ORDER
1. Criminal Petition Nos. 1330 of 1989 and 330 of 1990 to 348 of 1990 are preferred by the petitioners against the orders of the learned Presiding Officer of the Special Court for Economic Offences in C.C. Nos. 104 of 1986 to 123 of 1986, setting aside the order of dismissal of the complaints filed in those cases.
2. Since both the parties in these cases are same and the complaints are filed by the respondent in respect of different periods for non-payment of contribution to Provident Fund by the petitioners and as common questions of law arise in these cases I have heard these petitions together and I am passing a common order.
3. The respondent filed a complaint against the petitioners for the offences punishable u/Ss. 14(1A), 14(A) and 14(AA)/14(1B), of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (which will hereinafter be referred to as “the Act”). On 27-11-1987 the complainant was absent and, therefore, the learned Presiding Officer of the Court of Economic Offences, Bangalore City, Bangalore, acquitted the petitioners under S. 256, Cr.P.C. In January, 1988, an application came to be filed on behalf of the respondent under S. 300(5) Cr.P.C. and the learned Presiding Officer allowed that application and set aside the order acquitting the petitioners under S. 256, Cr.P.C. It is this order that is challenged by the petitioners in these cases.
4. In Bindeshwari Prasad Singh v. Kali Singh the Supreme Court has held as follows (Para 4 of Cri LJ) :-
“There is no provision in Cr.P.C. empowering a Magistrate to review or recall a judicial order passed by him. Inherent powers under S. 561-A are only given to High Court and unlike S. 151, C.P.C. subordinate criminal courts have no inherent powers.”
In Maj Genl. A. S. Gauraya v. S. N. Thakur again the Supreme Court on this point of law has held as follows (Paras 9, 10 (of Cri LJ) :-
“So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction, to restore the case. A second complaint is permissible in law if it could be brought within the limitations imposed by the Supreme Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, . Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P.C. does not contain any provision enabling the criminal court to exercise such an inherent power. Also, what the Court has to see is not whether the Code contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have.”
This Court in Laxminarayan v. Ramaswamy ILR 1989 Karnataka 1158 : (1989 Cri LJ NOC 148 (Kant) has held as follows :-
“Applying the Decision of the Supreme Court , laying down that in the absence of a provision empowering a Magistrate to review or recall an order passed by him and in the absence of inherent powers in subordinate Criminal Courts, the Magistrate has absolutely no jurisdiction to recall the order dismissing the complaint, order in Revision affirmed, although rejecting the reasons given by learned Sessions Judge.”
A reading of the relevant provision of law and the rulings cited above makes it clear that the Magistrate has got to powers to recall or review his order of acquittal of the accused passed u/S. 256, Cr.P.C. Therefore, it cannot be disputed that the order passed by the learned Presiding Officer which is challenged by the petitioners in these cases is an order passed by him without any power to pass such orders and such an order cannot be sustained in law. The petitioners have challenged these orders after sufficient long delay.
5. A mere delay cannot be a ground to refuse to interfere with such an order when it is found to be a nullity. In Abdul Jabbar v. Devarajaiah, ILR 1989 Karnataka 705 this Court has held as follows :-
“Challenge to an order which is a total nullity becomes available and is capable of assertion as a bar at any time; while there can undoubtedly be no demurrer against that principle, what has to be seen is that the same becomes operative only in cases where the orders put-forward in defiance of legal action are orders which are absolutely null and void being totally without jurisdiction. It is trite law that an order which is without jurisdiction is one which is clearly a non est factum or one which does not exist in the eye of law at all. Therefore, putting forward such an order is of little efficacy since the order being a total vacuum it neither creates nor destroys any rights, that is the reason why a challenge to such an order is held to be permissible, even when the challenge is not compressed within any prescribed time frame. This is the logic and legal etiology behind the principle of availing the right to challenge and order which is a total nullity without fear of offending any prescription as to time.”
Similarly in B. M. Abdul Rahiman v. State of Karnataka 1990 Cri LJ 2406 this Court has held as follows (at page 2407) :-
“6. As already noticed in Haji Mastan’s case 1984 Cri LJ 610, the petitioner before the Bombay High Court, he approached the Court for relief of getting the detention order quashed only in 1981 though the order in question was passed in 1974. Therefore, there cannot be any question of laches. Something has been done contrary to law. Mere delay in approaching this Court cannot clothe illegal action with legality.”
Therefore, in view of these principles of law, the order of the Magistrate cannot be sustained merely on account of laches on the part of the petitioner to challenge the said order in those proceedings.
6. The learned counsel for the respondent submitted that it cannot be disputed that the Magistrate has no powers to recall his order of acquitting the accused under S. 256, Cr.P.C. But, in view of the fact that the prosecution of the petitioners was under the Act which is a welfare legislation and that there were justifiable grounds for the complainant to remain absent on that day, this Court has got powers to set aside the order of dismissal of the complaint passed by the learned Presiding Officer on 27-11-1987. It is to be noted that the respondent itself has not chosen to challenge the order of dismissal of the complaint by the Presiding Officer either by way of Revision or by way of petition u/S. 482, Cr.P.C. If this court were to exercise its revisional powers u/S. 401, Cr.P.C. and set aside the order of dismissal of the complaint passed by the Presiding Officer on 27-11-1987, it will be circumventing on the impugned order which is totally illegal. Moreover, it is brought to my notice by the counsel for the petitioners that the contribution has been paid by the petitioners. In view of these circumstances, I am of the opinion that the prayer of the learned counsel for the respondent does not deserve to be granted.
7. Hence, I proceed to pass the following order :- The petitions are allowed and the orders of the learned Presiding Officer setting his order of acquitting the petitioners under S. 256, Cr.P.C. and restoring the complaints, are hereby set aside.
8. Petitions allowed.
