IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 311 of 2003()
1. C.A.MATHEW ENFORCEMENT OFFICER,
... Petitioner
Vs
1. M/S.SWADESHI TILE WORKS, CHERUVANNUR,
... Respondent
2. K.V.AVARANKUTTY HAJI, MANAGING PARTNER,
3. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.R.SUDHIR, SC, P.F.
For Respondent :SRI.P.V.KUNHIKRISHNAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :19/06/2009
O R D E R
M.N.KRISHNAN, J.
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CRL.A.Nos.311/2003, 312/2003 and 313/2003
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Dated this the 19th day of June, 2009
J U D G M E N T
~~~~~~~~~~~
All these appeals are filed against the order passed by
the Judicial First Class Magistrate Court – V, Kozhikode, in
S.Ts.2035/99, 2036/99 and 2037/99. It was a prosecution
initiated under the provisions of the Employees’ Provident
Funds and Miscellaneous Provisions Act, 1952. The
prosecution was launched by an Inspector appointed u/s.13
of the Act for violation and non-compliance of the statutory
requirements under the Act. In the court below an argument
was raised to the effect that the sanction obtained u/s.14-AC
of the said Act is not in conformity with law and therefore, the
whole action has to be treated as invalid for want of proper
sanction. The trial court agreed with that contention and held
that the complainant should have obtained sanction from the
State Government and therefore close all the cases by
acquitting the accused u/s.255(1) of Cr.P.C. It is against that
CRL.A.Nos.311/2003, 312/2003 and 313/2003
2
decision, the complainant has come up in appeal before this
court. The point that arises for determination is,
1. Whether the trial court was right in holding that the
sanction obtained is not proper and therefore prosecution
will not lie.
2. Point No.1 :- As stated by me earlier, the
prosecution is launched under the provisions of the
Employees’ Provident Funds and Miscellaneous Provisions
Act, 1952. Under the said enactment Section 14-AC, deals
with the cognizance and trial of offences. Section 14-AC of
the Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 reads as follows :- ” No court shall take
cognizance of any offence punishable under this Act, the
Scheme or [ the (Pension) Scheme or the Insurance
Scheme ], except on a report in writing of the facts constituting
such offence made with the previous sanction of the Central
Provident Fund Commissioner or such other officer as may be
authorised by the Central Government, by notification in the
Official Gazette, in this behalf, by an Inspector appointed
under Section 13.” A reading of this section would make it
CRL.A.Nos.311/2003, 312/2003 and 313/2003
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clear that it is an Inspector appointed u/s.13 of the Act on
filing a report in writing with the previous sanction of the
Central Provident Fund Commissioner or the authorised
Officer appointed by the Central Government shall initiate the
prosecution. Now what the trial court has done is, it went to
the provisions regarding the appointment of inspectors u/s.13
and then held that they are appointed by the State
Government and therefore, appropriate government is the
State Government and so without the sanction of the State
Government, the prosecution would not lie. I am afraid, the
learned Magistrate has not understood the impact of Section
14-AC. Section 14-AC makes the inspector competent to file
the complaint. The said inspector has to put a report in
writing. He has to get the previous sanction of the Central
Provident Fund Commissioner or such other Officer as may
be authorised by the Central Government. So the sanction is
to be obtained only either from the Central Provident Fund
Commissioner or the persons authorised on that behalf by the
Central Government. Now learned counsel had pointed out to
me the sanction order which is marked as Ext.P5 in the case.
CRL.A.Nos.311/2003, 312/2003 and 313/2003
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Ext.P5 is an order of sanction issued by the Regional
Provident Fund Commissioner, Calicut. So unless the
complainant is able to establish that the Regional Provident
Fund Commissioner, Calicut is authorised by necessary
notification by the Central Government to give sanction, then
a prosecution will not lie. But on a reading of Ext.P5 there is a
specific reference to a notification and S.O.549 (E dated
17.10.1973), a photo copy had been made available for
perusal and I feel that the said notification will cover the field.
But the learned counsel for the respondent in the cases would
submit before me that let that be not decided here and he be
permitted to raise the contentions regarding the correctness
and applicability before the court below when the notification
itself is produced. I do not want to deny the opportunity to be
given to the respondent herein, but suffice to say, all these
three cases requires reconsideration at the hands of the
concerned Magistrate. Therefore, the order of acquittal
passed in all these cases are set aside and the matter is
remitted back to the concerned Magistrate for fresh hearing
on the question, whether there is a proper sanction as
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contemplated u/s.14-AC of the Employees’ Provident Funds
and Miscellaneous Provisions Act, 1952. For the said
purpose both the complainant and the accused are permitted
to produce documentary evidence in support of their
respective contention and let the matter be heard and
disposed of in accordance with law. Needless to say if the
court finds that sanction is proper, the court will proceed
further by giving an opportunity to the parties to raise their
contention in support of their cases. It is submitted that the
accused in the case is old and the matter is being looked
after by the children and when an application is filed for
exemption, let the court below consider it sympathetically and
pass appropriate orders. The parties are directed to appear
before the court below on 29.7.2009.
M.N.KRISHNAN, JUDGE
ami.