BUHARI SONS (P) LTD Vs. PROVIDENT FUND INSPECTOR

JUDGEMENT

(1.) The former set of Criminal Miscellaneous Petitions are under S. 482 of the Crl.P.C. quash the criminal proceedings launched against the petitioners and pending on the fife of the VI Metropolitan Magistrate.

(2.) In these cases the petitioners are being prosecuted for offences under Ss. 14(2), 14A and 14AA of the Employees' Provident Funds and Family Pension Fund Act, 1952 read with paragraphs 76(a), (b) and (c) of the Employment Provident Funds and Miscellaneous Provident Scheme for failure to submit the return in Form 12 as required by the provisions of the Scheme for various months during the year 1976 before the due date and the (sic) Forms 3 and 6 and 5 and 10 before the (sic) date. The complaints against the petitioners were filed after the expiry of the period of limitation laid down by S. 468, Crl.P.C. Along with the complaints, petitions were also filed for condoning the delay stating in those petitions the reasons which caused the delays and it is stated therein that the delays were merely procedural. The learned Magistrate condoned the delay and took cognizance of the offences. It is now contended in these petitions that the learned Magistrate should not have condoned the delay without having given an opportunity to the accused of making their representation to the Court against the condonation of the delay. Other contentions have also been raised in these petitions for quashing the criminal proceedings, but those contentions have not been pressed by the learned counsel for the petitioners, Mr. Panchapakesan. S. 468, Crl.P.C. reads as follows:

(3.) Admittedly, in these cases the complaints against the petitioners have been laid before the court after the period of limitation prescribed under S. 468, Crl.P.C. Hence, it was that petitions were filed under S. 473 stating the facts which have occasioned the delay and explaining the delay so that the Court may take cognizance of the offences even after the expiry of the period of limitation. The learned Magistrate has on being satisfied that the delay had been properly explained and that it is necessary to take cognizance of the offence even after the expiry of the period of limitation in the interests of justice, taken cognizance of the offences. The grievance of the petitioners it that the Magistrate has done so without even giving an opportunity to the petitioners to make their representations against the condonation of the delay. It might be noted that S. 473 does not stipulate that before so taking cognizance of the offence after the Magistrate is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice, an opportunity should be given to the accused to be heard. It might also be noted that the Magistrate has to be so satisfied that the delay had been properly explained or that it is necessary to take cognizance of the offence even after the expiry of the period of limitation in the interests of justice before taking cognizance of the offence, for S. 468, Crl.P.C. raises a bar on taking cognizance of the offence after the expiry of the period of limitation. Without that bar being lifted, the Magistrate cannot take cognizance of the offence. At that pre-cognizance stage, the accused does not appear in the picture at all, for, it is only after so taking cognizance that the Magistrate has to issue process under S. 204. It is, however, contended that even though there is no provision which requires the issue of a notice to the accused person before the Magistrate considers, the facts and circumstances placed before it by the prosecution to explain the delay in filing the complaint, before the expiry of the period of limitation, yet the interests of natural justice required giving of such an opportunity to the accused of being heard. As far as the State of Tamil Nadu is concerned, I notice that the procedure adopted the Magistrates is not uniform. In the case of police charge-sheets, in some cases in the charge-sheet itself the reasons for the delay are set out and the Magistrate after perusing the same takes cognizance of the offence. In some cases the prosecution files a regular memo or a petition along with the charge sheet explaining the delay and thereafter the Magistrate after perusing-the same, takes cognizance. Some Magistrates, however, have taken cognizance, only after issuing notice to the accused and after hearing the accused ' with reference to the question of limitation.