Madhya Pradesh High Court
Narendra Sharma vs Sharad Chandra Chaturvedi on 9 May, 2023
Author: Rajendra Kumar (Verma)
1
M.Cr.C. No.15430 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 9th OF MAY, 2023
MISC. CRIMINAL CASE No. 15430 of 2023
BETWEEN :-
NARENDRA SHARMA, S/O LATE
SHRI S.N. SHARMA, AGED 55
YEARS, OCCUPATION -
EXECUTIVE ENGINEER, P.W.D. (B
& R), DIVISION NO.1, REWA,
DISTRICT REWA, POLICE
STATION CIVIL LINES, REWA,
PRESENTLY WORKING AS
EXECUTIVE ENGINEER, P.W.D.,
BRIDGE DIVISION, JABALPUR,
DISTRICT JABALPUR (MADHYA
PRADESH)
....PETITIONER
(BY SHRI SANJAY K. AGRAWAL - ADVOCATE)
AND
SHARAD CHANDRA
CHATURVEDI, S/O SHRI
RAMNIWAS CHATURVEDI, AGED
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 5/13/2023
4:18:59 PM
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M.Cr.C. No.15430 of 2023
ABOUT 48 YEARS, R/O VILLAGE
POST DOMA, TEHSIL HUZUR,
DISTRICT REWA (MADHYA
PRADESH)
....RESPONDENT
(NONE FOR THE RESPONDENT DESPITE SERVICE)
This application coming on for admission this day, the court
passed the following:
ORDER
Heard finally at motion stage.
This miscellaneous criminal case has been filed under Section 482
of Criminal Procedure Code by the petitioner for quashing the criminal
proceedings in Criminal Case No.266/2020 pending before the Court of
Judicial Magistrate First Class, Rewa and also order taking cognizance
dated 04.02.2020 in Criminal Case No.266/2020 for the offence
punishable under Section 29 of the Industrial Dispute Act, 1947 and all
consequential proceedings emanating therefrom.
2. According to case, respondent filed a complaint by averring that,
the Reference Court vide award dated 27.11.2013 has passed an award
whereby the Executive Engineer was directed to reinstate the service of
respondent and further direction was also issued to pay the wages from
the date of reinstatement in service and further direction was also given to
pay the arrears of salary to the respondent. The respondent vide dated
27.05.2014 furnished the copy of award before the Executive Engineer,
P.W.D., Division Rewa, District Rewa, thereafter, the aforesaid authority
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Signed by: KAFEEL AHMED
ANSARI
Signing time: 5/13/2023
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M.Cr.C. No.15430 of 2023
preferred a writ petition bearing W.P. No.20235/2014 challenging the
award passed by the learned Labour Court dated 27.11.2013. The
aforesaid writ petition came up for hearing before this Court on dated
08.01.2016. This Court vide order dated 08.01.2016 was pleased to stay
the effect and operation of the award passed by the learned Labour Court
dated 27.11.2013 and further direction was also given to comply with
Section 17(B) of M.P. Industrial Dispute Act, 1947. The Executive
Engineer complied with the aforesaid direction passed by this Court in
W.P. No.20235/2014 and order impugned was stayed and has also
accordingly disbursed an amount of Rs.1,05,876/- to the account of
respondent in his Bank of India account bearing No.9441101100100088
IFSC Code No.BKID0009441 for the period starting from 24.04.2014 up
till 01.12.2018 and thereafter, regularly in compliance of Section 17(B) of
Industrial Dispute Act, 1947 amount is being regularly disbursed to the
account of the respondent/complainant. It is also alleged in the complaint
that even though the award is passed and has become final the
accused/petitioner have committed breach of the award by non-
implementing it and as such liable for prosecution and punishment under
Section 29 of the Industrial Dispute Act. After prolonged moment of case
from the Court of Magistrate to the High Court and back in various
proceedings till that complainant has established that there is a prima
facie case against the accused for offence under Section 29 of ID Act and
ordered for registration of case and issuance of summons hence this
petition.
3. Learned counsel appearing for petitioner challenged the
proceedings and prayed for quashing of the same mainly on four grounds
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Signed by: KAFEEL AHMED
ANSARI
Signing time: 5/13/2023
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M.Cr.C. No.15430 of 2023
namely (a) that the complaint is time barred and in view of limitation
under Section 468 of Cr.P.C. the learned Magistrate should not have
entertained the complaint, (b) that the order taking cognizance dated
04.02.2020 is without proper application of judicial mind in the order
impugned no reasons nor any application of mind is reflected even order
impugned also does not reflect about any formation of opinion by the
learned Judicial Magistrate, (c) no enquiry as required under Section 202
of Cr.P.C. has been conducted by the learned Judicial Magistrate before
taking cognizance of the offence, (d) the award passed by the Labour
Court dated 27.11.2013 is also under challenge in writ petition bearing
W.P. No.20235/2014 and award of the Labour Court has not attained
finality. Therefore, cognizance ought not to have been taken by the
Judicial Magistrate First Class, Rewa.
4. Learned counsel for the petitioner by referring to Section 468 (2)
(b) of Cr.P.C. has contended that the limitation provided under the
aforesaid section is one year for taking cognizance of an offence which
are punishable up till six months, but the Court below has taken
cognizance of an offence punishable under Section 29 of Industrial
Dispute Act beyond the period of one year. Admittedly, complaint was
filed on 13.11.2019 wherein, award was passed on 27.11.2013 and
sanction for prosecution was obtained from the Labour Commissioner on
dated 05.11.2014.
5. In order to appreciate the rival contentions and various
pronouncement, the few undisputed dates would be relevant to note that
viz. the award of Labour Court passed on 27.11.2013 sanction for
prosecution was obtained by the respondent on dated 05.11.2014. Writ
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Signed by: KAFEEL AHMED
ANSARI
Signing time: 5/13/2023
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M.Cr.C. No.15430 of 2023
petition filed challenging the order dated 27.11.2013 bearing W.P.
No.20235/2014 wherein notices were issued to the
respondent/complainant and stay was granted subject to compliance of
Section 17(b) of Industrial Dispute Act and an amount of Rs.1,05,876/-
has already been paid to the respondent and is also getting minimum
wages as per section 17(b) of the Act, 1947. Complaint filed on
13.09.2019, cognizance taken on 04.02.2020.
6. I have carefully perused the materials available on record. This
Court after going through the order of cognizance dated 04.02.2020 finds
that the order impugned has been passed without any proper application
of judicial mind nor there is any formation of opinion by the learned
Magistrate before taking cognizance for an offence punishable under
Section 29 of Industrial Dispute Act, 1947. The learned Magistrate has
only stated that cognizance against the present petitioner is being taken
under Section 29 of the Industrial Dispute Act, 1947. The Hon'ble Apex
Court in the case of Lallan Kumar Singh and others Vs. State of
Maharashtra, 2022 SCC Online has held that Magistrate is required to
apply his mind as to whether sufficient ground for proceedings exists in
the case or not. The formation of such opinion is required to be stated in
the order itself. The order is liable to be set aside if no reasons are given
therein. While coming to the conclusion that there is a prima facie case
against the accused. No doubt that the order need not contain detailed
reason.
7. The Hon'ble Apex Court in case of Lallan Kumar Singh (supra)
in para No. 38 to 40 has held as under:-
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ANSARI
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M.Cr.C. No.15430 of 2023
"38. The order of issuance of process is not an
empty formality. The Magistrate is required to
apply his mind as to whether sufficient ground for
proceeding exists in the case or not. The formation
of such an opinion is required to be stated in the
order itself. The order is liable to be set aside if no
reasons are given therein while coming to the
conclusion that there is a prima facie case against
the accused. No doubt, that the order need not
contain detailed reasons. A reference in this
respect could be made to the judgment of this
Court in the case of Sunil Bharti Mittal v. Central
Bureau of Investigation9, which reads thus:
"51. On the other hand, Section 204
of the Code deals with the issue of
process, if in the opinion of the
Magistrate taking cognizance of an
offence, there is sufficient ground for
proceeding. This section relates to
commencement of a criminal
proceeding. If the Magistrate taking
cognizance of a case (it may be the
Magistrate receiving the complaint or
to whom it has been transferred under
Section 192), upon a consideration of
the materials before him (i.e. the
complaint, examination of the
complainant and his witnesses, if
present, or report of inquiry, if any),
thinks that there is a prima facie case
for proceeding in respect of an
offence, he shall issue process against
the accused.
52. A wide discretion has been given
as to grant or refusal of process and it
must be judicially exercised. A
person ought not to be dragged into
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ANSARI
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M.Cr.C. No.15430 of 2023
court merely because a complaint has
been filed. If a prima facie case has
been made out, the Magistrate ought
to issue process and it cannot be
refused merely because he thinks that
it is unlikely to result in a conviction.
53. However, the words "sufficient
ground for proceeding" appearing in
Section 204 are of immense
importance. It is these words which
amply suggest that an opinion is to be
formed only after due application of
mind that there is sufficient basis for
proceeding against the said accused
and formation of such an opinion is
to be stated in the order itself. The
order is liable to be set aside if no
reason is given therein while coming
to the conclusion that there is prima
facie case against the accused, though
the order need not contain detailed
reasons. A fortiori, the order would
be bad in law if the reason given
turns out to be ex facie incorrect."
39. A similar view has been taken by this Court in
the case of Ashoke Mal Bafna (supra).
40. In the present case, leaving aside there being
no reasons in support of the order of the issuance
of process, as a matter of fact, it is clear from the
order of the learned Single Judge of the High
Court, that there was no such order passed at all.
The learned Single Judge of the High Court,
based on the record, has presumed that there was
an order of issuance of process. We find that such
an approach is unsustainable in law. The appeal
therefore deserves to be allowed."
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 5/13/2023
4:18:59 PM
M.Cr.C. No.15430 of 2023
8. Therefore, this court after going the order dated 04.02.2020 finds
that the order of cognizance is without assigning any reasons which is
necessary concomitant before taking cognizance. And the argument raised
by the counsel for the petitioner deserves to be accepted and is accepted
in view of laid down by the Hon'ble Apex court cited above. An
argument has been raised that without an inquiry under Section 200 of the
Code, summoning order has been passed. This court after going through
the record finds that in the impugned order also, it has been recorded so.
Section 200 of the Code makes exceptions for inquiry with regard to the
complaint filed against a person who is residing the beyond the
jurisdiction of the local court. According to the provision to Section 200
of the Code, when a complaint is made in writing, the Magistrate has to
conduct enquiry. In the instant case also, the complaint has been filed by
the complainant/respondent against the petitioner who is residing beyond
the jurisdiction of the local court. Therefore, the Magistrate was under an
obligation to conduct any inquiry under Section 202 of the Code. Based
on the averment as made in the complaint, the cognizance could not have
been taken without conducting any enquiry. So far as the said submission
is concerned when concerned in the light of section 202 of Cr.P.C this
court finds that the court below has taken cognizance without conducting
any mandatory enquiry as required under section 202 Cr.P.C.
9. So far as argument of the counsel for petitioner that the order of
cognizance dated 04.02.2020 is bad in law for the simple reason that as
per section 29 of Industrial Dispute Act,1947 maximum punishment
provided is six months and as per Section 468 (2) (b) of Cr.P.C. limitation
provided under the aforesaid section is one year for taking cognizance of
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Signed by: KAFEEL AHMED
ANSARI
Signing time: 5/13/2023
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M.Cr.C. No.15430 of 2023
an offence which are punishable up till six months, but the Court below
has taken cognizance of an offence punishable under Section 29 of
Industrial Dispute Act beyond the period of one year deserves to be
accepted and is accepted.
10. So far as the contention of the counsel for the petitioner that the
award by the passed by the labour court dated 27.11.2013 has not attained
finality as the award is under challenge the state government in writ
petition bearing W.P No.20235/2014 and vide order dated 08.01.2016 the
effect and operation of order passed by the labour court was stayed and
conditional order has already been passed by this court and the writ
petition was thereafter dismissed for non-compliance of the conditional.
Thereafter restoration application is still pending consideration in MCC
No.396/2020. This court after going through the record finds that award
dated 27.11.2013 has not attained finality and still under challenge. And
the respondent/complainant in compliance of section 17- B of act,1947 is
also getting minimum wages. Therefore, learned court below ought not
to have taken cognizance of the offence against the petitioner.
11. This Court also finds that in the instant complaint which has been
filed before the court below state government has not arrayed as party as
the order is to implemented by the state government and the necessary
party has not been impleaded in the instant complaint. Therefore, instant
complaint is also not maintainable for want of necessary of party in the
complaint.
12. In view of the aforementioned discussions, I find merit in this
application. Accordingly, this application is allowed and the entire
criminal proceedings against the petitioner in Criminal Case No.266/2020
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Signed by: KAFEEL AHMED
ANSARI
Signing time: 5/13/2023
4:18:59 PM
M.Cr.C. No.15430 of 2023
pending before the court of Judicial Magistrate First Class, Rewa and also
order taking cognizance dated 04.02.2020 in criminal case No.266/2020
for the offence punishable under Section 29 of the Industrial Dispute Act,
1947 and all consequential proceedings emanating therefrom, is hereby
set aside. As a consequence, the petition filed by the petitioner stands
allowed. All pending IAs also stands disposed off.
13. Needless to say, the respondent/complainant is at liberty to seek
recourse to law as may be available to him under the law.
(RAJENDRA KUMAR (VERMA))
JUDGE
Kafeel
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 5/13/2023
4:18:59 PM
