STATE Vs. JAGANNATH RAM

JUDGEMENT

(1.) THIS appeal is directed against the judgement dated 28 -2 -78 passed by Smt. B. Devi, Judicial Magistrate, First Class, Bhubaneswar, in 2(c) C. C. No. 472 of 1976.

(2.) STATE (Central Government) is the appellant. Respondent No. 3 is the hotel of which respondents Nos. 1 and 2 are the partners. The hotel is situated at Bhubaneswar. The case of the prosecution is that respondents 1 and 2 failed to submit the statutory returns under paragraphs 36(2)(a), 36(2) (b) and 38(2) of the Employees' Provident Funds Scheme, 1952 within the prescribed time limits. P.W. 1. who claims to be the senior Provident Funds Inspector submitted report against the respondents to the Regional Provident Fund Commissioner and the latter sanctioned prosecution of the respondents. Accordingly prosecution report Ext. 2 was submitted to the court on 9 -11 -76 along with Ext. 1, the sanction order of the Regional Provident Fund Commissioner. The respondents were summoned and put on trial. Two witnesses were examined on behalf of the prosecution and none on behalf of the defence. Prosecution also relied on documentary evidence. The learned Magistrate who tried the can found the respondents not guilty and acquitted them. Hence this appeal.

(3.) I find from the order -sheet of the learned Magistrate that on 9 -11 -76 the period of limitation was extended for the interest of justice. The punishment prescribed for an offence under paragraph 76(b) of the Scheme is imprisonment for a term which may extend to six months, or fine up to Rs. 1,000/ -, or both. Under Section 468 of the Criminal Procedure Code the period of limitation in respect of offences punishable with imprisonment for a term not exceeding one year, is one year. The prosecution report Ext. 2 and the sanction order Ext. 1 further show that the present case was instituted on 9 -11 -76 against the respondents for their failure to submit the statutory returns in Forms 5, 10 and 12 prescribed under the Scheme. Paragraph 36(2)(a) requires the return in Form 5 to be filed within 15 days of the close of each month and similarly paragraph 36(2)(b) requires the return in Form 10 to be filed also within 15 days of the close of each month. Paragraph 38(2) requires the returns to be filed in Form 12 within 25 days of the close of each month. In this case, prosecution relates to the period from April, 1975 to June, 1975. Returns in Farms 5 and 10 should have been filed in respect of the month of April, 1975 by 15th of May, 1975, in respect of the month of May, 1975 by 15th of June, 1975 and in respect of the month of June, 1975 by 15th of July, 1975. Returns of Form 12, in this case, should have been filed for the month of April, 1975 by 25th of May, 1975, for the month of May, 1975 by 25th of June, 1975 and for the month of June, 1975 by 25th of July, 1975. Therefore, offences for failure to submit the returns, as alleged by the prosecution, were committed on 16th May, 1975, 16th June, 1975 and 16th July, 1975 and 26th May, 1975, 26th June, 1975 and 26th July, 1975. By the date the prosecution report was submitted to court on 9 -11 -76, the period of limitation of one year in respect of the aforesaid offences had obviously already expired. Ii is clear from the records that no petition for condonation of delay was filed by the prosecution nor were any grounds disclosed by the prosecution to the court justifying extension of the period of limitation. No doubt Section 473 of the Criminal Procedure Code gives discretion to the court to take cognizance of an offence after expiry of the period of limitation provided it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to as so in the interest of justice. It is cardinal principle of law that whenever a discretion is vested in a court, it must always be judiciously exercised. What are the facts and what are the circumstances of this case which may lead a court to the conclusion that the delay has been properly explained or that it is necessary to condone the delay in the interest of justice ? Nothing has been discussed or stated by the learned Magistrate in the order dated 9 -11 -76. As already noted, no grounds have been put forward by the prosecution explained the delay and the court appears to have improperly exercised its discretion in extending the period of limitation on 9 -11 -76 in the absence of any material before it. Such mechanical extension of the without any basis is clearly an abuse of the process of law. In the absence of any materials before the court it must be held that the delay in launching prosecution in this case has not at all been explained nor can it be said that in this case it is necessary to condone the delay in the interest of justice. Therefore, cognizance should not have been taken after expiry of the period of limitation.