHEN the appeal came up for hearing, a preliminary objection was raised on behalf of the accused that the Magistrate had no power to take cognizance of the offence as the complaint had been presented beyond the period of limitation provided by S. 468 read with S. 469 Cr P. C. and as such the proceeding before the Magistrate stood vitiated and therefore, this appeal is incompetent. ( 5 ) THE learned State Public Prosecutor contended that in view of sub-section (3) of s. 470 Cr. P. C. the time required for obtaining the consent or sanction of the Commissioner of Labour is to be excluded while computing the period of limitation and when that time is excluded, it will be seen that the complaint had been filed, by the complainant, well within the time prescribed by S. 468 of the Cr. P. C. He brought to our notice the order dated 12-4-1976 (Ex. P-4) passed by the Commissioner of labour. ( 6 ) SUB-SECTION (3) of S. 470 Cr. P. C. reads as follows : 'where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation.-In computing the time, required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the government or other authority shall both be excluded. ' (underlining italics is ours ). Plain reading of the aforesaid provision makes it manifest that the law for the time being in force should make obtainment of such previous sanction or consent to prosecute, under that law, a condition precedent. The law in question is the Act. ' (underlining italics is ours ). Plain reading of the aforesaid provision makes it manifest that the law for the time being in force should make obtainment of such previous sanction or consent to prosecute, under that law, a condition precedent. The law in question is the Act. The only provision which can be said to refer to such an aspect is in S. 34 of the act and it reads as follows :"34. (1) No court shall take cognizance of any offence punishable under this act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government. (2) No court inferior to that of a presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act". (underlining italics is ours ). It is plain that the section does not say that institution of any prosecution for an offence under the Act is to be made after obtaining the previous consent or sanction of the Government or any other authority. The wordings of the section are analogous to the wordings of S. 195 of the Cr. P. C. S. 190 (1) of the Cr. PC. empowers Magistrates to take cognizance of offences. S. 190 (1) (b) of the Cr. P. C. provides for taking of cognizance by the Magistrate on the basis of a complaint. ' Complaint' is defined in S. 2 (d) of the Cr. P. C. S. 195 of the Cr. P. C. lays down that complaints of only such persons as enumerated therein in regard to the offences narrated therein are to be taken notice of by the Magistrates for taking cognizance, This is quite different from obtainment of sanction or consent. Similar is the effect of S. 34 of the act. ( 7 ) THE order dt. 12-4-1976 of the commissioner of Labour, only authorises the Labour Officer viz. , the complainant, to institute prosecution. ( 8 ) OBTAINING of consent or sanction of an appropriate authority before instituting prosecution pre-supposes that the authority instituting prosecution has the power to do so, but is in law, required to exercise it, only after obtaining consent or sanction of an appropriate authority higher to the authority, which is of the opinion, that the prosecution is to be instituted. Hence, the question of obtaining consent or sanction fro n the Commissioner of Labour by the complainant does not at all arise. In the result, sub-sec. (3)of S. 470 of the Cr. P. C has in our opinion, no application to the facts of this case. ( 9 ) THE records show, as already stated by us that on 6-10-1976 itself the complainant had filed an application praying for condonation of delay and the magistrate has not considered that application, but, on the other hand, has recorded in the order sheet dt. 22-9-1977 that the question of limitation was left open for arguments. ( 10 ) S. 473 of the Cr. P. C. lays down as follows:"notwithstanding anything contained in the foregoing provisions of this chapter, any Court may take cogninance of an offence after the expiry of the period of limitation, if 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 so to do in the interest of justice". S. 468 (1) of the Cr. P. C. reads as follows:"468 (1)-EXCEPT as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the category specified in sub-sec. (2) after the expiry of the period of limitation". There is no dispute that the complaint has been filed after the expiry of the period of limitation. Reading of the aforementioned provisions leaves no doubt in our mind that if, in a case where the period of limitation has expired, the Court has to consider, if so required, the question of extending the period of limitation in accordance with the provisions of Sec. 473 of the Cr. P. C. and come to a decision. If the decision is in the affirmative, then its power to take cognizance of the offence complained of can be exercised. If the decision is in the negative, the power of the Court to take cognizance of the offence cannot be exercised. The question as to whether the period of limitation should be extended or not cannot be reserved for argument and cognizance of the offence taken, because without taking cognizance of the offence in accordance with the provisions of law, the Court will not have the necessary power to issue process against the accused and try the case. The question as to whether the period of limitation should be extended or not cannot be reserved for argument and cognizance of the offence taken, because without taking cognizance of the offence in accordance with the provisions of law, the Court will not have the necessary power to issue process against the accused and try the case. Hence, what has been done by the Magistrate in trying this case is not in accordance with law and the same is not covered by sec 461 of the Crl. P. C. , because sec. 461 (k) deals with taking cognizance of the offence under clause (c) of sub-section (1) of section 190 of the Cr. P. C. and does not deal with taking cognizance of the offence under clause (b) of sub-section (1) of section 190 of the Cr. P. C. Clauses (a) and (b) of sub-section (1) of section 190 of the Cr. P. C. are subject matters of section 460 (e) of the Cr. P. C It cannot be argued that in view of section 460 of the Cr. P. C what has been done by the Magistrate is an irregularity that is cured because the Magistrate has erroneously in good faith committed this act. We are of this view because of the wording "if any Magistrate not empowered by law to do any of the following things, namely" under section 460 of the Cr. P. C. In regard to section 468 of the Cr. P. C. , it cannot be said that the Magistrate concerned is not empowered by law to take cognizance. Magistrates are empowered by section 190 of the Cr P. C. to take cognizance of the offence. What section 468 Cr. P. C. does is to curtail that power or restrict that power. Therefore, the J. M. F. C. Chickmagalur, though empowered by law to take cognizance of the offence in question could not have done so because of the expiry of the period of limitation. Hence, section 460 of the Cr P. C. is not applicable. When neither section 463 nor section 461 of the cr. P. C. is applicable, the only conclusion that follows is that the proceedings are vitiated. ( 11 ) IN view of the foregoing, we hold that the proceedings of the Judicial magistrate First Class, Chickmagalur, in C. C. No. 381 of 1977 are vitiated. When neither section 463 nor section 461 of the cr. P. C. is applicable, the only conclusion that follows is that the proceedings are vitiated. ( 11 ) IN view of the foregoing, we hold that the proceedings of the Judicial magistrate First Class, Chickmagalur, in C. C. No. 381 of 1977 are vitiated. Hence we allow the appeal, set aside the judgment of acquittal passed by the Principal Judicial magistrate First Class, Chickmagalur, in cc. No. 381 of 1977 and remit the case to the Court of the said Magistrate. We direct the Magistrate to consider the application dated 6-10-1976 filed by the Labour officer-complainant in the light of the provisions in section 473 of the Cr. P. C. and then proceed to dispose of the case according to law. --- *** --- .