IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.A.No. 311 of 2003() --------------------------------- ST.2037/1999 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .......................................................................... APPELLANT(S): COMPLAINANT -------------------------------------------- C.A.MATHEW, ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION, KOZHIKODE. BY ADVS. SRI.R.SUDHIR, S.C., P.F. SRI.THOMAS MATHEW NELLIMOOTTIL, S.C., P.F. RESPONDENT(S): ACCUSED ---------------------------------------- 1. M/S.SWADESHI TILE WORKS, CHERUVANNUR, FEROKE, CALICUT, REPRESENTED BY THE MANAGING PARTNER, K.V.AVARANKUTTY HAJI. 2. K.V.AVARANKUTTY HAJI, MANAGING PARTNER, SWADESHI TILE WORKS, CHERUVANNUR, FEROKE. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS. SRI.P.V.KUNHIKRISHNAN FOR R1 & R2 SRI.C.M.NAZAR, PUBLIC PROSECUTOR FOR R3. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009, ALONG WITH CRL.A.Nos.312/2003 AND 313/2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.Nos.311/2003, 312/2003 and 313/2003 --------------------------------------- Dated this the 19th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ All these appeals are filed against the order passed by the Judicial First Class Magistrate Court - V, Kozhikode, in S.Ts.2035/99, 2036/99 and 2037/99. It was a prosecution initiated under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The prosecution was launched by an Inspector appointed u/s.13 of the Act for violation and non-compliance of the statutory requirements under the Act. In the court below an argument was raised to the effect that the sanction obtained u/s.14-AC of the said Act is not in conformity with law and therefore, the whole action has to be treated as invalid for want of proper sanction. The trial court agreed with that contention and held that the complainant should have obtained sanction from the State Government and therefore close all the cases by acquitting the accused u/s.255(1) of Cr.P.C. It is against that CRL.A.Nos.311/2003, 312/2003 and 313/2003 2 decision, the complainant has come up in appeal before this court. The point that arises for determination is, 1. Whether the trial court was right in holding that the sanction obtained is not proper and therefore prosecution will not lie. 2. Point No.1 :- As stated by me earlier, the prosecution is launched under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Under the said enactment Section 14-AC, deals with the cognizance and trial of offences. Section 14-AC of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 reads as follows :- “ No court shall take cognizance of any offence punishable under this Act, the Scheme or [ the (Pension) Scheme or the Insurance Scheme ], except on a report in writing of the facts constituting such offence made with the previous sanction of the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the Official Gazette, in this behalf, by an Inspector appointed under Section 13.” A reading of this section would make it CRL.A.Nos.311/2003, 312/2003 and 313/2003 3 clear that it is an Inspector appointed u/s.13 of the Act on filing a report in writing with the previous sanction of the Central Provident Fund Commissioner or the authorised Officer appointed by the Central Government shall initiate the prosecution. Now what the trial court has done is, it went to the provisions regarding the appointment of inspectors u/s.13 and then held that they are appointed by the State Government and therefore, appropriate government is the State Government and so without the sanction of the State Government, the prosecution would not lie. I am afraid, the learned Magistrate has not understood the impact of Section 14-AC. Section 14-AC makes the inspector competent to file the complaint. The said inspector has to put a report in writing. He has to get the previous sanction of the Central Provident Fund Commissioner or such other Officer as may be authorised by the Central Government. So the sanction is to be obtained only either from the Central Provident Fund Commissioner or the persons authorised on that behalf by the Central Government. Now learned counsel had pointed out to me the sanction order which is marked as Ext.P5 in the case. CRL.A.Nos.311/2003, 312/2003 and 313/2003 4 Ext.P5 is an order of sanction issued by the Regional Provident Fund Commissioner, Calicut. So unless the complainant is able to establish that the Regional Provident Fund Commissioner, Calicut is authorised by necessary notification by the Central Government to give sanction, then a prosecution will not lie. But on a reading of Ext.P5 there is a specific reference to a notification and S.O.549 (E dated 17.10.1973), a photo copy had been made available for perusal and I feel that the said notification will cover the field. But the learned counsel for the respondent in the cases would submit before me that let that be not decided here and he be permitted to raise the contentions regarding the correctness and applicability before the court below when the notification itself is produced. I do not want to deny the opportunity to be given to the respondent herein, but suffice to say, all these three cases requires reconsideration at the hands of the concerned Magistrate. Therefore, the order of acquittal passed in all these cases are set aside and the matter is remitted back to the concerned Magistrate for fresh hearing on the question, whether there is a proper sanction as CRL.A.Nos.311/2003, 312/2003 and 313/2003 5 contemplated u/s.14-AC of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. For the said purpose both the complainant and the accused are permitted to produce documentary evidence in support of their respective contention and let the matter be heard and disposed of in accordance with law. Needless to say if the court finds that sanction is proper, the court will proceed further by giving an opportunity to the parties to raise their contention in support of their cases. It is submitted that the accused in the case is old and the matter is being looked after by the children and when an application is filed for exemption, let the court below consider it sympathetically and pass appropriate orders. The parties are directed to appear before the court below on 29.7.2009. M.N.KRISHNAN, JUDGE ami.