B. N. Ojha v. State Of Bihar — 1987 DIGILAW 260 (PAT)

Judgment Ramnandan Prasad, J. 1. These two applications under Sec.482 of the code of Criminal Procedure (hereinafter referred to as the Code) have been heard together, as common questions of law are involved therein and the parties are also common, the only difference is with regard to the period for which the prosecutions have bee i launched. 2. Both these applications are directed against the orders dated 10-10-77 by which the Chief Judicial Magistrate of Bettiah has taken cognizance against the petitioners for an offence punishable under Sec.14-AC (1) of the employees Provident Funds and Miscellaueous Provisions Act, 1952 (hereinafter referred to as the Act ). It appears that complaints in both the cases Were filed on the same day on 10-10-1977 and cognizance was also taken on the same day. In Cr. Misc. No.8794 of 1982 the allegation was that the Bettaih Power House, which is an Establishment within the meaning of the Act, failed to furnish monthly returns for the months of March 1976, April and May 1976 as required by paragraph No.36 (2) of the Employees Provident Funds Scheme (hereinafter referred to as the Scheme) which is punishable under paragraph No.76 (b) of the Scheme read with Sec.14 (2) of the Act. Similarly, in the other case, to with Cr. Misc. No.8795 of 1982 the prosecution was for non-submission of the said returns by the same establishment for the months March, April and May, 1972. It has been alleged in both the cases that the petitioners are the persons-in-charge of the said Bettiah Power House and were responsible for the conduct of its business. After service of summons the petitioners filed a petition before the trial court their discharge on the ground that their prosecution was barred by limitation and also for want of valid sanction for their prosecution. The learned magistrate by his order dated 6-8-1982 has rejected their petition in both the case and the petitioners have come up to this Court for the same relief. 3. The petitioners have also filed a supplementary affidavit on 23-7-1987 in which it has been stated that the Board has already filed returns and deposited the amount of arrears of the Bettiah unit on 25-2-1981. 4. Learned counsel for the petitioners has urged three grounds in support of the applications. 3. The petitioners have also filed a supplementary affidavit on 23-7-1987 in which it has been stated that the Board has already filed returns and deposited the amount of arrears of the Bettiah unit on 25-2-1981. 4. Learned counsel for the petitioners has urged three grounds in support of the applications. His first ground is that the prosecution of the petitioners was-batred by limitation and as such the learned Chief Judicial Magistrate should not have taken cognizance on the basis oi these complaints. As said above, bot the complaint petitions were filed before the learned Chief Judicial Magistrate on 10-10-1977 and the cognizance was also taken on the same date. Evidently, the offence alleged against the petitioners was of non-filing of the return as required under Paragraph No.36 (2) of the Scheme in one case for the months of March, april and May 1972 and in the other for the same months of the year 1976. Paragraph No.36 (2) of the Scheme provides that every employer shall send to the commissioner within fifteen days of the close of each month a return in the forms prescribed therein. So, these returns were to be filed within fifteen days of the close of each month. As said above, in one case the return had to be filed for the months of March, April and May 1972 and in the other for the same months of 1976. So, these returns had to be filed by 16th April, 16th May and 16th June 1972, and 1976 respectively. 5. As pointed out above, the alleged offence is punishable under Sec.14 (2) of the Act, which is as follows :- "subject to the provisions of this Act the Scheme (the Family Pension scheme or the Insurance Scheme) may provide that any person who contravenes or makes in default in complying with any of tae provisions thereof shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. " So, the maximum punishment prescribed for this offence is imprisonment for a term of six months or with fine which may extend to one thousand rupees or with both. No limitation has been prescribed under this Act for lanuching prosecution and so it will be governed by the general provision of the Code of Criminal Procedure. " So, the maximum punishment prescribed for this offence is imprisonment for a term of six months or with fine which may extend to one thousand rupees or with both. No limitation has been prescribed under this Act for lanuching prosecution and so it will be governed by the general provision of the Code of Criminal Procedure. Sec.468 of the Code runs 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-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. " It is apparent from sub-section (2) (b), quoted above, that limitation of one year has been prescribed for the offences punishable with imprisonment for a term not exceeding one years. Since the maximum punishment prescribed for the offence under consideration is imprisonment for a term of six months only, the period of limitation for taking cognizance of this offence would be one year. Sec.469 of the Code prescribes the manner in which the period of limitation has to be computed. This section is as follows :- "469. (1) The period of limitation, in which (sic) an offender, shall commence:- (a) on the date of the offence ; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge oi such person or to any police officer, whichever is earlier ; or (c) where it is not known by whom the offence was committed, the lirst day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded. " Obviously, sub-sections 1 (b) and 1 (c) are not attracted in this case. (2) In computing the said period, the day from which such period is to be computed shall be excluded. " Obviously, sub-sections 1 (b) and 1 (c) are not attracted in this case. It is not the case of the opposite party that the commission of the offence was not known or it was not known by whom the offence was committed. So, apparently sub-sections 1 (a) and (2) will only be attracted in the present case and the period of limitation shall commence on the date of the offence and in computing this period of limitation the day from which such period shall be excluded.5. In the present case the last offences to one case was completed on 15th june, 1972 and in the other case on 15th June, 1976. So, evidently the cognizance for these offences could be taken within one year of the commission of these offences i. e. in one case the limitation would expire on ;6th June 1973 and in the other on 16th June, 1977. After these dates the learned Magistrate could not take cognizance in view of the provision of Sec.468 of the Code, as in neither of the two cases the period of limitation has been extended by the court under Sec.473 of the Code. So, prima facie, the cognizance in these two cases in bared by limitation, as the cognizance in both the cases were taken on 10-10-1977 i. e. long after the expiry of one year period of limitation. 6. The submission of the learned counsel for the opposite party, however, is that the offence in question is a continuing offence and as such a fresh period of limitation shall begin to run at every moment of the time during which the offence continues, as laid down in Sec.472 of the Code. So, the main question which arises for determination on the question of limitation is as to whether the offence is a continuing offence or not, as it is the admitted position that the cognizance was not taken within one year of the commission of the offence. The expression continuing, offence has not been defined in the Code. So, the main question which arises for determination on the question of limitation is as to whether the offence is a continuing offence or not, as it is the admitted position that the cognizance was not taken within one year of the commission of the offence. The expression continuing, offence has not been defined in the Code. The distinction between continuing offence and non-continuing offence has been illustrated by the highest court in the case of State of Bihar V/s. Deokaran Nanshi and another, AIR 1973 SC 908 , which was followed in Bhagirath Kanoria and others V/s. Bahadur Singh, 1984 BBCJ (SC) 174 the following observation of the supreme Court in the case of State of Bihar V/s. Deokaran Nashi, (supra) would help in determining as to what is continuing offence and whether the offence under consideration would be a non-continuing offence :- "5. Continuing offence is one which is susceptiable 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, aud recurs, there is the offence committed. The distinction between the two kinds of offences is betvveen an act or omission which constitutes an offence once and for all and aa act or omission which continues and, therefore, constitutes a fresh offeuce 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. " 7. Evidently, the offence of non-filing of the return is complete on the day which is the last day for filing the return. It cannot be said to be a continuing offence, as the accused was not at liberty to file the return after that date. The position would, of course be different in the case of non-payment of the contribution under the Scheme which would be evidently a continuing offence as the offence of non-payment is continuing until the payment is made. It cannot be said to be a continuing offence, as the accused was not at liberty to file the return after that date. The position would, of course be different in the case of non-payment of the contribution under the Scheme which would be evidently a continuing offence as the offence of non-payment is continuing until the payment is made. But, this is not the position with regard to the furnishing of return, as this offence is complete once for all as soon as the default occurs in furnishing the return by the prescribed date. In this view of the matter, the impugned order of cognizance in both the cases would be obviously barred by limitation, as the offence under consideration is not a continuing offence. 8. Reliance was, however, placed by Mr. Pradhan who appeared for opposite party No.2, on the decision of the Supreme Court in the case of bhagirath Kanaria (supra) and a Full Bench decision of this Court in Ram Kripal prasad V/s. State of Bihar, 1985 PLJR 21. It would be unnecessary to consider these two decisions in detail, as, evidently, the prosecution in these cases were for non-payment of the contribution under the Scheme and not for non-filing of the return by the prescribed date. As said above, the non-payment of contribution under the Scheme is a continuing offence and indeed it has been categorically stated so in these two decisions But, there is nothing in these two decisions to indicate that failure to furnish the return by the prescribed date would also be a continuing offence. Indeed, this aspect of the matter has been considered by the Supreme court in the case of State of Bihar V/s. Deokaran Nansi, (supra) and it has been finally laid down that the offence would be complete once for all as soon as a default occurs in furnishing the return by the prescribed date. In that case, which was for prosecution for non-filing of the return by the prescribed date of course, under a different Act, the highest court held that the complaint was time barred as the offence in question fell within the substantive part of Sec.79 of the mines Act and not the Explanation attached to it which dealt with continuing offence. 9. 9. In view of the discussions made above, I have no hesitation in holding that the offence under consideration in the present two cases is not a continuing offence and as such the cognizance taken in these two cases must be held to be bad for being time-barred, and on this ground alone these applications will succeed. 10. In the next place it was contended by the learned advocate for the petitions that the petitioners could not be prosecuted unless the Electricity Board or the Bettiah Power House was also made an accused in this case. It was contended that in view of the provision of Sec.14 (1) of the Act it was incumbent on the opposite party No.2 to make the Electricty Board also an accused along with the petitioners, as the expression company which has been define in the Explanation would include the Bihar State Electricity board also. This section is as follows:- "14. Offences by companies.- (1) If the person committing an offence under this Act (the Scheme or the Family Pension Scheme or the insurance Scheme is a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. " It is, however, difficult to accept this submission, as there is nothing in the language of this section to indicate that no body could be prosecuted unless the company or the Board was also made an accused. Indeed, this section is an enabling provision and it simply lays down the circumstances under which persons other than the company could be prosecuted along with the Company and it does not go to the extent that the Company must be made an accused for prosecuting the other accused persons. It is up to the prosecutor to choose whether to prosecute the Company also or not. The prosecution could prosecute the Company and lever others and could also prosecute other persons who come within the mischief of this section and allow the Company to go scot free. It is up to the prosecutor to choose whether to prosecute the Company also or not. The prosecution could prosecute the Company and lever others and could also prosecute other persons who come within the mischief of this section and allow the Company to go scot free. There is nothing in the section to indicate that the prosecution of other persons who come within the mischief of this section would become illegal if the Company is not prosecuted. It would be unnecessary for me to dilate on this aspect of the matter further, as the matter has been set at rest by a Full Bench decision of this Court in the case of Badri Prasad Gupta V/s. State of Bihar, 1986 BLJR 244 . In that case the interpretation of Sec.35 of Bihar Shops Establishment Act, 1953, which is at pan materia with Sec.14 (1) of the Act was under consideration and similar argument was advanced that the prosecution of the petitioners of that case was illegal, as the Company itself was not made an accused in the case. Following the decision of the Supreme Court in the case of Sheo Ratan Agrawal and another V/s. State of Madhya Pradesh, AIR 1984 SC 1824 it was held by the Full Bench that section 35 of the Act did not require that the Company or the partnership firm must be airayed simultaneously along with the Director, Partner, Manager or secretary thereof for prosecution for the contravention of the Act. The Full bench relied on the following passage from the decision of the Supreme Court in the case of Sheoratan Agrawal (supra) for coming to this conclusion : "the sentences under scrored by us clearly show that what was sought to be emphasised was that there should be a finding that the contravention was by the company before the accused could be convicted and not that the Company itself would have been prosecuted along with the accused. We are, therefore, clearly of the view that the prosecutions are maintainable and that there is nothing in Sec.10 of the essential Commodities Act which bars such prosecution. We are, therefore, clearly of the view that the prosecutions are maintainable and that there is nothing in Sec.10 of the essential Commodities Act which bars such prosecution. " In the present case, the contravention of the provision of the Scheme was made by the Bettiah Power House, a unit of the Bihar State Electrictity Board, but it could not be said that the prosecution of the petitioners was not maintainable if the Board itself or the power House was not made an accused. 11. So, the second submission of the learned counsel is not acceptable, either on principle or on precedent, and it is, accordingly, held thai there was no legal bar to the prosecution of the petitioners even if the Bihar State Electricity board or Bettiah Power House has not been made an accused along with them. 12. In the third place it was contended that there was no valid sanction for the prosecution of the petitioner. I am really unable to appreciate this submission at this stage. It is the undisputed position that the prosecution of the petitioners in both the cases was sanctioned by the appropriate authority i. e. the regional Provident Fund Commissioner, Bihar, Patna, and the sanction order was attached with the complaint petition in both the cases. The submission of the learned counsel was that this sanction order does not show proper application of mind and in the absence of valid sanction the petitioners could not be prosecution in view of Sec.14-AC of the Act. This section lays down as follows : "14. AC. Cognizance and trial of offences.- (1) No court shall take cognizance of any offence punishable under this Act, the scheme or the Family Pension Scheme or the Insurance Scheme except on a report in writing of the facts constituting such offence made with the previous sanction of the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the official Gazette, in this behalf, by an inspector appointed under Sec.13. " 13. In my opinion, the validity or otherwise of the sanction order has to be considered at the time of trial on the basis of the evidence adduced in the case and it would be too much for this Court to say at a mere look of the sanction order that it is not valid at all. " 13. In my opinion, the validity or otherwise of the sanction order has to be considered at the time of trial on the basis of the evidence adduced in the case and it would be too much for this Court to say at a mere look of the sanction order that it is not valid at all. I have perused ths sanction order and do not find any material irregularity which would render the sanction order invalid exfacie. On behalf of the petitioners reliance was placed on he Supreme Court decision in the case of Ram Kumar V/s. State of Haryana, 1987 BBCJ 29 . But, in my opinion, this case law is wholly misplaced as it can have no application to the facts of the present case. The question which arose for decision before the supreme Court was whether the sanction under Sec.132 of the Code of criminal Procedure would cover sanction under Sec.197 (1) of the Code. I am, however, not concerned at all with this aspect of the matter in the present case. In my opinion, the cognizance taken in these two cases cannot be quashed on the ground of invalidity of the sanction order, as this aspect of the matter has to be investigated at the time of trial. Sec.14-AC (1) of the Act simply requires previous sanction of the Central Provident Fund Commissioner or such other officers as may be authorised by the Central Government in this behalf. On the present case, as said above, sanction order has already been attached to the complaint petition of both the cases and it will be for the trial court to decide at the time of trial as to whether these sanction orders are valid or not. There can be no question of quashing the cognizance on the ground of invalidity of the sanction order at this stage without going into the evidence which may be adduced in the case on this point. 14. In view of the discussions made above, the second and third grounds urged on behalf of the petitioners must fail, but both the applications succeed on the first point which relates to limitation. As the prosecutions of the petitioners have been held to be time-barred, the cognizance taken against them in both the cases must be held to be illegal. In view of the discussions made above, the second and third grounds urged on behalf of the petitioners must fail, but both the applications succeed on the first point which relates to limitation. As the prosecutions of the petitioners have been held to be time-barred, the cognizance taken against them in both the cases must be held to be illegal. The orders taking cognizance in both the cases have, therefore, to be quashed and are, accordingly, quashed. Both the applications are, therefore, allowed.