CRIMINAL MISCELLANEOUS No.2772 OF 2003
In the matter of an application under Section 482 of the Code of
Criminal Procedure
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SACHIN KUMAR TULSIYAN, Son of Sri Binod Kumar Tulsiyan,
resident of Gandhi Path , Mahabir Chowk, P.S. Saharsa, District-
Saharsa ------------------ Petitioner
Versus
1. THE STATE OF BIHAR
2. Sri Bijay Kumar, Labour, Superintendent-cum Inspecting Office,
Minimum Wages Act, 1948, Saharsa ———– Opp.Parties.
———-
For the petitioner: S/Sri N.K.Agrawal, Sr. Advocate
D.N.Tiwary, Advocate
For the State: Sri Shivesh Chandra Mishra, A.P.P.
———-
P R E S E N T
THE HON’BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J. The sole petitioner, who is proprietor of M/S Sachin
Hardware Stores, Loha Dukan , Mahavir Chowk, Saharsa, has
approached this Court with a prayer to quash an order dated
13.05.2002 passed by the learned Chief Judicial Magistrate, Saharsa
in Misc.Case No. 74 of 2002 . By the said order, the learned Chief
Judicial Magistrate has taken cognizance under Section 22A of the
Minimum Wages Act, 1948.
2. Short fact of the case is that on 25.9.2001, an
inspection was conducted by the Labour Superintendent-cum-
Inspecting Officer , Minimum Wages Act and it was found that
several provisions of the Minimum Wages Act were violated by the
petitioner. Thereafter, a complaint was filed on 30.3.2002 alleging
therein that the petitioner had committed an offence punishable
under Section 22 A of the Minimum Wages Act. Since it was an
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official complaint, the learned Chief Judicial Magistrate by its order
dated 13.5.2002 took cognizance of offence under Section 22A of the
Minimum Wages Act.
3. Aggrieved with the order of cognizance, the petitioner
approached this Court by filing the present petition, which was
admitted on 26.2.2004. While admitting, it was directed that pending
disposal of this application, interim order dated 6.5. 2003 shall
continue. The order of stay is still continuing.
4. Learned counsel appearing on behalf of the petitioner,
while challenging the order of cognizance submits that the order of
cognizance is barred under the provisions contained in Section
22B(2)(b) of the Minimum Wages Act. It was submitted that there is
statutory provision for filing complaint within six months and no
court is entitled to take cognizance if the prosecution report is filed
after the statutory period of six months. Learned counsel for the
petitioner, while arguing the case, submits that in this case the date of
occurrence is 25.9.2001 and the complaint was filed on 30.3.2002
and cognizance order was passed on 13.5.2002. Accordingly, it was
submitted that the prosecution report was filed after expiry of the
statutory period of six months and as prescribed under Section
22B(2)(b) of the Minimum Wages Act the learned Magistrate was
not entitled to take cognizance and on this ground alone, it was
submitted that the order of cognizance is liable to be set aside.
Learned counsel for the petitioner , while placing the present petition
has relied upon a Judgment of this Court reported in 1998 BBCJ 541;
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5. Sri Shivesh Chandra Mishra, learned Addl.Public
Prosecutor appearing on behalf of the State has vehemently opposed
the prayer of the petitioner while referring to the statement made in
paragraph 5 of the counter affidavit, it has been submitted that the
date of occurrence mentioned as 25.9.2001 is not correct. Actually
this very date is the date of inspection. It was submitted that in the
present case, the date of occurrence would be considered as
13.10.2001 when he was given opportunity and failed to rectify
violations committed by him. Accordingly, it has been prayed to
reject the present petition.
6. Besides hearing learned counsel for the Parties, I have
also perused the materials available on record. There is no dispute
that as per the provision contained in Section 22B(2)(b) of the
Minimum Wages Act, no court is entitled to take cognizance under
Section 22 A of the Minimum Wages Act if the prosecution report is
filed beyond the period of six months from the date of occurrence.
So far as the stand taken by Opp.Party no.2 in its counter affidavit
that the date of occurrence will be considered as the date on which
the petitioner failed to rectify the defect is concerned, the Court is of
the opinion that the said stand is not in accordance with law. In the
present case, when inspection was done i.e. on 25.9.2001, it was
noticed that the petitioner had violated the statutory provisions of the
Minimin Wages Act and, as such, the Court is of the opinion that the
date of occurrence would be considered as the date on which the
offence was noticed on inspection by the complainant. Accordingly,
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in the present case, the prosecution report was filed beyond the
statutory period as prescribed under Section 22B (2)(b) of the
Minimum Wages Act . The Court has got no option but to quash the
order of cognizance.
7. Accordingly, the order of cognizance dated 13.5.2002
passed by the learned Chief Judicial Magistrate, Saharsa in
Misc.Case No.74 of 2002 is hereby set aside and the petition stands
allowed.
( Rakesh Kumar, J.)
Patna High Court, Patna
Dated : the 06th September,2010
Nawal Kishore Singh/ N.A.F.R.