Bombay High Court
State Of Maharashtra vs Pankaj A. Gupta on 9 August, 1994
Equivalent citations: 1995(1)BOMCR353, [1995(70)FLR169], (1995)ILLJ780BOM, 1994(2)MHLJ1661
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellant aggrieved by the order dated 1-10-1987 passed by the Judicial Magistrate First Class, IIIrd Court, Kalyan in C. C. No. 3340/86 dismissing its complaint for the prosecution of respondent No. 1 under section 14(2A) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 read with Employees' Family Pension Scheme, 1971 framed thereunder, has come up in appeal before me.
2. I have perused the impugned order and heard Mr. Vaidya, learned Additional Public Prosecutor for the appellant at considerable length. In my opinion, this appeal deserves to be dismissed for two reasons :
Firstly, because section 14AC of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 makes it mandatory that without the previous sanction of the Central Provident Fund Commissioner or such other persons who are empowered to grant it no court shall take cognizance of any offence punishable under this Act. Section 14AC reads thus :-
"14AC. Cognizance and trial of offences.-(1) No court shall take cognizance of any offence punishable under this Act, the Scheme or (the Family 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."
My Vaidya, learned Additional Public Prosecutor contended before me that the requirements of the aforesaid section have been satisfied because in the instant case, the sanction was duly taken on 4-9-1986 but on account of inadvertence along with the complaint which was filed on 2-10-1986, the sanction order was not filed. I am afraid, I cannot agree with him. In my opinion, mandate of section 14AC is that without any sanction order "no court shall take cognizance of any offence punishable under this Act, the Scheme or (the Family Pension Scheme or the Insurance Scheme) ". In other words, unless the sanction order has been filed before the Court and is before the Court the Court cannot take any cognizance. Mr. Vaidya frankly and fairly conceded before me that this has not been done in the instant case. In this view of the matter, I find the order of the learned Magistrate to be perfectly legal, just and proper.
3. There is a second reason as to why this appeal deserves to be dismissed. Admittedly, this appeal has been preferred under section 378(1) of Criminal Procedure Code. The aforesaid section reads thus :-
"378. Appeal in case of acquittal.-(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court (or an order of acquittal passed by the Court of Session in revision) ".
An analysis of the section 378(1), Criminal Procedure Code would how that it is only where an order of acquittal has been passed, an appeal would lie under the aforesaid section. Admittedly, the impugned order was not an order of acquittal. Under the Code of Criminal Procedure an order of acquittal is only passed after the evidence has been recorded. In the instant case, admittedly, the stage of recording evidence had not been reached. The impugned order is one by which the complaint preferred by the appellant was dismissed. It was passed at a very preliminary stage. That being so, no appeal under section 378(1), Code of Criminal Procedure against the aforesaid order is maintainable.
4. In my opinion, there is no force in this appeal and it deserves to be dismissed.
5. In the result, this appeal is dismissed and the impugned order confirmed.
6. Appeal dismissed.