A P JAIN Vs. C N JOTWANI INSPECTOR

JUDGEMENT

(1.) At the threshold of a prosecution powers of the High Court have been invoked by Directors of a Public Limited Company which has admittedly failed to pay (and retained with itself) contributions deducted from the wages of the employees under the Employees State Insurance Act 1948 (E.S.I. Act). When financially powerful economic offenders successfully stall proceedings in Courts for years at the very doorsteps of Courts by disingenuous technical weapons the image of the judicial system suffers an eclipse in the eye of the common man. Even so if the process of law is being misused or ends of justice pressingly so demand inherent powers may have to be exercised if inevitable. This perspective must loom large on the horizon in this petition by the petit- ioners who contend that prosecution should not have been instituted against them for failure to submit the contribution cards and returns under the Employees State Insurance Act 1948 (E.S.I. Act) even in respect of amounts deducted from the salaries of the employees of Public Limited Companies of which they are Directors. The question will have to be examined from the angle as to whether it would be right for the High Court to decide questions of facts and law which can appropriately and more conveniently be decided upon material placed before the trial Court by the learned trial Magistrate. In other words the question is whether the inherent powers of this High Court which can be exercised inter alia to prevent abuse of the process of law or to secure the ends of justice should be invoked by converting the High Court into an original forum for decision of preliminary questions of law or questions of fact at the instance of the petitioners.

(2.) This question arises in the context of the Directors of two Public Limited Companies namely M/s. Priyalaxmi Mills Baroda and M/s. Shree Shubhalaxmi Mills Company. In both the matters the facts are similar and the inherent powers of this High Court under sec. 482 of the Criminal Procedure Code of 1973 have been invoked on similar grounds. One of the Directors in both the matters is common. It will be therefore convenient to dispose of both these petitions by this common judgment.

(3.) Before dealing with the submissions urged on behalf of the petitioners a few facts may be recounted. Miscellaneous Criminal Application No. 3/76 arises from Criminal Case No. 2608/75 pending in the Court of the Metropolitan Magistrate 5 Court. The prosecution is in relation to the affairs of M/s. Shree Shubhalaxmi Mills Ltd. Cambay. It is the prosecution case that though the employees contribution was deducted from the wages of the employees of the said Company contribution cards and returns required to be submitted under the relevant provisions of E.S.I Act were not submitted within the prescribed time by the principal employers who were responsible for submission of such returns and cards. Default it is said has taken place in relation to periods ended September 28 1974 November 30 1974 January 25 1975 and March 29 1975 As defaults in relation to the first two periods have become immune from prosecution on account of delay the prosecution giving rise to the present petition relates to periods ended January 25 1975 and March 29 1975 The prosecution was instituted after obtaining the requisite sanction from the Regional Director of the Employees State Insurance Corporation of Ahmedabad. In the said order the names of the petitioners are specified The complaint was lodged by Shri C. N. Jotwani Inspector Employees State Insurance Corporation on September 1 1975 and the learned Magistrate issued process on the same day. The complaint was not accompanied by any list showing the names of witnesses other than the complainant intended to be examined by the prosecution.