Amrita Ranjan v. 1.The State of Jharkhand 2.Amit Kumar
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 509 of 2021 Amrita Ranjan .... .. ... Petitioner(s) Versus 1.The State of Jharkhand 2.Amit Kumar ........... .. ... ...Opp. Party(s)
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ......... For the Petitioner(s) : Mr. Shanklar Lal Agrawal, Advocate For the State For the O.P. No.2 …... Mr. Navneet Sahay, Advocate : Ms. Priya Shrestha, APP by : Mr. P.S.A. S. Pati, Advocate C.A.V. ON 31.01.2023. PRONOUNCED ON 9 /02/2023. 1. The instant Cr.M.P. has been filed for quashing of the order taking cognizance under Sections 406 and 409 of the Indian Penal Code dated 11.04.2020 passed by learned CJM, Jamshedpur, in connection with Sakchi P.S. Case No.222 of 2018. 2. The brief fact of the present case is that an inspection was conducted by the informant (Inspector, Employees Provident Fund) in the establishment of MGM Hospital, Sakchi, Jamshedpur, in which it was noticed that the employer viz Smt Amrita Ranjan w/o Shri Rajiv Ranjan , Proprietor of M/s Advance Business Corporate, MGM Hospital claimed Provident fund on full wages from Principal Employer and paid less amount to employee towards salary. This resulted into less deposit of provident contribution in Employees Provident Fund Organisation. Three specific cases have been cited in the official complaint namely, Abha Kumari, Chandan Kumar and Ravi Sandil were provident fund contribution in the Month of November, 2016 was not as per the actual wages of the employee received from the principal principal employer (M.G.M. Hospital). 3. The case in nutshell, is that EPF contribution on higher salary was drawn from principal employer, whereas lower salary was shown to contribute lesser EPF contribution causing loss to Employees Provident Fund Organisation. 4. The instant Cr. M. P. has been filed mainly on the ground that no offence under the IPC will be made out in the present case, in view of the fact that Employees Provident Fund & Miscellaneous Provisions Act, 1952 was enacted in the year 1952 and it came into force on 04.03.1952. Section 14(1) of the said Act, 1952 provides penalties which reads as follows :- Whoever, for the purpose of avoiding any payment to be made by himself under this Act [the scheme the (pension) Scheme) or the insurance scheme] or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to [one year, or with fine of five thousand rupees, or with both]. In view of the specific provision providing penalty for the same act, the penal provision of Indian Penal Code will stand excluded by the doctrine of implied repeal. 5. The second ground is that the instant prosecution is premature for the reason that criminal provisions can only be initiated after the initiation of the assessment made under Section 7-A of the EPF Act. 6. It is argued that since, the proceeding for assessment is still pending. Since the assessment has not been made and definite amount has not been determined by competent authority, as such, the criminal proceeding is premature and cannot be launched. 7. Learned APP for the State assisted by learned counsel for the O.P. No.2 has opposed the prayer. It is submitted that Section 6 of the Act read with para-38 of the EPF Scheme , 1952 mandates to pay the employee’s share of Provident Fund Contribution deducted from the salaries/ wages of the employees on or before 15th of the following month. This is not a case of dispute over quantification of the contribution was to be made, but one where the EPF contribution from the principal employer has been swindled, by making false representation regarding the salary received. The salary was deliberately projected to be low and the contribution received on actual wages was not deposited. Reliance has been placed on 2018 SCC Online Kolkata 1367 which has been affirmed by the Hon’ble Supreme Court in SLP (Crl.) No.29232 of 2018. 8. At the outset it may be noted that the penal provisions of the Employees Provident Act do not exclude the penal provisions of IPC. There is a difference between the principles of exclusion of the general provisions of Cr.PC, by any provision of a Special Act and that of exclusion of the penal provisions under IPC. Unless the penal provisions are specifically excluded by any special enactment, there cannot be suo motu exclusion of it. Section 4(2) of the Cr.P.C reads as under: “ All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being enforced regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence.” Section 5 nothing contained in this code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 9. From these provisions what can be safely deduced is that by special enactment the procedure as laid down under Cr.P.C. can be excluded, but as such the penal provisions are not excluded. Unless the special law expressly or impliedly provides that certain offences shall be tried exclusively by court constituted under the Act, the jurisdiction of the court having jurisdiction to try the offences under the Code cannot be said to have been excluded. If the particular Act enacting an offence also provides procedure for investigation, inquiry or trial then the same will exclude the application of the code. Therefore, the plea of exclusion of penal provision of the IPC by the provision of EPF has no substance and is accordingly rejected. 10. The second argument that the very launching of prosecution was premature as the provisions of Section 7A of the EPF Act had not been concluded, also does not hold ground, for the simple reason that this provision will apply in such cases where there was genuine dispute about the contribution to be made and not where the salary was deliberately pegged down low from the real, to make lesser EPF contribution. I do not find any infirmity in the order taking cognizance. The Criminal Miscellaneous Petition is accordingly dismissed. Jharkhand High Court, Ranchi Dated the 9th February, 2023 AFR/Sandeep (Gautam Kumar Choudhary, J.)