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2010 DIGILAW 390 (JHR)

Badal Kumar Ghosh v. State Of Jharkhand

2010-03-29

RAKESH RANJAN PRASAD

body2010
JUDGMENT : R.R. Prasad, J. This writ application has been filed for quashing the entire criminal proceeding of Complaint Case No. 2758(M) of 2002 (T.R. No. 1865 of 2006) pending in the court of Judicial Magistrate, 1st Class, Ranchi including the order dated 26.11.2002 whereby the Chief Judicial Magistrate, Patna took cognizance of the offence u/s 85(a) of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the Act'). 2. It appears that petitioner's sweet meat shop being run in the name and style of 'Sweet Corner' at Ashok Nagar, Ranchi when was inspected by the Insurance Inspector in the month of December, 1999, it was found that the employer had engaged 12 employees in the process of manufacturing of sweet meat in his shop falling within the definition of 'factory' as defined in Section 2(12)(a) of the Act and as such, the employer was liable to pay contribution for the employees for the period from April, 1999 to 30.9.2001 u/s 40 read with Section 39 of the Act within the time prescribed but no such contribution had been deposited with the said insurance and, therefore, a complaint was lodged in the court of Chief Judicial Magistrate, Patna alleging therein that on account of non-deposit of the contribution, the petitioner committed offence u/s 85(a) of the Act. Upon which, cognizance of the offence was taken by the Chief Judicial Magistrate, Patna on 26.11.2002 u/s 85(a) of the Act against the petitioner. 3. In course of time, under the order of the Patna High Court, an order was passed on 4.7.2006 by the Chief Judicial Magistrate, Patna to transfer the case to the court of competent jurisdiction of the State of Jharkhand. Thereupon record was received in the court of Chief Judicial Magistrate, Ranchi on 2.8.2006. Thereafter the petitioner on receiving notice, appeared in the case and then police paper was supplied to the counsel appearing for the petitioner. Thereupon, substance of accusation was explained on 7.2.2007 to which the accused pleaded not guilty and claimed to be tried. 4. However, subsequently, an application was filed on behalf of the complainant praying therein to frame charge against the petitioner. A rejoinder to that application was filed on behalf of the petitioner. Thereupon, substance of accusation was explained on 7.2.2007 to which the accused pleaded not guilty and claimed to be tried. 4. However, subsequently, an application was filed on behalf of the complainant praying therein to frame charge against the petitioner. A rejoinder to that application was filed on behalf of the petitioner. After hearing, the court did find that vide its order dated 22.5.2007 that sufficient materials are there to frame charge u/s 85(a) of the Act and hence, directed the petitioner to appear physically so that charge be framed. But the petitioner instead of appearing physically before the court below, filed an application under Article 226 of the Constitution of India after almost one and half year before this Court on 4.2.2009 whereby entire criminal proceeding and also the order taking cognizance were challenged. 5. Mr. G.C. Jha, learned Counsel appearing for the petitioner submits that provision of Employees' State Insurance Act, 1948 is not applicable as the petitioner, who was having sweet meat shop had never employed more than 7 employees and as such, establishment of the petitioner never comes within the definition of 'factory' as defined in Section 2(12)(a) of the Act and therefore, the entire prosecution is misconceived and the order taking cognizance is fit to be quashed. 6. Mr. Rajan Raj, learned Counsel appearing for the respondent No. 2 submits that the point raised on behalf of the petitioner cannot be subject matter for its adjudication before this Court in exercise of extraordinary jurisdiction rather raised can only be decided during trial as to whether the petitioner had engaged more than 10 employees or not in the process of manufacturing of sweet meat and that the trial court, while hearing on a petition filed on behalf of the complainant for framing of charge did find sufficient material to frame charge u/s 85(a) of the Act and instead of challenging that order, this writ application has been filed wherein order taking cognizance of the offence has been challenged and under this situation, this writ application is fit to be rejected. 7. 7. Having heard learned Counsel appearing for the parties, it does appear that it is the case of the complainant when inspection was made by the Insurance Inspector, 12 employees were found engaged by the petitioner in the sweet meat shop and as such, the petitioner under the Act was liable to pay contribution as the establishment of the petitioner falls within the definition of 'factory' as defined in Section 2(12)(a) of the Act which fact is being disputed at this stage by taking plea that the petitioner had never employed more than ten persons, rather the shop was being run with the help of 2-3 employees and rarely it exceeds 6-7 employees. This issue needs to be decided in course of the trial as the matter raised in defence cannot be taken into consideration for quashing the entire criminal proceeding. 8. Accordingly, I do not find any merit in this writ application and hence, this writ application is dismissed.