Criminal Misc. No. M-6365 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-6365 of 2009 Date of Decision:November 12, 2010 S.C.Mangal ...........Petitioner Versus Labour Enforcement Officer (Central) Kendriya Sadan ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.D.S.Nehra, Senior Advocate with Mr.B.Ganeshan, Advocate for the petitioner. Ms..K.K.Kalon,Advocate for the respondent ** Sabina, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (for short`Cr.P.C.') for quashing of criminal complaint No. 8761/08 filed by respondent No.1, under Section 24 of the Contract Labour (Regulation& Abolition) Act, 1970 (Annexure P4) and the summoning order dated 14.5.2008 (Annexure P5) passed by the Chief Judicial Magistrate Chandigarh and all subsequent proceedings arising therefrom. The case of the complainant, as per the complaint (Annexure P4). reads as under:- "1. That the complainant is the Labour Enforcement Officer (Central), Chandigarh who has been appointed as an `Inspector' Criminal Misc. No. M-6365 of 2009 2 under Section 28(1) of the Contract Labour (Regulation & Abolition) Act, 1970 2.That the Asstt. Labour Commissioner (Central), Chandigarh has been appointed as Registering Officer as defined in Section 6(a) &6(b) of the Contract Labour (Regulation & Abolition) Act, 1970 vide notification No. 16024/11/82 LS(ii) dated 11.6.82 issued by the govt. of India, Ministry of Labour, New Delhi. 3. That the accused in the Principal Employer or as defined in section 2(1)(g) of Contract Labour (Regulation & Abolition) Act, 1970 4. That the accused person failed to submit Annual Return for the year ending 31.12.2007 to the Registering Officer i.e. Asstt. Labour Commissioner ©, Chandigarh within the prescribed time limits under Rule 82(2) of the Contract Labour (Regulation & Abolition) Central Rules, 1971 inspite of show cause notice in this regard issued to the accused vide letter No. 46(R-08)/ 2007/ACH/Pb. Dated 18.3.2008. 5. That the accused person having contravened the provisions of the said Act and rendered himself liable for prosecution under Section 24 of the Contract Labour (Regulation & Abolition) Act, 1970 and hence this complaint. 6. That the complainant,therefore, prays that the Hon'ble Court may be pleased to take cognizance of the said offences and the accused persons be summoned to stand trial. 7.That the complainant also prays that the Hon'ble Court may award the part of fine, imposed on the said accused, towards the Criminal Misc. No. M-6365 of 2009 3 expenses incurred by the Deptt. In conducting the prosecution in terms of section 357(1)(1) of the Cr.P.A. and amount as awarded/ordered to be credited into the head of Account No. “0231-Labour Laws” adjustable in the Books of PAO(LB), Chandigarh Code No. LAB/LB/80 in the Union Bank of India at Chandigarh. 8. That the complainant also prays that he is touring officer and he has to remain out of his head quarters frequently in connection with his official duties and as such he may be exempted from his person appearance in the Hon'ble Court. The complainant shall, however, appear in the court as and when his presence is required for recording his evidence. 9. That the complaint begs to leave to amend or add to or make alteration in the complaint, if and when necessary." Learned counsel for the petitioner has submitted that it was a clear case of misuse of power by the respondents. The requisite information had already been supplied on the prescribed performa by the petitioner but despite that the complaint had been filed by respondents. The Court could not entertain the complaint without their being sanctioned for prosecution under Section 197 Cr.P.C. In support of his arguements, learned counsel has placed reliance on Rakesh Kumar Mishra vs. State of Bihar and others 2006(1) RCR(Criminal) 456 wherein it has been held as under:- "The Section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Criminal Misc. No. M-6365 of 2009 4 sessions under Section 193, as it cannot take cognizance, as a Court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or unless the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned, the cognizance of any offence by any Court is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, `no Court shall take cognizance of such offence except with the previous sanction'. Use of the words, `no' and `shall' makes it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word `cognizance' means `jurisdiction' or `the exercise of jurisdiction' or `power to try and determine causes'. In common parlance it means taking notice of. A Court, therefore, is precluded from Criminal Misc. No. M-6365 of 2009 5 entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty." Learned counsel for the respondents, on the other hand, has submitted that the complaint in question was liable to be withdrawn and the request in this regard has been sent to the Ministry but the sanction in this regard had not been received so far. A perusal of the complaint reveals that the complaint was filed against the petitioner by the respondents on the allegations that the annual return for the year ending 31.12.2007 had not been sent to the Assistant Labour Commissioner (Central)-respondent No.2 within the prescribed time limit. A perusal of Annexure P3 reveals that the Board had informed respondent No.2 that the annual return in question had already been supplied on the prescribed proforma XXV through registered post vide memo No. 876-77 dated 21.1.2008. The copies of the said memo and return were also enclosed with the said letter. Thus, on receipt of show cause notice, immediately petitioner had sent communication to respondent No.2 to the effect that the return in question had already been submitted through registered post. In order to substantiate the same, copy of the postal receipt along with copy of the return were attached with the letter Annexure P3. No reply has been filed by the respondents to controvert the submissions made in the petition. Moreover, the respondents have now sought permission to withdraw the complaint apparently due to the reason that the petitioner has already done the needful. Accordingly, this petition is allowed. Criminal Complaint Criminal Misc. No. M-6365 of 2009 6 (Annexure P4) as well as summoning order dated 14.5.2008 (Annexure P5) and all subsequent proceedings arising therefrom are quashed. (Sabina) Judge November 12, 2010 arya