CRIMINAL MISCELLANEOUS No.24758 OF 2000 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- RAVI SHANKAR SON OF SRI JAGAT DIPENDRA PRASAD ASST. ADMINISTRATIVE OFFICER (DEVELOPMENT) DIVISIONAL OFFICE I UNITED INDIA INSURANCE CO. LTD. LAXMI APARTMENT, FRASER ROAD, PATNA. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. ASSISTANT DIRECTOR (EMPLOYMENT SUB REGIIONAL EMPLOYMENT EXCHANGE, DALMIANAGAR. ... ... OPPOSITE PARTIES. ---- For the Petitioner : Mr. Ashok Priyadarshi, Adv. For the State : Mrs.Indu Bala Pandey,A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, who was at the relevant time Assistant Branch Manager of the United India Insurance Company Ltd., Civil Lines, G.T. Road, Sasaram, (hereinafter referred to as the “Insurance Company”) has approached this Court, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure, for quashing of an order dated 24.11.1997 passed by the Chief Judicial Magistrate, Rohtas at Sasaram in Official Case No.5 of 1997/T.R. No.1661 of 1997/1118 of 1998. By the said order, the learned Chief Judicial Magistrate had taken cognizance of offence under Section 5(1) of 2 the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. 2. Short fact of the case is that an official complaint was filed by opposite party no.2, which was numbered as Official Case No.5 of 1998 along with a petition for condonation of delay. In the complaint petition, it was alleged that the complainant had visited the office of United India Insurance Company Ltd, Civil Lines, G.T. Road, Sasaram with a view to get the information regarding vacancies in the Insurance Company. It was alleged that the petitioner neglected to furnish quarterly returns for quarters ended on December, 1995, March, 1995, June, 1995, September, 1995 to the local Employment Exchange, Dalmianagar despite reminders. Another allegation was made that the petitioner, being Assistant Branch Manager of the Company, was entrusted with the employment of Commission Agents. Accordingly, it was alleged that the petitioner had committed offence punishable under Section (ii)(a)(1) of the Act. Since it was official complaint, which was filed along with the petition for condoning delay, by an 3 order dated 24.11.1997, the learned Chief Judicial Magistrate, while allowing the petition for condoning the delay, took cognizance of offence under Section 5(1) of the Act and directed for summoning the petitioner. 3. Aggrieved with the order of cognizance dated 24.11.1997, the petitioner approached this Court by filing the present petition, which was admitted on 13.11.2001. While admitting, this Court directed that during the pendency of this application, further proceedings in the court below shall remain stayed and order of stay is still continuing. 4. Shri Ashok Priyadarshi, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance as well as prosecution of the petitioner, submits that the petitioner was merely an Assistant Branch Manager of the Insurance Company and as such he cannot be termed as an employer and without being an employer, the complainant was not at liberty to file the complaint petition against the petitioner by name. It was further submitted 4 that the allegation of non furnishing of vacancy in respect of employment of Commission Agents has got no concerned to constitute an offence under the Act. It was submitted that Commission Agents are not treated as employee. It was submitted that license is issued to the concerned person to Act as Commission Agents subject to deposit of the requisite license fee. Learned counsel for the petitioner has pointedly referred to Section 2(10) and Section 42 of the Insurance Act, 1938, which is as follows : “10. “insurance agent” menas an insurance agent licenced under section 42 being an individual who receives or agrees to receive payment by way of commission or other remuneration in consideration of his soliciting or procuring insurance business (including business relating to the continuance, renewal or revival of policies of insurance).” “42. Licensing of insurance agents – (1) The (Controller) or an 5 officer authorized by him in this behalf shall, in the prescribed manner and on payment of the prescribed fee which shall be not more than (twenty five rupees), issue to an individual (making an application in the prescribed manner) and not suffering from any of the disqualifications hereinafter mentioned a licence to act as an insurance agent for the purpose of soliciting or procuring insurance business. (2) A license issued under this section, shall entitled the holder to act as an insurance agent for any * * * insurer. (3) A licence issued under this section after the commencement of the Insurance (Amendment) Act, 1950 (47 of 1950), shall remain in force for a period of three years only from the date of issue, but shall, if the applicant does not suffer from any of the disqualifications mentioned in 6 items (b), (c) and (d) of sub- section (4) and the application for renewal of the licence reaches the issuing authority at least thirty days before the date on which the licence ceases to remain in force, be renewed for a period of three years at any one time on payment of the prescribed fee which shall be not more than (twenty five rupees) and an additional fee of a prescribed amount not exceeding (ten rupees) by way of penalty, if the application for renewal of the licence does not reach the issuing authority at least thirty days before the date on which the licence ceases to remain in force.” 5. It was further submitted that since the Commission Agents were not employees of the Insurance Company, there was no requirement for furnishing information in respect of vacancy of the Insurance Agents/Commission Agents. Moreover, it was 7 submitted that the petitioner, being Assistant Branch Manager of the Company, had also furnished the information by way of furnishing quarterly return. It was submitted that complainant himself has admitted in its complaint petition, at paragraph-4 that the quarterly returns were furnished by the petitioner. The complainant had asserted that the quarterly returns were filed by the petitioner at a belated stage. However, in the complaint petition, no date has been mentioned to show as to whether on what ground it was considered that the quarterly report was submitted at belated stage. On the aforesaid grounds, learned counsel for the petitioner has prayed for quashing of the order of cognizance as well as entire prosecution in Complaint Case No.5 of 1997. 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor, appearing on behalf of the State, has opposed the prayer of the petitioner. It was submitted that the learned Magistrate, while passing order, was satisfied with the prima facie case and thereafter, order was passed. 7. In this case, despite service of 8 notice on opposite party no.2, the opposite party no.2 has not chosen to appear either personally or through counsel. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In the complaint petition, in paragraph-2, the complainant had asserted that the accused persons had neglected to furnish quarterly returns. However, in paragraph-4 of the complaint petition itself, it was admitted that quarterly returns were submitted, but were submitted at belated stage. In the complaint petition, nothing has been asserted that how it was considered to be belated quarterly report. Moreover, so far as non furnishing information regarding vacancy of Commission Agents is concerned, in view of Section 2(10) and 42 of the Insurance Act, the court is satisfied that the insurance agents were not employee of the Insurance Company and as such it was not obligatory on the part of the petitioner to furnish those information. 9. Besides merit of the case, the court is also of the opinion that after lapse 9 of more than 13 years, it would not be appropriate to direct the petitioner to participate in the proceeding in Official Case No.l5 of 1997. 10. In view of the facts and circumstances mentioned hereinabove, the court is satisfied that it is a fit case for exercising inherent jurisdiction in favour of the petitioner and, accordingly, order of cognizance dated 24.11.10997 passed by the Chief Judicial Magistrate, Rohtas at Sasaram in Official Case No.5 of 1997/T.R. No.1661 of 1997/1118 of 1998 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 29.7.2010 N.A.F.R./N.H.