Chattisgarh High Court

Simplex Infrastructures Limited vs State Of Chhattisgarh on 17 November, 2021

                                                                  NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                 Reserved for Orders on : 07/09/2021

                    Order Passed on : 17/11/2021

                         Cr.M.P. No. 273 of 2021

1. Simplex Infrastructures Limited Simplex House, 27, Shakespeare
    Sarani, Kolkatta- 700017

2. B.D. Mundhra S/o Late Madho Das Mundhra, Aged About 73 Years,
    Managing Director, Simplex Infrastructures Limited

3. A.D. Mundhra S/o B.D. Mundhra, Aged About 49 Years, Director,
    Simplex Infrastructures Limited

4. A. Mukherjee S/o Late P.C. Mukharjee, Aged About 77 Years, Director,
    Simplex Infrastructures Limited

5. B. Sengupta S/o Dr. G.N. Sengupta, Aged About 80 Years, Director,
    Simplex Infrastructures Limited

6. R. Natrajan S/o Late V. Rajagopalan, Aged About 86 Years, Director,
    Simplex Infrastructures Limited

7. S. Dutta S/o Late Subhdho Kumar Dutta, Aged About 76 Years, Director,
    Simplex Infrastructures Limited

8. Rajeev Mundhra S/o B.D. Mundhra, Aged About 39 Years, Director,
    Simplex Infrastructures Limited

9. N. N. Bhattacharya S/o Late B.N. Bhattacharya, Aged About 76 Years,
    Director, Simplex Infrastructures Limited

10. Shiva Kishan Damani S/o Late G.D. Damani, Aged About 76 Years,
    Director, Simplex Infrastructures Limited

11. Kunal Saraf S/o K.M. Saraf, Aged About 41 Years, Director, Simplex
    Infrastructures Limited

    (all are R/o Simplex Infrastructures Limited, Simplex House, 27,
    Shakespeare Sarani, Kolkatta- 700017)
                                                         ---- Petitioners
                                 Versus
   State Of Chhattisgarh Through Inspector Under BOCW Act 1996, office
    at Assistant Labour Commissioner, Dr. Mahurkar Gali, Ghadi Chowk,
                                      -2-




   Raipur, Tahsil And District Raipur (Chhattisgarh)

                                                        ---- Respondent

And Cr.M.P. No. 409 of 2021

1. Simplex Infrastructures Limited Simplex House, 27, Shakespeare Sarani, Kolkatta- 700017

2. B.D. Mundhra, S/o Late Madho Das Mundhra, Aged About 73 Years Managing Director, Simplex Infrastructures Limited

3. A.D. Mundhra, S/o B D Mundhra, Aged About 49 Years Director, Simplex Infrastructures Limited

4. A. Mukhrjee S/o Late P C Mukharjee, Aged About 77 Years Director, Simplex Infrastructures Limited

5. B. Sengupta, S/o Dr G N Sengupta, Aged About 80 Years Director, Simplex Infrastructures Limited

6. R. Natrajan, S/o Late V Rajagopalan, Aged About 86 Years Director, Simplex Infrastructures Limited

7. S. Dutta, S/o Late Subhdho Kumar Dutta, Aged About 76 Years Director, Simplex Infrastructures Limited

8. Rajeev Mundhra, S/o B D Mundhra Aged About 39 Years Director, Simplex Infrastructures Limited

9. N. N. Bhattacharya, S/o Late B N Bhattacharya, Aged About 76 Years Director, Simplex Infrastructures Limited

10. Shiva Kishan Damani, S/o Late G D Damani, Aged About 76 Years Director, Simplex Infrastructures Limited

11. Kunal Saraf, S/o K M Saraf, Aged About 41 Years Director, Simplex Infrastructures Limited

(all are r/o Simplex Infrastructures Limited, Simplex House, 27, Shakespeare Sarani, Kolkatta- 700017)

---- Petitioners Versus  State Of Chhattisgarh through Inspector Under BOCW Act 1996, office at Assistant Labour Commissioner, Dr Mahukar Gali, Ghadi Chowk, Raipur, Tahsil And District Raipur Chhattisgarh

---- Respondent And Cr.M.P. No. 435 of 2021

1. Simplex Infrastructures Limiteds Simplex House, 27 Shakespeare Sarani, Kolkatta -700017

2. B.D. Mundhra S/o Late Madho Das Mundhra Aged About 73 Years, Managing Director, Simplex Infrastructures Limited

3. A. D. Mundhra S/o B. D. Mundhra Aged About 49 Years, Director, Simplex Infrastructures Limited

4. A. Mukhrjee S/o Late P. C. Mukharjee Aged About 77 Years Director, Simplex Infrastructures Limited

5. B. Sengupta S/o Dr G.N. Sengupta Aged About 80 Years Director, Simplex Infrastructures Limited

6. R. Natrajan S/o Late V. Rajagopalan Aged About 86 Years Director, Simplex Infrastructures Limited

7. S. Dutta S/o Late Subhdho Kumar Dutta Aged About 76 Years Director, Simplex Infrastructures Limited

8. Rajeev Mundhra S/o B. D. Mundhra Aged About 39 Years Director, Simplex Infrastructures Limited

9. N.N. Bhattacharya S/o Late B.N. Bhattacharya Aged About 76 Years Director, Simplex Infrastructures Limited

10. Shiva Kishan Damani S/o Late G.D. Damani Aged About 76 Years Director, Simplex Infrastructures Limited

11. Kunal Saraf S/o K.M. Saraf Aged About 41 Years, Director, Simplex Infrastructures Limited

(All are r/o Simplex Infrastructures Limited, Simplex House, 27 Shakespeare Sarani, Kolkatta -700017)

---- Petitioners Versus

 State Of Chhattisgarh Through Inspector Under BOCW Act 1996, office at Assistant Labour Commissioner, Dr Mahukar Gali, Ghadi Chowk, Raipur Tahsil And District Raipur, Chhattisgarh

---- Respondent

For Petitioners : Mr. Rohit Sharma with Mr. Amit Soni, Advocates.

For State : Mr. Alok Nigam, Govt. Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order

17/11/2021

1. Three separate petitions have been filed under Section 482 of Cr.P.C.

praying to quash the impugned orders, which are being decided by this

common order.

2. The Cr.M.P. No.273 of 2021 has been brought praying to quash the

criminal proceeding in Criminal Case No.1462/2012/B.O.C.W. Act and

the orders in 16.01.2020 and 07.01.2021, passed by the learned Labour

Court, Raipur.

3. The Cr.M.P. No.409/2021 has been brought pryaing for quashment of

criminal proceeding in Criminal Case No.1444/2012/B.O.C.W. Act and

the order dated 16.01.2020 and 07.01.2021, passed by the learned

Labour Court, Raipur.

4. The Cr.M.P. No.435 of 2021 has been brought praying to quash the

criminal proceeding in the Case No.1463/2012/B.O.C.W. Act and the

order dated 16.01.2020 and 07.01.2021, passed by the learned Labour

Court, Raipur.

5. The facts in brief are these that the petitioner No.1 was awarded three

separate contracts by G.M.R. energy, which is a power generation plant

for civil and architectural work at Raikekha, Tilda, District Raipur in

Chhattisgarh. After completing the formalities, the respondent No.1

started the construction work. One Inspector of the respondent visited the project site on 14.07.2012. The Inspector reported violation of

provisions of Payment of Wages Act, 1962 and rules made under the

Building and Other Constructions Workers (Regulation of Employment

and Conditions of Service) Act, 1996 (in short "B.O.C.W. Act,1996"). On

the basis of which, Assistant Labour Commissioner Raipur vide order

dated 27.07.2012 granted sanctions for prosecution of the petitioners in

all three cases under Section 54(1) of B.O.C.W. Act, 1996. Three

separate complaints were filed against the petitioners in the Court of

Labour Act/Judicial Magistrate First Class, which have been registered.

An order was passed for issuance of process. No summons however

was served upon the petitioners despite that the order has been passed

on 16.01.2020 for issuance of bailable warrants against the present

petitioners and that order has been repeated on 07.01.2021 directing

the issuance of bailable warrants against the petitioners.

6. It is submitted by learned counsel for the petitioners in all three cases

that the petitioner No.1 is seated in Kolkata and the petitioners No.2 to

11 who are the officers of petitioner No.1 are also the resident of

Kolkata. Section 202 of Cr.P.C. very clearly provides that in case where

the accused is residing at a place beyond the area of jurisdiction of the

Court the issuance of process shall be postponed against such accused

and then the trial Court is empowered either to inquire the case itself or

dirtect the investigation to be made by a police officer. The learned

Court below has clearly not followed this procedure and taking

cognizance in the case. It is also submitted that there is no specific

charge against the petitioners even when the process is being issued

against them. The provisions in the Act, 1996 and the rules have not

been followed. Petitioner No.2 to 11 are the Managing Directors and

Directors of the company and they have not played any role in

accordance with the allegations made in the complaint.

7. Reliance has been placed on the judgment of Abhijit Pawar Vs. Hemant

Madhukar Nimbalkar & Anr. reported in (2017) 3 SCC 528, Inder Mohan

Goswami & Anr. Vs. State of Uttaranchal & Ors. reported in (2007) 12

SCC 1, Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors.

reported in (1998) 5 SCC 749, Punjab National Bank & Ors. Vs.

Surendra Prasad Sinha reported in 1993 Supp (1) SCC 499, Managing

Director, Sonalika International Tractor Ltd. Vs. Dinesh Sharma & Ors.

reported in (2009) 11 SCC 435 and Azim H. Premji Vs. State of

Chhattisgarh reported in 2010 SCC OnLine Chh 22.

8. It is submitted that the sanction order granted by the Assistant Labour

Commissioner Raipur is also erroneous and illegal which mentions that

sanction has been granted in accordance with Section 54(1) of

B.O.C.W. Act read with Section 469 (3) of B.O.C.W. Act. There is no

such provision of Section 469(3) of B.O.C.W. Act or the rules. The

orders in earlier prosecution against the petitioner has been set aside by

the State Industrial Court, C.G. Raipur, which were never challenged.

9. It is submitted that clearly the order of the learned Court below is illlegal

for non-compliance of Section 202 of Cr.P.C. The law as declared by the

Supreme Court is binding under Article 141 of Constitution of India.

Hence, the proceedings in all three cases against the petitioners may be

quashed.

10. Learned counsel for the respondents opposes the submissions and

submits that the provisions under B.O.C.W. Act, 1996 have been

followed by the learned Labour Court. There are a number of criminal

proceedings pending against the petitioners. The petitioners are

deliberately avoiding the service of summons upon them since about 8

to 10 years. Section 87 of Cr.P.C. empowers the Criminal Court to issue

warrant of arrest in lieu of summons. Therefore, the learned Court below has not committed any error in directing issuance of bailable warrants

against the petitioners. The petitioners have liberty to move application

for cancellation of warrant.

11. It is further submitted that the petition under Section 482 of Cr.P.C. is not

maintainable as there is statutory remedy present to challenge the order

taking cognisance of the Court below and the State Industrial Court,

which has not been challenged. Therefore, the Criminal proceedings

against the petitioners are not maintainable under Section 482 of Cr.P.C.

which may be dismissed.

12. Learned counsel for the respondent has placed reliance on the

judgment of State of Maharashtra Vs. Ishwar Piraji Kalpatri and ors.

With State of Maharashtra Vs. Ishwar Piraji Kalparti reported in (1996) 1

SCC 542, in which it is held that where on the basis of allegations and in

complaint prima facie case is made out, then, the High Court has no

jurisdiction to quash the proceeding.

13. Reliance has also been placed on the judgment of Supreme Court in the

case of State of Haryana & Ors. Vs. Bhajan Lal and Ors. reported in

1992 Supp (1) SCC 335, in which the Supreme Court has laid down the

guidelines according to which only under the specific circumstances as

mentioned in the judgment, a criminal proceeding can be quashed and

there are no such grounds present in favour of the petitioners.

14. Relying on the judgment of Supreme Court in the case of Hamida Vs.

Rashid Alias Rasheed & Ors. reported in (2008) 1 SCC 474, it is

submitted that wherever there is statutory remedy available, Section 482

of Cr.P.C. cannot be resorted to.

15. In reply, it is submitted by learned counsel for petitioners that the

petitioners have never avoided the service of summons upon them, it is

a fact that nobody had approached them for service of summons upon

them. It is again reiterated that the compliance of Section 202 of Cr.P.C.

is essential. Hence, all three petitions may be allowed.

16. I have heard the learned counsel for the parties and perused the

documents placed on record.

17. The challenge of the petitioners to the allegations against them in the

complaint case is not subject to consideration in this petition under

Section 482 of Cr.P.C. The same can be challenged by the petitioners,

before the trial Court itself at the appropriate stage. Similarly, the

challenge to the sanction order also can not be considered in this

petition under Section 482 of Cr.P.C. because it was on the basis of the

sanction order, the learned trial Court has taken cognizance in the

complaint against the petitioners and that order taking cognizance can

be challenged in the revision, before the revisional Court. Therefore, in

such a case, the inherent jurisdiction under Section 482 of Cr.P.C. can

not be exercised by this Court.

18. The grounds remaining in this petition regarding erroneous issuance of

bailable warrant against the petitioners needs consideration. Clearly all

the petitioners are not the local residents of State of Chhattisgarh and

the address given in the petition itself shows that all of them are resident

of Kolkata, West Bengal.

19. Section 202 Sub-section (1) of Cr.P.C. is relevant, which reads as

under :-

"202. Postponement of issue of process. -- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200."

20. The wording in Section 202 (1) of Cr.P.C. are very clear that in case,

where the accused is residing at a place beyond the area, in which, the

Magistrate is exercising jurisdiction, the issuance of process shall be

postponed and the Magistrate shall either inquire into the case himself

or direct an investigation to be made by a police officer as may be the

requirement of the case. This part of the provision, that Magistrate shall

postpone the issuance of process is with respect to a complant against

an accued, who is residing beyond the area of his jurisdiction, has been

incorporated by an amendment Act, 2005. The words in this provision

with respect to the procedure to be adopted for an accued residing

outside the jurisdiction in a complaint case are mandatory in nature.

Therefore, it is found that the learned Magistrate has by not following