IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2950 of 2000 RADHE SHYAM MAKHARIA & ANR Versus STATE OF BIHAR & ANR ----------- 5. 2.7.2010. Heard Sri N.K.Agrawal, learned senior counsel for the petitioners and Sri D.Mehta, learned counsel appearing for the State. Complaint petition filed officially by the Labour Inspector-cum-Labour Enforcement Officer ultimately resulted in the summoning order dated 8.6.1999 in Official Complaint No.52(C)2 of 1999 by the Chief Judicial Magistrate, Nalanda at Biharsharif by which he directed the summons to be issued against the petitioners for standing their trial for committing offences under Sections 19(4)of the Minimum Wages Act read with offences punishable under Sections 175, 176, 353 and 374 of the IPC. The gist of the allegation is that the complainant went at the business establishment, i.e., the petrol pump of the petitioners and required them to produce certain registers/documents required to be maintained under the provisions of the Minimum Wages Act but as per the allegation the petitioners not only refused producing the documents/registers but also drove - 2 - away the employees who were working there so that they could not be questioned on the point of payment by the petitioner of wages to them. The complainant inferred that it was intentionally done so as to avoiding the enforcement of the provisions of the Act and as such, it constituted offences under Section 175, 176, 353 and 374 of the Penal Code. The inference was also that the employees were forced to do labour after being either not paid the appropriate wages or after being paid the wages which could not be as per the fixed norms in that behalf. The learned senior counsel appearing for the petitioners has drawn the attention of the Court to the fact by submitting that there is no allegation that the Inspector-cum-Labour Enforcement Officer was obstructed in any manner in discharging his official duties and there was none coming to him even after the day of inspection, to complain that he was being forced to do labour without being paid appropriate wages. It was contended as such that the offences under Sections 353 and 374 of the Penal Code may not be constituted on the facts of the case. The learned senior counsel also submitted that the facts stated - 3 - and alleged may also not constitute the offences under Section 175 and 176 of the IPC. Section 353 of the Penal Code punishes an act which may be causing an obstructions in discharge of the public functions of a public servant either by assaulting or using criminal force to such a public servant. There is no allegation that any real assault was administered to the complainant. The term „assult‟ has been defined by Section 351 of the IPC as meaning any gesture or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he, who makes that gesture or preparation, is about to use criminal force to that person. Criminal forced has been defined in Section 350 of the IPC which runs as follows:- “Criminal force.—Whoever intentionally uses force to any person, without that person‟s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.” As may appear from the above definition criminal use of force to any person without that persons consent in order to committing any offence, - 4 - is necessary with certain intentions as is indicated in that particular provision. Force has been defined by Section 349 of the IPC and that may point out that anything which causes motion change of motion, or cecession of motion to that other against whom such forces is used or if the person using the force causes to any substance such motion or change of motion or cecession of motion as brings that substance into contact with any part of others body or with anything which that other is wearing or carrying or with anything so situated that such contact affects the sense of feeling that it is use of force by a person against the other are necessary ingredients of the offence. There is a proviso added to that definition which indicates that the person causing the motion or change of motion or cecession of motion causes that motion change or that motion in one of the three wages as described by that particular provision. If one considers the three conditions which have been indicated by Section 349 of the IPC as firstly, secondly and thirdly and applied those conditions to the facts of the present case he could simply find that there is absolutely no allegation that the petitioners had used firstly any force and the - 5 - force which was so used was in the manner as indicated in the three ways as per Section 349 of the IPC. Thus, what could be said safely is that the most important of the ingredients for constituting the offence under Section 349 of the IPC is the use of force so as to deterring any public servant from discharging his public functions. The petitioners have neither been alleged nor indicated in the complaint that they had used force. In that view of the matter, the court is of the view that summoning the petitioners for an offence under Section 353 of the IPC was not proper. So far as the summoning of the petitioners for an offence under Section 374 of the Penal Code is concerned one may beneficially allude to the provisions of Section 374 of the Penal Code which reads as under:- “Unlawful compulsory labour.—Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” On perusal of the above it is indicated that the Section could be split up in many parts. The first part is that any person could be compelled to do unlawful labour by a person or for - 6 - any other person. As has been submitted there is no allegation or statement of facts in the official complaint lodged by the complainant that any of the employees of the establishments of the two petitioners were forced or had been compelled to do labour for the two petitioners. The best persons to make those allegations could have been the persons who had the benefit of being employed by the two petitioners in running their establishments. The simple allegation is that the petitioners drove away the employees so that they could not be questioned as to how they had been employed and whether they were being paid the lawful wages for the labour they did for the petitioners. Possibilities might be many and if this could be the situation that the ingredients of offence under Section 374 IPC appear not constituted then again, the court could not have any other view than the view which has been expressed in respect of Section 353 of the IPC. So far as the contention that offences under Section 175 and 176 of the Penal Code may also not be attracted is concerned, one has to look to the provisions of Section 19 of the Minimum Wages Act besides considering the provisions of - 7 - Section 18 of the said Act. On perusal of Section 18 and specially that of Section 19, it may be indicated that there are obligations created in an employer and powers vested in the Inspector to seek production of certain documents and inspect them for certain purposes as are indicated by Section 18 of the Act. There are properly defined powers vested in the Inspector. He could examine any person or inspect the premises. He could also examine the documents which are required to be maintained by the provisions of the Act. It is made mandatory by the provisions of the Act that the inspection has to be freely allowed and at the same time the registers/records and copies of other documents which are required to be maintained are produced by the proprietors of the establishment before the Inspector for his perusal so that he could satisfy himself about the implementation of the provisions of the Act. This is how that provisions under sub Section (4) to Section 19 have been inserted so as to making the part of the other provisions of Section 19 as also the whole of the provisions of Section 18 meaningful and workable. It is directed by sub-Section 4 of Section-19 that any person required to produce any document or - 8 - thing or to give any information to an Inspector under sub-Section (2) of Section 19 shall be deemed to be legally bound to do so within the meaning of Section 175 and Section 176 of the IPC. The learned counsel appearing for the petitioners was attempting to impress upon me that when the special provisions of punishment for the offences which might be committed on account of the violations of the provisions of Section 19 of the Minimum Wages Act have been set down in the said Act, the Sections of IPC were simply not permissible to be attracted under law as may appear from Section 19(4)of the Minimum Wages Act. The legislature appears formulating the said provision of Section 19(4)of the Act for adopting the provisions of Sections 175 and 176 of the Penal Code. They, thus, appear adopting the two provisions and making it part of the other provisions Section-19 of the Minimum Wages Act and as such it cannot be said that when there is a special law governing a particular field of offence, the provisions of the Penal Code may not be attracted. The court is of the view that the summoning of the petitioners under Sections 175 and 176 of the Penal Code was proper inasmuch as there was clear allegation of - 9 - facts that the petitioners did not produce for the perusal and inspection of the Inspector, the documents and records which are required mandatorily to be maintained by an establishment of the nature as was being run by the petitioners. Having said the above, I find that part of the summoning order may not be sustained and accordingly it is struck down as regards the summoning of the petitioners for committing offences under Sections 353 and 374 of the IPC. So far as the order summoning the petitioners for their trial for offences other than those under Sections 353 and 374 of the Penal Code is concerned, the order stands and the proceeding to that extent shall go on. The stay, if earlier granted, shall stand vacated. B.Kr. ( Dharnidhar Jha, J. )