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2019 DIGILAW 1807 (KAR)

RANDEEP MAHAJAN v. STATE OF KARNATAKA

2019-07-31

K.SOMASHEKAR

body2019
JUDGMENT K Somashekar, J. - Heard the learned counsel for the petitioner and the learned HCGP for the State. Perused the materials available on record and also the charge sheet laid against the accused in C.C. No.3604/2016. 2. It is stated in the petition that on filing of the complaint by the complainant dated 21.06.2016, the case came to be registered. Thereafter, the Investigating Officer investigated the case and laid the charge sheet against accused in C.C. No.3604/2016. The petitioner is arraigned as accused No.1. Whereas, in this petition, the learned counsel for the petitioner has taken me through the contents of the complaint, where Section 27 of the Contract Labour (Regulation and Abolition) Act, 1970, (hereinafter referred to as 'Act' for short) and so also Rules 74 and 78 of the Contract Labour (Regulation and Abolition) Rules, 1971, (hereinafter referred to as 'Rules for short), as the offences under Sections 23 and 24 of the Act against these petitioners who arraigned as accused Nos.1, 2 and 3. But the complainant ought to have been filed the complaint within a period of three months as per Section 27 of the Act. 3. The other contention of the learned counsel for the petitioner is that the Company has not made as party to the proceedings. But Section 10 makes it clear that prohibition of employment of contract labour. It is further contended that the Court below without applying its mind has taken the cognizance of the petitioners which is contrary to law. These are all the grounds urged in the petition and seeking for quashment of the entire proceedings initiated against the petitioner. 4. Learned counsel for the petitioner has placed the order passed by the co-ordinate Bench of this Court in Criminal Petition No.101371/2016 relating to the case in C.C. No.3604/2016, as wherein co-accused Nos.2 and 3 had filed a Criminal Petition in Crl.P. No.101371/2016 under Section 482 of Cr.P.C. and an order has been passed by this Court on 24.01.2019 and there is quashment of the entire proceedings initiated against the accused Nos.2 and 3. The Copy of the order has been produced by the learned counsel for the petitioner for the purpose of reference as Annexure D. 5. The Copy of the order has been produced by the learned counsel for the petitioner for the purpose of reference as Annexure D. 5. Whereas, accused Nos.2 and 3 said to be the co-accused have taken a ground that the impugned complaint being more than three months after the date of notice of the offence is barred by Section 27 of the Act. Despite of it, the Judicial Magistrate First Class, 1st Court, Hubballi has erroneously taken cognizance of the complaint, as filed by the complainant, as it is barred by the limitation to initiate the proceedings against the accused. These are all the grounds urged by the learned counsel for the petitioner and seeking for quashment of the proceedings. 6. Per contra, learned HCGP for the State has taken me through the averments made in the charge sheet laid against the accused in C.C. No.3604/2016, but this charge sheet laid by the Investigating Officer only after the completion of the investigation and laid charge sheet for the aforesaid offences. He has contended strenuously that the delay is on account of the accused not furnishing the details with regard to the information sought from the petitioner as per the show cause notice and again show cause notice was issued in the month of April 2016 and they did not reply to the show cause notice. Thereafter, complaint was filed in the month of June 2016. Therefore, it cannot be held that there is delay to initiate the proceedings by filing complaint before the competent authority, as where the Judicial Magistrate First Class, 1st Court, Hubballi taken cognizance. These are all the grounds urged by the learned HCGP and sought for dismissal of the petition, as it is being devoid of merits. 7. Having heard the learned counsel for the petitioner and the learned HCGP for the State, it is relevant to refer the provisions of Section 27 of the Act, relating to limitation of prosecutions for initiation of the proceedings. Learned counsel taken a primary contention that the initiation of the proceedings it is contrary to the provisions of Section 27 of the aforesaid Act. The company is not made as a party to the proceedings and the initiation of the proceedings is barred by limitation. Learned counsel taken a primary contention that the initiation of the proceedings it is contrary to the provisions of Section 27 of the aforesaid Act. The company is not made as a party to the proceedings and the initiation of the proceedings is barred by limitation. But on perusal of factual matrix of the case, that inspection was conducted on 22.09.2015 and the show cause notice issued to the accused on the same day and same has been produced by the petitioner in this petition which is at Annexure A, including the complaint and reply was given on 28.09.2015. However, at a cursory glance of the contents in complaint at paragraph 5, the complainant has stated that the show cause notice was given on the same day and there is no reference made in the complaint with regard to the reply given by the petitioner who arraigned as accused No.1. 8. However, learned HCGP fairly contended that there is no reply given by the petitioner. However, the very learned HCGP has brought to the notice that one more show cause notice was given on 12.04.2016, as the accused have been given the compliance report on 27.04.2016. These are all the materials found place in the record. The reply was given on 28.09.2015 and if the contents of the same are not satisfactory, the cause of action arises to the complainant to file the complaint within three months as envisaged under Section 27 of the Act. 9. There is no dispute about the fact that on 22.09.2015 an inspection was conducted by the inspector and on the same day he was given show cause notice with regard to the contravention of the provisions and reply was given on 28.09.2015 itself and when such being the circumstances of the matter, it appears that second show cause notice was prepared only in order to save the limitation and in order to file a complaint before the concerned Court of law to initiate the proceedings against the petitioner. 10. Keeping in view the submission made by the learned counsel for the petitioner and also the grounds urged, it is relevant to refer Section 25 of the Act and the same reads as under: "25. 10. Keeping in view the submission made by the learned counsel for the petitioner and also the grounds urged, it is relevant to refer Section 25 of the Act and the same reads as under: "25. Offences by companies.- (1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible of the offence shall be deeded to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section(1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of any director, manager, managing agent or any other officer of the company, such director, manager, managing agent or such other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 11. Having regard to the tenor of Section 25 of the Act, it is made clear that sub section (1) of the said Act, if the person committing any offence under this Act is a company, the company as well as every person in charge of and responsible to the company for the conduct is guilty and the persons who are in charge of and responsible at the same time is also guilty. However, at a cursory glance of the complaint, the company has not been made as party to the proceedings and liability of the respondents is vicarious liable as held by the Hon'ble Apex Court in the case of Aneeta Hada vs. M/s. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661 and when such being the case, in the absence of the company in the proceedings, the very initiation of the proceedings against the petitioner is a ground to set aside the entire proceedings. Therefore, for the aforesaid reasons as well as tenor of Sections 25 and 27 of the Act, it needs an interference to quash the proceedings in terms of the aforesaid reasons. 12. In view of the aforesaid reasons and findings, I proceed to pass the following: ORDER (i) The petition filed by the petitioner under Section 482 of Cr.P.C. is allowed. (ii) The proceedings initiated against the petitioner in the complaint bearing C.C. No.3604 of 2016 dated 21.06.2016 is hereby quashed, including the cognizance taken against the petitioner. In consequence upon the disposal of the main petition, I.A. No.1/2019 does not survive for consideration. Hence, it is rejected.