- (1.) This revision is directed against charge-sheet dated 19.1.89 and the orders including order dated 23.2.89 passed by the learned S.D.J.M., Chandernagore in the Criminal proceeding.
(2.) Briefly stated the facts and circumstances leading to the present proceedings are as follows : The petitioner is a retired service holder aged about 70 years and he at the material time was the Chief Executive of M/s. Victoria Jute Company Ltd., a company incorporated under the Companies Act, having its Head Office at 3, Clive Row, Calcutta. In 1986, the petitioner was directed by the Higher Authorities to act as the Managing Director of the Company on and from 5th June, 1986, but such appointment was not approved by the Central Government as per Section 269(2) of the Companies Act and as such the status of the petitioner was the Chief Executive. It is further alleged that long after the resignation of the petitioner from the service of the Company, a complaint was lodged against him and others for alleged non-payment of Provident Fund money deducted from the wages of the employees. In fact on or about 3.11.87 one N.C. Bhattacharjee, Provident Fund Inspector, West Bengal lodged a written complaint to the I.G. of Police (Special), Calcutta and the said I.G. sent such complaint to O.C., Bhadreswar P.S. and it was alleged in such complaint that there was non-payment of employee's share of contribution of Provident Fund money by or at the behest of one Harilal Mehta, Chairman of the Board of Directors of the Company and Shri S. Mondal, Manager of the Company for the period of July to December, 1986. On receipt of the said written complaint, Bhadreswar P.S. Case No. 10 dated 8th of March, 1988 under Sections 406/409 of the I.P.C. was stated. On completion of the investigation, the Investigating Authority submitted the charge-sheet being charge- sheet No.7 dated 19.1.89 before the S.D.J.M.. Chandrnagore against all the accused persons including the petitioner under Sections 406/409 of the Indian Penal Code and on the basis of the same S.D.J. M., Chandrnagore took cognizance of the offence on 23rd February, 1989. It is further alleged that the petitioner filed an application under Section 245(3) of the Code of Criminal Procedure alleging, inter alia, that the petitioner was not an 'Employer' within the meaning of the provisions of the Employees Provident Fund and Miscellaneous Provisions Act and, therefore, had no liability whatsoever in the matter of non-payment of the employees share of contribution and, therefore, the prosecution launched under Section 406/409 of the Indian Penal Code was not maintainable against him. The said application was heard by learned Sub- Divisional Magistrate on 15.3.89 and the same was rejected. Being aggrieved by such order, the petitioner has come up before this Court alleging that the learned Magistrate erred in law in rejecting the application under Section 245(3), that the entire proceeding including the order dated 23.2.89 were liable to be quashed in view of the fact that previous sanction as required under Section 14(AC) of the Employees Provident Fund and Miscellaneous Provisions Act was not taken. The petitioner also wanted to challenge the launching of prosecution under the Indian Penal Code on the ground that for breach of any condition as envisaged under Section 17 of the Employees Provident Fund and Miscellaneous Provisions Act, hereinafter referred as the Act, no prosecution said under the Provisions of the Indian Penal Code is maintainable as the said Act is a Special Act and the same is exhaustive one.
(3.) I have heard the learned Advocate for the petitioner. None has appeared on behalf of the Opposite Party, State of West Bengal. The learned Advocate for the petitioner in his argument has wanted to challenge the cognizance of the offence on two fold grounds. Firstly, it is submitted that the Act in question enacted in 1952 is sufficient to deal with any allegation made in connection with non-payment of Provident Fund dues and other similar acts. In this respect, my attention has been drawn to Section 14(2A) of the Act. It is contended here that the established principle of law is when there is a Special Act, which provides for the procedure how an offence is to be dealt with, the case which falls under such Special Act has to be dealt within accordance with the provisions of such Special Act. In the instant case, the allegations of non-payment of Provident Fund dues has to be initiated, continued and decided in terms of such provisions of the Special Act and here the provisions of the General Act, namely, Indian Penal Code, even if sufficient to cover such factual allegations, shall have no application. The learned Advocate has referred the case of Rabindra Chamaria v. Registrar of Companies, W.B., 1992 CalCriLR 59; and also the case of S.K. Agarwalla & Ors. v. Employees State Insurance Corporation & Anr., 1985 1 CalHN 113, and also a decision of the Karnataka High Court in the case of Syed Kalum v. M/s. Mysore Lakshmi Beedi Works & Anr., 1993 CrLJ 232. Secondly, It is contended that Section 14 (AC)(1) of the Act clearly lays down that for taking cognizance of any offence punishable under the Act, there must be a previous sanction from an official authorised by the Central Government, namely, Central Provident Fund Commissioner or such other officer, empowered by him. But, in the instant case prosecution was launched without obtaining, any sanction under the aforesaid provisions.;