PROVIDENT FUND INSPECTOR v. MOHAMMED — 1980 DIGILAW 191 (KER)

Judgment :- 1. These Criminal Revision Petitions raising important questions of law were referred to be heard by a Division Bench by one of us, as there was direct conflict on one of the points involved between the decisions of two learned Single Judges of this Court. All these Criminal Revision Petitions arising from judgments passed by the Judicial Magistrate of I Class, Peermade in Summary Trial Cases convicting the accused have been filed challenging the inadequacy of sentence passed against the accused in the respective cases and praying for enhancement of sentence in accordance with due provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, hereinafter called the Act. The accused who is the respondent in all these Revisions is the same person, namely, the Manager, Ranimudy Division No 1, Tea Estate, Peermade, The Provident Fund Inspector, Kottayam, the complainant before the trial court is the revision petitioner in all these cases. 2. The accusations against the respondent in each of these cases were that he being the Manager of the Estate failed to pay the Provident Fund contributions and administrative charges due for the periods stated in the respective complaints and he thereby committed offences punishable under S.14 (1A) and 14 AA of the Act. There was also a prayer in the complaint that the amounts due from the respondent towards contributions and administrative charges might be realised from him under S.14 (1C) of the Act. It is said that the accused pleaded guilty to the charges and he was convicted and sentenced to pay a fine of Rs. 40/- or in default to suffer simple imprisonment for 15 days in each of these cases. 3. The learned Addl. Central Government Standing Counsel appearing for the petitioner in these revisions submitted that the sentence passed on the respondent, the accused, in all these cases, is quite inadequate; that she trial court seriously erred in overlooking the provisions in S.14 (1A) of the Act under which imprisonment is compulsory; and the provisions in S.14AA which provide for enhanced punishment and that therefore the sentence passed against the respondent in each of these cases should be enhanced in accordance with the said provisions in the Act. The counsel submitted that no opportunity was given to the prosecution to prove the previous convictions to attract the provisions in S.14AA of the Act; that the complaints in Crl.R.P. Nos.142 and 177 of 1979 are not barred by limitation; that although the complaints in the other cases (Crl.R P. Nos 171,174,175 and 178/79) are prima facie barred by limitation, the offences disclosed in the complaints having been already taken cognizance of by the trial court and as the prohibition is only for taking cognizance of the offence, it is now not open to the accused to challenge the legality of the cognizance; that the bar under S 468 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code) being one based on period of limitation does not affect the competence and jurisdiction of the court; that this is therefore only an irregularity which is curable under S 465 of the New Code; that no right is conferred on an accused under S.468 of the New Code; that taking cognizance under this section is only a matter between the prosecution and the court and that the accused is not entitled to come in or question the correctness of action under S 468 of the New Code at the stage of taking cognizance or afterwards as of right. It was also argued that in a revision for enhancement of sentence the accused cannot claim the right conferred on him under sub-section (3) of S.377 of the New Code; that he cannot as of right plead for an acquittal in a proceeding of this nature, particularly, when be is concluded by the plea of guilty entered in the case, as he cannot retract or retrace that plea in a subsequent proceeding. 4. The learned advocate appearing for the accused-respondent strongly contended that a right of appeal for enhancement of sentence has been provided for under sub-section (2) of S 377 of the New Code; that no such appeal having been filed these revisions are not maintainable in view of the express bar under sub-section (4) of S.401 of the New Code and that in any view, the respondent is entitled to acquittal in all these cases, because the Magistrate could not have taken cognizance of the offences under S.468 of the New Code as all these complaints were barred by limitation. It was argued that the revisional court could exercise all the powers of an appellate court; that the light of the respondent under S.377 is transplanted in S 386 (c) of the New Code; that therefore, in a revision for enhancement of sentence also the respondent is entitled to plead for acquittal irrespective of the fact whether he pleaded guilty to the charge or not. Regarding the plea of guilty, the counsel submitted that the mandatory provisions in S.251 of the New Code have been violated; that as the prosecution was barred by limitation there was no offence which could have been taken cognizance of against the respondent and that it was under a misconception of fact and law that the respondent happened to put forward the alleged plea. The counsel for the respondent also argued that under the New Code the High Court has no power to enhance the sentence passed on an accused in suo motu revision. 5. We shall now take up the points raised on either side, one by one. First, we shall consider the question whether these revision petitions filed by the Provident Fund Inspector praying for enhancement of sentence are maintainable or not. Under the New Code a right of appeal has been conferred on the State and Central Governments for enhancement of sentence, under S.377 which reads: "377. (1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence." A reading of the provisions in sub-section (2) of S.377 clearly shows that as far as the Central Government is concerned this power is restricted to certain categories of cases. It was argued on behalf of the respondent that the powers of investigation have been conferred under S.7 A of the Act on the Provident Fund Commissioner, the Deputy Provident Fund Commissioner and the Regional Provident Fund Commissioners to determine the amount due from any employer under any provisions of the Act and the Scheme and therefore this is a case where an appeal under sub-section (2) of S.377 should have been filed by the aggrieved party. There is absolutely no merit in this contention. 'Investigation' has been denned under S.2(h) of the New Code and this expression therefore has been used in the section with a definite meaning, in its strict legal sense and not in a loose or general sense. Subsection (2) of S.377 deals with two categories of cases, namely, those cases where investigation is conducted by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act and other cases which are investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. Under S.3 of the Delhi Special Police Establishment Act, the Central Government may by notification in the Official Gazette specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. 6. No power of investigation has been conferred on any of the officers under S.7A of the Act. There is no provision in the Act either expressly or impliedly, authorising any officer to conduct investigation into matters arising under the Act. What is contemplated under S.7A is only an inquiry to determine the amount due from any employer under any of the provisions of the Act or under the Scheme, as the case may be. There is no provision in the Act either expressly or impliedly, authorising any officer to conduct investigation into matters arising under the Act. What is contemplated under S.7A is only an inquiry to determine the amount due from any employer under any of the provisions of the Act or under the Scheme, as the case may be. Sub-section (2) makes it clear that the officer conducting the enquiry under sub-section (1) shall, for the purpose of such inquiry, have the same powers as are vested in civil court under the Code of Civil Procedure, 1908, for trying a suit in respect of matters in (a) to (d). This inquiry by no stretch of imagination, can be said to be an investigation as contemplated under sub-section (2) of S.377 of the New Code and this section cannot have any application to the cases involved in these revision petitions. The complainant in these cases is therefore entitled to file revisions under S.397 read with S.401 of the New Code for enhancement of sentence. 7. Recently the Supreme Court in Eknath Shankarrao Mukkawar v. State of Maharashtra (AIR. 1977 SC. 1177: (1977) 3 SCC. 25) had occasion to consider the question whether powers of the High Court to enhance sentence in revision have been taken away by the provision of appeal under S.377 of the New Code and in a case of conviction under the Prevention of Food Adulteration Act, 1954, whether an appeal filed by the State under S.377 (1) was competent in view of the express provision in sub-section (2) of that section. It was argued in that case that by virtue of the provision in subsection (2) of S.377, an appeal filed by the State for enhancement of sentence was not maintainable. The Supreme Court held in that case that the true test under S.377 (2) is whether the offence is investigated by the Delhi Special Police Establishment or is investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. The Supreme Court held in that case that the true test under S.377 (2) is whether the offence is investigated by the Delhi Special Police Establishment or is investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. Further, on a consideration of the various provisions in the Prevention of Food Adulteration Act, although it was noticed that some of the powers exercised by the Food Inspectors are included in the investigatory process of the police the Supreme Court was of the view that in the absence of an express provision in the Food Adulteration Act empowering the Food Inspectors to make investigation under that Act, it was not possible to hold that the Food Inspectors are empowered to make investigation under the said Act and therefore S.377 (2) was not attracted to the cases under the Food Adulteration Act. Regarding the powers of the High Court to act in suo motu revision, it was held that the New Code of Criminal Procedure has not abolished the power of the High Court for enhancement of sentence by exercising its revisional jurisdiction suo motu and that the power of the High Court in appropriate cases by exercising suo motu power of revision is still extant under S.397 read with S.401 of the New Code in as much as the High Court can by itself call for the record of proceedings of any inferior criminal court under its jurisdiction. 8. In Kadir Khan v. The State ((1975) 2 SCC. 406) it was held that S.377 of the New Code does not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases and that S.401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extra-ordinary comes to the knowledge of the High Court and that provisions under S 40! read with S.386 (c) (iii) are supplemental to those under S 377 of the New Code. 9. read with S.386 (c) (iii) are supplemental to those under S 377 of the New Code. 9. In Bachan Singh v. State of Punjab ((1979) 4 SCC 754), a Bench of the Supreme Court held that a revision petition by a private party under S.401 of the New Code for enhancement of sentence was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under S.377 of the New Code; that the power of the High Court in revision under S.401 in any proceeding the record of which has been called for by it or which otherwise comes to its knowledge, includes the power conferred on a court of appeal under S.386 to enhance or reduce the sentence. In Bachan Singh's case, an appeal was filed by the accused persons against their convictions and sentences before the High Court; while the State filed an appeal against their acquittal of the offence under S.302 IPC. An aggrieved private party also filed a revision petition under S.401 for enhancement of sentence. 10. The point in dispute is now resolved by the authoritative pronouncement of the Supreme Court in the above mentioned cases. The revisions filed in these cases by the complainant, the Provident Fund Inspector, are therefore maintainable. 11. The learned advocate appearing for the respondent also urged that under the New Code the High Court has no power to enhance sentence in a suo motu revision. S.401 of the New Code corresponds to S.439 of the Old Code. Under sub-section (I) of S 439 of the Old Code, the High Court has been given power to exercise any of the powers conferred on a court of appeal and also the power to enhance the sentence Under sub-section (1) of S.401 of the the New Code, it was argued, the power to enhance sentence has not been given and that has been deliberately taken away. No doubt the words "and may enhance the sentence" in sub-section (1) of S 439 do not find a place in sub-section (1) of S.401. Although it has not been expressly stated in sub-section (1) of S.401, it is clear from the section that the High Court has been empowered to exercise in revision any of the powers conferred on a court of appeal by Ss 386, 389, 390 and 391 or on a Court of Session by S.307. Although it has not been expressly stated in sub-section (1) of S.401, it is clear from the section that the High Court has been empowered to exercise in revision any of the powers conferred on a court of appeal by Ss 386, 389, 390 and 391 or on a Court of Session by S.307. Under S.386(c)(iii) power to enhance sentence has been expressly conferred. Therefore the contention that in view of the introduction of S.377, the High Court has no power to act in suo motu revision and enhance the sentence passed against an accused has no merit. The wording of S 401(1) itself shows that the power of the High Court to act in suo motu revision has been preserved and not been taken away in the New Code. The decisions of the Supreme Court referred to above give a complete answer to this argument. So far as the powers of the High Court are concerned, there is no difference between a revision filed by a private party or a revision taken suo motu. 12. Having found that the revision in question is maintainable, the next point for consideration is whether in a revision for enhancement of sentence the respondent-accused is entitled to plead for his acquittal or for reduction of sentence. The argument of the counsel for the petitioner on this point is two-fold According to him, this is a right given to the accused under subsection (3) of S.377 of the New Code only in an appeal filed under that section and there is no similar right given under S, 401 of the New Code, although such a right had been given under sub-section (6) of S.439 of the Old Code. The other argument advanced was that even if it is assumed that the accused has such a right in a revision also, the respondent in all these cases who has pleaded guilty is concluded by his plea and he cannot be allowed to retract his plea. 13. The other argument advanced was that even if it is assumed that the accused has such a right in a revision also, the respondent in all these cases who has pleaded guilty is concluded by his plea and he cannot be allowed to retract his plea. 13. Revision is not a right as an appeal which is a creature of the statute, but, the revisional powers of the High Court are very wide Under the Old Code there was no power conferred on the State Government or the Central Government to file an appeal for enhancement of sentence and the remedy in this respect was only by way of a revision as provided for under sub-section (1) of S.439 of the Old Code. Under sub-section (6) of S 439 of the Old Code, any convicted person to whom an opportunity has been given under sub-section (2) for showing cause why his sentence should not be enhanced was entitled also to show cause against his conviction It is true that there is no provision in S.401 of the New Code corresponding to sub-section (6) of S.439 of the Old Code. But such a provision is made in sub-section (3) of S.377 of the New Code. S.386 deals with powers of the appellate court. Under subsection (c)(i), in an appeal for enhancement of sentence, the appellate court can reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence and under clause (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same Under S.401, the High Court can in a revision in its discretion, exercise any of the powers conferred on a court of appeal under S.386, 389, 390 and 391. The Law Commission of India in its 41st Report, while considering suggestions for modifications and amendments to S.439 of the Old Code, referring to sub-section (6) of S.439 which gave a right to a convicted person in a revision for enhancement of sentence to plead for his acquittal also, stated that the principle underlying this rule is sound, but as they were separately providing for enhancement of sentence through an appeal, this sub-section would be redundant and therefore they proposed to omit the same (See page 289, Law Commission of India. 41st Report. Vol I). S.401 read with Ss 377 and 386 in the light of the Report of the Law Commission of India, makes it clear that in a revision for enhancement of sentence the accused can also plead for his acquittal or for the reduction of his sentence. The right conferred under sub-section (3) of S.377 can be read into S.386 of the New Code The framers of the New Code could not have intended to make or cause any discrimination between an accused against whom a revision for enhancement of sentence has been tiled and an accused against whom an appeal for enhancement of sentence has been filed. It does not appear to be the intention of the legislature to deprive an accused of the right given to him under sub-section (3) of S.377 in a revision filed against him for enhancement of sentence. In a revision for enhancement of sentence, revisional court can exercise the powers as if it were an appeal under S.377 Cr. P.C. In any view, as stated earlier, the High Court can in its discretion in a revision in exercise of the powers under S.386 (c) (i)" reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence. The counsel for the petitioner did not dispute the right of this Court in revision to go into the question whether the conviction of the accused was right or not and acquit him; but his contention was that the respondent-accused has no right to plead for an acquittal, as in an appeal under S.377. The counsel for the petitioner did not dispute the right of this Court in revision to go into the question whether the conviction of the accused was right or not and acquit him; but his contention was that the respondent-accused has no right to plead for an acquittal, as in an appeal under S.377. Now the whole matter is before this Court in revision and while considering the legality of the sentence, there is nothing preventing this Court, for doing justice, in examining the materials on record to find whether the conviction entered against the respondent was legal or not, irrespective of the plea of guilty entered by the respondent-accused in these cases. 14. The counsel for the petitioner relied mainly on the decision of the Calcutta High Court in Superintendent. Legal Affairs v. Janendra Nath (AIR. 1929 Cal. 747) in support of his contention. That was a case where the Superintendent and Remembrancer of Legal Affairs, Bengal, representing the State, sought enhancement of the sentence of the accused persons in a criminal revision filed in that behalf in exercise of the powers under S.439 of the Old Code. There was a difference of opinion on the effect of sub-section (6) of S.439 of the Old Code between Mukerji and Graham JJ. who constituted the Division Bench which heard the revision. Graham J. was of the view that sub-section (6) of S.439 was applicable only where the accused has been convicted on evidence and that the only circumstance in which it would be open to an accused to go behind the plea and reopen the matter of his conviction would be where he could show that there was some mistake in recording the plea, and that he did not in fact plead guilty While Mukerji J. held that the plea of "guilty" is a plea to the charge and does not necessarily amount to a confession of all the facts alleged; that the plea operates as a bar in certain cases to the preferring of an appeal except as to the extent and legality of the sentence; but when called upon to show cause why his sentence should not be enhanced, the accused has a right to show cause against his conviction and that S.439(6) does not make any exception as regards the case of a person who has been convicted on his own plea. In view of this difference of opinion, the matter was placed before Buckland J, a third judge, who held that the accused cannot go behind his plea of "guilty" and that he cannot show cause against bis conviction when enhancement of sentence is sought for 15. The scope and effect of sub-section (6) of S.439 of the Old Code was considered by a Bench consisting of three eminent judges of the Supreme Court in U.J.S. Chopra v. State of Bombay (AIR. 1955 SC. 633) where it was held that sub-section (6) confers a new and a very valuable right on the subject which is designed to be a safeguard against the State or other interested person making frivolous revision application for enhancement of sentence and that the State or the person interested must, if they ask for as enhancement of sentence, be prepared to face the risk of the accused being altogether acquitted Various decisions of the High Courts including that of the Calcutta High Court in Superintendent, Legal Affairs v. Janendra Nath (AIR. 1929 Cal. 747) have been noticed in this case by the Supreme Court. With great respect, we do not agree with the decision of the Calcutta High Court, although we are in respectful agreement with the views expressed by Mukerji J. In view of the decision of the Supreme Court referred to above this decision of the Calcutta High Court is no more good law. On the leading principles enunciated by the Supreme Court in Chopra's case (AIR, 1955 SC. 633), the right of an accused to plead for an acquittal is the price or 'quid pro quo' which the State or other interested person must be prepared to pay for the right or privilege of making an application in revision for enhancement of sentence. The right to show cause against his conviction and plead for an acquittal is a valuable weapon of defence given to an accused who has been placed in a fresh jeopardy by reason of an application for enhancement of sentence having filed against him and notice having been issued calling upon him to show cause against enhancement of sentence. 16. The counsel appearing for the respondent in these petitions also submitted that the plea of guilty said to have been recorded is not legal, valid and genuine, as the mandatory provisions in S.251 Cr. 16. The counsel appearing for the respondent in these petitions also submitted that the plea of guilty said to have been recorded is not legal, valid and genuine, as the mandatory provisions in S.251 Cr. P. C. (admittedly the cases in all these revision petitions are summons cases) have been flagrantly violated. The counsel pointed out that the particulars of the offence have not been put or stated to the accused; that there is nothing on record to show that the complaint was read out and the ingredients of the offence alleged therein explained to the respondent and that therefore the trial has been vitiated and the plea of guilty entered cannot be taken into consideration. Under S.251 Cr. P. C. the particulars of the offence must be stated to the accused. A mere reading of the charge or the complaint as such will not be sufficient compliance of the section. The ingredients of the offences stated in the charge or the complaint as the case may be, must be read out and explained to the accused person. Records do not show that the trial magistrate has complied with the salutary and mandatory provisions in S.251 Cr. P. C. in any of these cases. On going through the records we are constrained to remark that the trial in these cases have been conducted in a very perfunctory and unsatisfactory manner that even the proper section has not been stated in the order convicting the accused. In one of these cases, it was under S.13 of the Act that the accused was convicted. S.13 of the Act deals with appointment of Inspectors and their powers. The complaints in all these cases are in English and running into more than one page. In all these complaints conviction is sought under S.14(1A) and S.14AA. S.14AA provides for enhanced punishment in the case of previous convictions. No question is seen put to the accused regarding the previous conviction and no opportunity also has been given to the prosecution to prove the previous convictions. Records in the cases only show that a charge has been read over to the accused. There is no such charge seen in the records. All these cases were tried summarily and in a summons case it is not necessary to frame a formal charge. Records in the cases only show that a charge has been read over to the accused. There is no such charge seen in the records. All these cases were tried summarily and in a summons case it is not necessary to frame a formal charge. As deterrent punishments are prescribed under the Act, the magistrate should not have treated these cases lightly and acted in a slip - shod manner. This apart, if the prosecution was barred by virtue of the provision in S.468 Cr. P. C., the conviction even if it is assumed there was proper compliance of S.251 Cr. P. C. was unsustainable. Therefore, in view of the illegality committed in this regard the convictions in all these cases have to be interfered with. 17. The further point for decision is whether the accused in these cases are entitled to an acquittal or whether a re-trial is to be ordered in all these cases. As we have already stated the contention of the respondent in most of these cases is that the trial court should not have taken cognizance of the offence or offences in view of the bar under S.468 of the New Code. On behalf of the petitioner it was vehemently argued that the Law of Limitation is only an adjective or procedural law and not a substantive law; that it relates only to remedies and that what is barred is only the remedy and not the right and therefore the bar under S.468 of the New Code does not affect jurisdiction Another argument advanced is that no right is conferred on an accused under S.468 of the New Code; that taking cognizance is only a matter between the court and the prosecution and that therefore when once cognizance has been taken by a magistrate, an accused has no right to question its legality or validity. S.468 reads: "468. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. S.468 reads: "468. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years." 18. There was no period of limitation prescribed for taking cognizance of an offence under the Old Code. A new Chapter, Chapter XXXVI, was introduced in the New Code prescribing periods of limitation for launching a criminal prosecution in certain categories of cases. The Chapter consists of S.467 to 473. S.467 defines "period of limitation" as the period specified in S.468 for taking cognizance of an offence. S.469 states when the period of limitation in relation to an offender shall commence. S.470 and 471 speak of how period of limitation has to be computed. S.472 states that in the case of continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Under S.473, the court may take cognizance 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 interests of justice. This new Chapter was introduced in the Code in the interest of administration of justice with a view to put pressure on the organs of criminal prosecution to make all efforts to ensure the detection and punishment of the crime quickly and also to shut out belated prosecutions and save an accused from unnecessary harassment and from the risk of facing a trial at a time when his evidence might have been lost due to the delay on the part of the prosecution. On account of the inordinate delay in the prosecution, the evidence of witnesses becomes weaker and uncertain due to lapse of memory. On account of the inordinate delay in the prosecution, the evidence of witnesses becomes weaker and uncertain due to lapse of memory. One of the grounds given by the Law Commission for introducing this Chapter is that the sense of social retribution which is one of the purposes of criminal law loses its edge after the expiry of long period. 19. it is clear from the language of S.468 that there is a legislative interdiction against taking cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation, except as otherwise provided elsewhere in the Code S.195 to 199 prohibit taking cognizance of certain offences except upon a proper complaint, sanction, etc. Protection has been given to an accused person under S.468(1) Cr P. C. against belated and time barred prosecutions and this certainly is a benefit given to an accused. It cannot therefore be said that S 468 does not confer a right on an accused person to plead that an offence or offences disclosed in a complaint filed against him should not have been taken cognizance of as the prosecution was barred by limitation. We are unable to agree with the contention of the counsel for the petitioner that this is a matter purely between the magistrate and the prosecutor and the accused has no right to come in or question the legality of taking cognizance of the offence against him. At any stage in the course of enquiry or trial of the case it is open to the accused to raise the plea that the magistrate could not have taken cognizance of the offence in question in view of the bar under S.468 20. In Crl. M. P. Nos. 99,107 and 109 of 1977 one of us had occasion to consider whether a magistrate was competent to take cognizance of a complaint barred by limitation in view of the provisions in S.468 Cr P. C. and it was held that the said section constituted a legal bar to take cognizance of an offence after the expiry of the period of limitation prescribed under S.468(2) Cr. P. C. With great respect, we are unable to agree with the contrary view taken in Crl. P. C. With great respect, we are unable to agree with the contrary view taken in Crl. M P. Nos 1086, 1090, 1099 of 1978, etc Our views in this regard find full support in the decisions of the High Courts of Karnataka, Calcutta, Allahabad, Madhya Pradesh, Andhra Pradesh and Rajasthan (See Prakash Chandra v. Kaushal Kishore 1980 Crl Q. 578; Channabasappa v. State of Karnataka :1979 Crl. Q. 185; Bharat Hybrid Seeds & Agro Enterprises v. State: 1978 Crl Q. 61; Wire Machinery Mfg. Corpn. v. State: 1978 Crl. Q. 839; Krisnhan v. State of M P.:1977 Crl LJ.90; and C.R. Irani v. State: 1977 Crl. Li. 160). The Allahabad High Court has taken the view that S.468 creates an absolute bar and taking cognizance of an offence without condoning the limitation goes to the root of the jurisdiction of the court. The Calcutta High Court and the Rajasthan High Court have taken the view that the court has no jurisdiction to take cognizance of an offence after the expiry of the period of limitation prescribed The view taken by the Karnataka High Court in 1979 Crl. LJ 185. was that the court has no power to take cognizance of an offence after the lapse of the period of limitation prescribed and in State of Karnataka v. Vedavati (1978 Crl. Q. 1375) the same High Court held that by taking cognizance of an offence after the expiry of the period of limitation a valuable right which accrued to the accused was interfered with by the magistrate 21. The doubt on this point is now set at rest by an authoritative pronouncement of the Supreme Court in Surinder Mohan Vikal v. Ascharaj Lal Chopra (1978) 3 SCR. 434). It was held in this case that S.468(1) Cr. PC. prohibits every court from taking cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation and that the legislative policy behind this is to shut out belated and dormant claims in order to save the accused from unnecessary harassment and also from the risk of having to face a trial when his evidence might have been lost because of the delay on the part of the prosecutor. 22. Now coming to the facts of these cases, as indicated earlier, the cases involved in Crl. RP. Nos. 22. Now coming to the facts of these cases, as indicated earlier, the cases involved in Crl. RP. Nos. 171, 174,175 and 178/79 are admittedly barred by limitation and the offence said to have been committed in these cases is not a continuing offence There is no prayer made in any of the above mentioned complaints explaining the delay in filing the complaint or praying for extension of time under S.473 Cr. PC. No written or oral application was also made along with the complaints for condoning the delay caused in filing the complaints The delay in filing a complaint under S 468 Cr. PC. should not be condoned as a matter of course. The magistrate has to exercise his judicial discretion in condoning the delay. There is nothing on record to show that as required under S.473, the magistrate was satisfied that on the facts and in the circumstances of the case the delay has been properly explained or condoned. The magistrate has not applied his mind to the provisions in S.473 Cr PC. in any of these cases, as is clear from the records. In the circumstances, the act of taking cognizance of the offence disclosed in complaints involved in Crl. RP. Nos. 171, 174, 175 and 178/79 was without jurisdiction and was clearly illegal. This is not an irregularity curable under S.465 Cr. PC. The conviction of the accused in these cases, in any view, cannot be sustained, and they are entitled to an acquittal. We therefore set aside the conviction and sentence passed against the accused in Crl. R P. Nos. 171, 174,175 and 178/79. But as regards Crl. RP. Nos. 142 and 177/79, the position is different as there is no bar of limitation as the complaints in these cases having been filed within the time prescribed 23. On behalf of the respondent in these petitions it was submitted that the respondent has paid the amounts due and claimed in the complaints that due to financial difficulties he has given the entire estate to the employees and therefore at this distance of time it is not in the interest of justice to order a re-trial. On behalf of the respondent in these petitions it was submitted that the respondent has paid the amounts due and claimed in the complaints that due to financial difficulties he has given the entire estate to the employees and therefore at this distance of time it is not in the interest of justice to order a re-trial. Pressing for a re-trial of these two cases, the counsel for the petitioner submitted that to his knowledge the amount due and claimed in the complaints have not been paid; that he is not aware of the fact of sale of the estate and that it is only fair that the prosecution should be given an opportunity to prove the charge under S.14AA against the respondent. The counsel also submitted that if really all the dues have been paid it is open to the respondent to move the Regional Provident Fund Commissioner for withdrawal of these cases. The offence with which the accused was charged was punishable under S.14 (1A) and 14AA but the conviction entered was under S.14 without mentioning whether it is under 14 (1A) or not. No opportunity was given to the prosecution to prove the change under S.14AA. The accused also was not questioned about this. If really all the dues have been paid and the estate itself has been sold away as alleged and also considering the fact that the accused has been facing these prosecutions since 1975, we expect that the Regional Provident Fund Commissioner may seriously consider about the withdrawal of these two cases. Before taking leave of the case, we would like to point out that the prosecutions under the Act are not being conducted in a proper and satisfactory manner. This may be either due to the inexperience of or the negligence on the part of the person or persons in charge of the prosecution. The result is, a number of cases are ending in acquittal. In the result, the conviction and sentence passed against the accused in all the cases involved in these petitions are set aside and in view of the facts and circumstances mentioned above, the accused in Crl R. P. Nos. 171,174,175 and 178/79 are acquitted and those petitions are dismissed; while re trial is ordered in the cases involved in Crl. R P.Nos.142 and 177/79 and these two cases are disposed of accordingly. 171,174,175 and 178/79 are acquitted and those petitions are dismissed; while re trial is ordered in the cases involved in Crl. R P.Nos.142 and 177/79 and these two cases are disposed of accordingly. The trial court will dispose of these two cases as expeditiously as possible in accordance with law and in the light of this order.