Judgment · High Court

Mrs. Rashmila Ramchandra Bandodkar, wife of Shri Ramchandra Bandodkar, major of age, resident of Escrivao Vaddo, Candolim, Calangute, Goa. Shri Gurudas Bandodkar, major of age, resident of Escrivao Vaddo, Candolim, Calangute, Goa. V e r s u s ...... Applicants Provident Fund Inspector, Employees' Provident Funds Organisation, Regional Office Goa, having his office at Bhavishya Nidhi Bhavan, 24, Patto Plaza, Panaji, Goa. ...... Respondent Mr. A. Nigalye, Advocate for the Applicants. Mr. P. P. Singh, Advocate for the Respondent. CORAM: A. P. LAVANDE, J. DATE: 13 th October, 2008. ORAL JUDGMENT Heard Mr. Nigalye for the Appellants and Mr. P. P. Singh, for the Respondents.

-2- Rule. By consent heard forthwith. All these applications filed under Section 482 Cr.P.C. are being disposed of by common Judgment and Order since the issues involved in all these applications as well as facts are almost identical.

The applicants in all these applications are accused in Criminal case nos. 1686/04/B, 1674/04/B, 1714/04/B, 1710/04/B, 1690/04/B, 1670/04/B, 1658/04/B, 1718/04/B, 1662/04/B, 1706/04/B, 1726/04/B, 1702/04/B and 1682/04/B, pending before J.M.F.C., Mapusa, registered pursuant to complaints filed by respondent alleging offences under Sections 14(1A) and 14A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, (hereinafter referred to as 'Act'). The learned Magistrate issued summons to all the accused including the applicants and thereafter explained substance of accusation to the accused treating the complaints cases as summons cases. Thereafter, the applicants filed applications seeking their discharge on the ground that the complaints did not disclose commission of offences by the applicants and also on the ground that the cases could not have been tried as summons cases. The learned Magistrate by impugned Orders dated 06.02.08, held that the question of discharging the accused under Section 245 did not arise since the cases were tried as summons triable cases and, therefore, the only alternative left was to proceed with the trial of cases and to invoke Section 259 Cr.P.C. at appropriate time and try the cases as warrant triable cases. -3-

Aggrieved by the Orders passed by the learned Magistrate, the applicants have approached this Court under Section 482 of Criminal Procedure Code.

Mr. Nigalye, learned Counsel for the applicants, submitted that under Section 14A of the Act, the maximum punishment prescribed is three years and, therefore, the cases could not have been tried as summons cases. According to Mr. Nigalye, reliance placed by the learned Magistrate on Section 259 of Cr.P.C., is totally misplaced inasmuch as Section 259 is attracted in case of trial of a summons case and, undisputedly, the cases filed against the applicants are warrant cases. He, therefore, submitted that serious prejudice would be caused to the applicants in case the substance of accusation explained by the Magistrate in all these cases is maintained and the cases are tried as summons cases. He, therefore, submitted that in this factual background, the impugned Orders dated

06.02.08, as well as substance of accusation explained to the applicants in all the cases be set aside. He further submitted that the applicants are also liable to be discharged inasmuch as the allegations made in the complaints do not justify issuance of process against the applicants.

Per contra, Mr. Singh, learned Counsel for the respondent, submitted that the applicants having not challenged the Orders issuing process passed by the Magistrate, are not entitled to invoke inherent jurisdiction under Section 482 of Cr.P.C. According to Mr. Singh, the facts and cuircumstances do not justify exercise of inherent jurisdiction by this Court. He, therefore, submitted that all the applications filed by the applicants be dismissed. -4-

Having considered the submissions made by learned Counsel for the parties and having perused the record, I am of the considered opinion that there is considerable merit in the first submission of Mr. Nigalye. It is not in dispute that maximum punishment prescribed under Section 14(1A) of the Act is three years. Therefore, all the cases ought to have been tried as warrant triable cases under Chapter XIX of the Code of Cr.P.C. and the Magistrate could not have tried the cases as summons cases. Moreover, the finding recorded by the learned Magistrate that the only alternative for him is to invoke Section 259 Cr.P.C., is patently unsustainable in law inasmuch as Section 259 can be invoked only in a summons triable case. Learned Magistrate ought to have tried all the cases as warrant triable cases. In so far as second ground urged by the applicants that no case is made out against them is concerned, I find no merit. Prima facie case is made out against the applicants under Section 14(1A) and 14A of the Act.

In view of the above, the impugned Orders dated 06.02.08 passed by the Magistrate in all the above referred cases, are quashed and set aside. Similarly, the plea of all the accused recorded by the Magistrate in the aforesaid cases including the applicants are also quashed and set aside and the Magistrate is directed to dispose of all cases as warrant triable cases under Chapter XIX of Cr.P.C. -5-

Rule is made absolute in all the above applications in the aforesaid terms with no order as to costs. arp/* A. P. LAVANDE, J.