Kundan Singh, J. - (1.) This application under Section 482 Cr. P.C. has been filed by applicant Vishwanidhi Dalmia (Raja) for quashing his prosecution in criminal Case No. 4019 of 1976, pending in the Court of the Chief Metropolitan Magistrate, Kanpur alleging that the Employees' State Insurance Corporation through its Inspector Sri K.K. Sharma has originally filed the above complaint against Sri G.D. Bhardwaj and Sri S.P. Saxena, the occupier and Manager and Principal Employer, respectively, of Durga Enterprises Pvt. Ltd., Malak Nagar, Ghaziabad for violating the provisions of Section 40 of the Employees' State Insurance Act read with Regulation 29 of ESI (Gen.) Regulations, 1950 and for offences committed under Section 85-A and 85-E of the Act. The sanction for prosecution of Sri G.D. Bhardwaj and Sri S.P. Saxena alone was obtained which is annexed as Annexure-2 to the petition, but later on the names of applicant Vishwanidhi Dalmia(Raja)and Vidyanidhi Dalmia as Directors of the aforesaid company were also introduced in those proceedings though they were strangers qua the affairs of Respondent No. 4.
(2.) Learned counsel for the applicant urged that Section 86 of Employees' State Insurance Act, 1948 lays down that no prosecution shall" be instituted except by or with the previous sanction of Insurance Commissioner. In the present case no sanction had been obtained for the prosecution of the applicant as such the prosecution of the applicant is bad,
(3.) Heard learned counsel for the opposite party. Learned counsel for the applicant pointed out from the allegation made in paragraph 7 of the petition that at the relevant time the petitioner had no connection whatsoever or even knowledge of the affairs of said company and the applicant never worked as Manager of the company though he was appointed as Honorary Manager of the Company. The petitioner resigned as Manager, as the affairs of the company were not handed over to him by the Directors. The petitioner was not in any manner, aware of the violation of the statutory provisions or liable for the payment of the contribution of Employees' State Insurance dues or the deposit of contribution cards. Learned counsel for the opposite party has not filed any counter affidavit to controvert the allegation made in paragraph No. 7 of the petition. As the prosecuting agency has not obtained sanction for the prosecution of the applicant at any time, the applicant cannot be prosecuted and the warrant of arrest issued for his arrest is not legal one.;