PROVIDENT FUND INSPECTOR Vs. MOHAMMED

JUDGEMENT

(1.) These Criminal Revision Petitions raising important questions of law were referred to be heard by a Division Bench by one of us, as there was direct conflict on one of the points involved between the decisions of two learned Single Judges of this Court. All these Criminal Revision Petitions arising from judgments passed by the Judicial Magistrate of I Class, Peermade in Summary Trial Cases convicting the accused have been filed challenging the inadequacy of sentence passed against the accused in the respective cases and praying for enhancement of sentence in accordance with due provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, hereinafter called the Act. The accused who is the respondent in all these Revisions is the same person, namely, the Manager, Ranimudy Division No 1, Tea Estate, Peermade, The Provident Fund Inspector, Kottayam, the complainant before the Trial Court is the revision petitioner in all these cases.

(2.) The accusations against the respondent in each of these cases were that he being the Manager of the Estate failed to pay the Provident Fund contributions and administrative charges due for the periods stated in the respective complaints and he thereby committed offences punishable under S.14(1A) and 14 AA of the Act. There was also a prayer in the complaint that the amounts due from the respondent towards contributions and administrative charges might be realised from him under S.14(1C) of the Act. It is said that the accused pleaded guilty to the charges and he was convicted and sentenced to pay a fine of Rs. 40/- or in default to suffer simple imprisonment for 15 days in each of these cases.

(3.) The learned Addl. Central Government Standing Counsel appearing for the petitioner in these revisions submitted that the sentence passed on the respondent, the accused, in all these cases, is quite inadequate; that she Trial Court seriously erred in overlooking the provisions in S.14(1A) of the Act under which imprisonment is compulsory; and the provisions in S.14AA which provide for enhanced punishment and that therefore the sentence passed against the respondent in each of these cases should be enhanced in accordance with the said provisions in the Act. The counsel submitted that no opportunity was given to the prosecution to prove the previous convictions to attract the provisions in S.14AA of the Act; that the complaints in Crl.R.P. Nos.142 and 177 of 1979 are not barred by limitation; that although the complaints in the other cases (Crl. R. P. Nos 171, 174, 175 and 178/79) are prima facie barred by limitation, the offences disclosed in the complaints having been already taken cognizance of by the Trial Court and as the prohibition is only for taking cognizance of the offence, it is now not open to the accused to challenge the legality of the cognizance; that the bar under S 468 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code) being one based on period of limitation does not affect the competence and jurisdiction of the court; that this is therefore only an irregularity which is curable under S 465 of the New Code; that no right is conferred on an accused under S.468 of the New Code; that taking cognizance under this section is only a matter between the prosecution and the court and that the accused is not entitled to come in or question the correctness of action under S 468 of the New Code at the stage of taking cognizance or afterwards as of right. It was also argued that in a revision for enhancement of sentence the accused cannot claim the right conferred on him under sub-s.(3) of S.377 of the New Code; that he cannot as of right plead for an acquittal in a proceeding of this nature, particularly, when be is concluded by the plea of guilty entered in the case, as he cannot retract or retrace that plea in a subsequent proceeding.