MITHLESH KUMAR GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) THE applicant has come forward with a prayer that the order dated 29-4-1980 of the Special Judicial Magistrate, Agra in Criminal Case No. 211 of 1982 under Secs. 467 and 47!, IPC (Mithlesh Kumar v. Bhagwan Dass Sathi) dismissing the applicant's complaint and the order dated 4-11-1980 of the Second Additional Sessions Judge in revision may both be quashed, and the Court may pass such orders as it deems fit.

(2.) IT would appear that Sri Bhagwan Dass Sathi who is a trade union leader preferred an application before the Assistant Labour Commissioner on behalf of a large number of workers making a claim for certain amount on their behalf. The Assistant Labour Commissioner in pursuance of such application issued a certificate as is provided for in Section 6H (1) of the Industrial Disputes Act. The applicant filed a criminal complaint urging that out of the persons on whose behalf the application was preferred by opposite party no. 2, 10 persons are genuine claimants and one, Damely, Sohan Lal, was dead by that time and the remaining others had neither signed nor authorised the opposite party no. 2 to make any claim on their behalf. In the complaint it was urged that actually the signatures of such persons were forged and a forged document was prepared and filed by opp. party no. 2 as a claim before the Assistant Labour Commissioner. IT seems that both the courts below made a bias approach in the sense that the Judicial Magistrate held that the complaint was barred by Section 195 CrPC while the revisional court held that though it is not so the complaint is barred by Section 22 of the Industrial Disputes Act. Of course in addition to that the Magistrate held that prima facie case is not disclosed which conclusion was upheld by the revisional court.

(3.) AS regards bar under section 22 of the Industrial Disputes Act is concerned two conditions are to be satisfied-(1) the act is done or intended to be done in good faith and (2) the act is done as such in pursuance of the Industrial Disputes Act or any rule or order made or deemed to be made thereunder. If prima facie any offence is disclosed the persons charged with an offence can very well come forward and take shelter behind that section but before such person puts,in appearance and takes any such plea of that nature either by means of application or otherwise at any later stage and the matter is examined, it is not possible to record any finding of fact on this point and without a finding of fact the bar could not be attracted. The bar contained under Section 22 of the Industrial Disputes Act is not absolute but qualified. The two conditions aforesaid have to be satisfied and then the bar would operate. In the result it would appear that the very basic approach of the Magis- trate as well as the revisional court is erronous. It is stated in the complaint that opposite party no. 2 filed a claim application on behalf of a number of people and some signatures were forged and one man was not even alive. It is alleged that it is the opposite party no. 2 who identified the signatures. The revisional court laid stress upon the case of Hira Lal Jain v. Delhi Administration, AIR 1972 SC 2598. It is a case in which an Advocate engaged by some persons for identifying them concerning land acquisition compensation money claimed, identified them though they were not genuine persons. That was a case of lawyer and the consideration that weighed with the court was that in district court men in fact sometimes make wrong identification by mis-representation. The matter is a mixed question of fact and law. It is always open to the opposite party after putting appearance to raise such plea which the court would consider. I do not desire to express any further opinion on facts as one or the other party may be embarrassed by any observation and any prejudice may be caused. The best course in the circumstances of the present case is to quash the order dated 29-4-1980 of the Magistrate and the order dated 4-11-1980 of the revisional court. In fact, opposite party no. 2 had already been summoned. The Magistrate has to observe the procedure laid down in Sec- tions 244 and 245 CrPC unless even before recording any further evidence he finds it a case for discharge. I may also mention that a plea under Section 22 of the Industrial Disputes Act is a plea based on mixed question of facts and law. Unless on the facts established before the Magistrate it is shown prima facie before the Magistrate that the two conditions are made out a bar of Section 22 of the Industrial Disputes Act as such would not apply. It will be open to the Magistrate to consider this plea. I am surprised that how the revisional court proceeded to consider such type of plea neither urged nor raised before the trial court.