IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 Crl.MC.No. 1483 of 2011() ------------------------------------ (AGAINST ORDER DATED 24/02/2011 IN UNNUMBERED CRIMINAL COMPLAINT ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-11, PEERUMEDU) ---------------------------- PETITIONER(S): COMPLAINANT ---------------------------------------------- THE ENFORCEMENT OFFICER, EMPLOYEE'S PROVIDENT FUND ORGANIZATION, DISTRICT OFFICE(IDUKKI)PANCHAYATH OFFICE BUILDING MUNNAR-685 612 BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV. SMT.T.N.GIRIJA, SC,EPF ORGANISATION RESPONDENT(S)/ ACCUSED ------------------------------------------ 1. M/S.RAM BAHADUR THAKUR LTD, GRANBY ESTATE VANDIPERIYAR.P.O., IDUKKI.PIN-685 551 2. S.M.SHARMA, DIRECTOR,M/S.RAM BAHADUR THAKUR LTD, SIDHARTH BUILDING, 2ND MAIN ROAD, WILLINGDON ISLAND, COCHIN-PIN- 682 003 3. MANOJ MOHAN SHARMA, DIRECTOR, M/S.RAM BAHADUR THAKUR LTD,SIDHARTH BUILDING, WILLINGDON ISLAN,COCHIN-PIN- 682 003 4. MANISH MOHAN SHARMA, DIRECTOR, M/S.RAM BAHADUR THAKUR LTD, SIDHARTH BUILDING, WILLINGDON ISLAN,COCHINPIN- -682 003 5. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN-682 031 R5 BY PUBLIC PROSECUTOR SRI.K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/06/2011, ALONG WITH CRM.C.NO.1484/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. Nos.1483, 1484, 1550, 1551, 1552, 1553, 1554, 1555, 1556, 1557, 1558, 1559, 1560, 1561, 1562, 1563, 1564 & 1565 of 2011 -------------------------------------- Dated this the 6th day of June, 2011. ORDER In all these proceedings instituted under Section 482 of the Code of Criminal Procedure (for short, “the Code”) challenge is to the separate orders passed by learned Judicial First Class Magistrate-II, Peerumedu on Annexure- A2, complaints filed by the petitioner. Petitioner is the Enforcement Officer of Employees' Provident Fund Organization and alleging that respondents 1 to 4 committed offences punishable under the Employees' Provident Fund and Miscellaneous Provisions Act (for short, “the Act”) by failing to submit annual contribution statement and contribution cards, filed complaints against respondents 1 to 4 before the learned Magistrate. On the complaints, learned Magistrate has passed orders 'return' for the reason that the complaints are barred by limitation. Those orders are under challenge. Learned counsel for petitioner contends that offences alleged in these cases are continuing offences and hence question of bar of limitation did not arise. Reliance is placed on the decision in Muhammad Hussain Bhal and another v. State of Madhya Pradesh (1960 (2) LLJ 664) and Premier Studs and Chaplets Co. and others v. State (Madras) (1980 (56) FJR 611). It Crl.MC Nos.Nos.1483, 1484, 1550, 1551, 1552, 1553, 1554, 1555, 1556, 1557, 1558, 1559, 1560, 1561, 1562, 1563, 1564 & 1565 of 2011 2 is also contended by learned counsel that at any rate, learned Magistrate has not passed a judicial order after hearing petitioner. Instead, impugned orders are passed mechanically which is more in the nature of administrative orders. 2. It is not necessary for me to go into the question, in these proceedings whether offences attributed to respondents 1 to 4 are continuing offences. It is seen that on the complaints, the office of learned Magistrate put up a note, “Submitted Case is returned due to barred by limitation” and below that, learned Magistrate has passed the order 'return'. It is revealed from the above orders that the learned Magistrate has not applied his mind on the question whether complaints are barred by limitation. Th said orders are mechanically passed and without hearing counsel for petitioner. 3. I must also bear in mind that even if learned Magistrate took cognizance as if complaints are not barred as it is continuing offence as petitioner contends without hearing the accused, it is not as if the accused is not entitled to challenge the order at a later point of time. A learned Judge of this Court in Valsan v. State of Kerala (2003 (2) KLT 1050) has held that an order passed under Section 473 of the Code without notice and hearing the Crl.MC Nos.Nos.1483, 1484, 1550, 1551, 1552, 1553, 1554, 1555, 1556, 1557, 1558, 1559, 1560, 1561, 1562, 1563, 1564 & 1565 of 2011 3 accused is adhoc in character and it is within the right of accused after appearance to contend that the delay ought not to have been condoned. In such situation, if the contention of accused is accepted it is within the power of learned Magistrate to drop the proceeding as held in Ratilal Bhanji Mithani v. State of Maharashtra and others (AIR 1979 SC 94). There, in paragraph 26-B it was held: “Excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be based upon a 'finding of not guilty' turning on the merits of the case and the appreciation of evidence at the conclusion of the trial.” In otherwords, if the prosecution has to fail on account of fundamental defect as to jurisdiction such as want of sanction as the Supreme Court has observed, proceeding could be terminated otherwise than by acquittal, ie. by dropping the proceeding. It is also open to the accused to challenge the order taking cognizance and issuing process in the superior court. In the nature of the orders passed by the learned Magistrate, the same are liable to be set aside. Crl.MC Nos.Nos.1483, 1484, 1550, 1551, 1552, 1553, 1554, 1555, 1556, 1557, 1558, 1559, 1560, 1561, 1562, 1563, 1564 & 1565 of 2011 4 Resultantly, these Criminal Miscellaneous Cases are allowed. The impugned orders are set aside and the complaints are remitted to the court of learned Judicial First Class Magistrate-II, Peerumedu to proceed in accordance with law. Any decision on the question of limitation shall be taken after hearing petitioner. The original complaints (with the order passed by learned Magistrate) produced in these proceedings shall be returned to the petitioner forthwith (for production before the learned Magistrate) on petitioner substituting the same with photocopy of such complaints and order. THOMAS P.JOSEPH, Judge. cks