IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2910/2014 BETWEEN:
Sri.Jitendra Virwani, Chairman, M/s. Embassy Property Developments Limited, No.150, Embassy Point, Infantry Road, Bangalore – 560 001. ….Petitioner (By Sri. C.V.Nagesh, Sr. Counsel a/w Sri. Mahesh S, Advocate) AND:
The State of Karnataka, By the Senior Labour Inspector Of Factories, 15th Circle, Karmika Bhyavana, Bangalore -560 029. …Respondent (By Sri. Vijaya Kumar Majage, Addl. SPP) This Criminal Petition is filed u/s.482 of Cr.P.C., praying to quash the entire criminal proceedings as against the petitioner herein in C.C.No.1224/2012 and all its consequential proceedings pending on the file of M.M.T.C – I, Mayo Hall, Bangalore etc.
This petition coming on for orders this day, the Court made the following;
ORDER Heard learned counsel for the petitioner and the learned Additional SPP appearing for the respondent.
2. Petitioner has sought to quash the proceedings initiated against him in C.C. No.1224/2012 on the file of the learned Metropolitan Magistrate Traffic Court-I, Mayo Hall, Bengaluru.
3. Learned senior counsel appearing for the petitioner at the outset referred to certain flaws in the order passed by the learned Magistrate. Firstly, it is contended that the cognizance order passed by the learned Magistrate suffers from lack of application of mind. This order does not disclose as to the offence in respect of which summons have been issued to the petitioner. The learned Magistrate has referred to Section 26 of the Contract Labour (Regulation and Abolition) Act, 1970 (‘the Act’ for short). But the said provision does not create any substantive offence nor does it prescribe any punishment thereto, rather the said section prescribes a bar to take cognizance of the offence under the provisions of the Act except on a complaint made with the previous sanction in writing of the Inspector. Secondly, the learned Magistrate ought to have seen that the respondent has not made M/s. Embassy Groups an accused in the petition. Notice is issued to M/s. Embassy Groups and in the bracket, it is stated as “ Embassy Paragon” which implies that the alleged offence was committed by the Company and hence without making the Company a party to the impugned proceedings, the prosecution of the petitioner is bad in law and cannot be sustained.
4. Thirdly, the learned Magistrate has not considered the averments made in the complaint so as to satisfy himself as to whether the petitioner has committed any offence under Section 22 of the said Act. A reading of the complaint indicates that the alleged offence has taken place on 16/04/2012, but the complaint was filed on 29/09/2012 beyond the period of limitation prescribed under Section 27 of the Act and hence registration of the proceedings against the petitioner and the summons issued by the learned Magistrate being opposed to law which has resulted in abuse of process of Court, has sought to quash the entire proceedings in exercise of the powers under Section 482 of Cr.P.C.
5. Learned Additional SPP appearing for the respondent argued in support of the impugned action contending that the Senior Labour Inspector was authorized under law to file a complaint under the provisions of the Act. The allegations made in the complaint clearly disclose commission of offence under Rules 17(1), 74, 81(1) and 82(3) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. These offences are punishable under the said Act and therefore, there is no error or illegality either in filing the private complaint or in the order passed by the learned Magistrate issuing summons to the petitioner and thus he has sought to dismiss the petition.
6. Considered the submissions and perused the records.
7. The complaint in question was filed by the Senior Labour Inspector, 15th Circle, Bengaluru showing the petitioner herein as accused No.1. Accused No.2 is described as Sri. Lokesh, Facility Manager, M/s. Embassy Paragon (Embassy Group) Hyper City Building, Kundalahalli, Bengaluru. Insofar as the petitioner is concerned, except describing him as “Chairman”, it is not clear from the cause title as to whether the petitioner is prosecuted in his individual capacity or as representing M/s. Embassy Paragon. Be that as it may, order sheet maintained by the learned Metropolitan Magistrate indicate that on receiving the complaint, the learned Magistrate directed summons to the petitioner and three other accused. The relevant order sheet reads as under:-
29/09/2012 The Senior Labour Inspector, 15th Circle Bengaluru, submitted complainant on 29/09/2012 U/s 200a of the Cr.P.C.
R/w U/sec.26 of the Contract Labour (Regulation and Abolition) Act, 1970 against the above accused persons Perused the complaint and records cognizance taken, Complainant is a Government servant, hence exempted from recording sworn statement. There are sufficient grounds for proceeding against the accused.
Register the case in CCR and issue Summons to A1 to A4.
R/by 27/11/12 M M T C -1 8. Section 26 of the Contract Labour (Regulation and Abolition) Act, 1970 deals with the cognizance of the offence. It reads:
“No Court shall take cognizance of any offence under this Act except on a complaint made by or with the previous sanction in writing of, the inspector and no court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under the said Act. “ 9. The case of the complainant is that M/s.Embassy Group was the principal employer and the said employer has violated Rule 17(1), 72, 81(1), 82(3), 82(2) of the Contract Labour (Regulation and Abolition) Central Rules, 1971. There is not even a reference to these violations in the impugned order making it evident, that the impugned order is passed without application of mind to the facts of the case. Needless to say, issuance of summons is a matter which has the effect of interfering with the rights and liberties of the person issued with the summons. Magistrate is required to be vigilant to the facts averred in the complaint and satisfy himself as to whether the facts averred therein make out cognizable offence which warrant prosecution of the accused. Section 27 prescribes limitation of prosecutions in respect of the offences under the provisions of this Act, which reads as under;
“ 27. Limitation of prosecutions – No court shall take cognizance of an offence punishable under this Act unless the complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of an inspector.
Provided that where the offence consists of disobeying a written order by an inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.”
10. A reading of the complaint indicates that the alleged offence had taken place on 16/04/2012, whereas the complaint is filed on 29/09/2012. In view of the inordinate delay in lodging the complaint, the learned Magistrate ought not to have taken cognizance and issued summons to the petitioner. In that view of the matter, the order of taking cognizance by the learned Magistrate cannot be sustained.
11. Accordingly, petition is allowed. The order dated 29/09/2012 passed by the learned Magistrate is set aside. Consequently, the proceedings conducted by the learned Magistrate is quashed. The matter is remitted to the learned Magistrate to consider the complaint afresh, from the stage of receiving the complaint, in the light of the above observations and in accordance with law.
Msu Sd/- JUDGE