Allowed

The Regional Director Emp. State Insurance Corpn. v. Shri Shyam Bhatia and Ors.

Bombay HC14 Feb 2008REVN/131/2000

Case brief

AI extract

What is this about?

Court allowed the revision application against the Metropolitan Magistrate's order discharging the respondent due to inordinate delay. The High Court held that the Supreme Court had overruled the time-barring effect of Common Cause, thus the impugned order of discharge could not be sustained.

What did the court decide?

Revision application allowed, impugned order of discharge set aside, case remanded to Magistrate for hearing.

The Regional Director Emp. State Insurance Corpn… — Criminal Trial and Appeal | Bombay HC (2008)

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VPH

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL REVISION APPLICATION No. 131 OF 2000

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The Regional Director, ) Employees State Insurance ) Corporation, Panchdeep Bhavan) Lower Parel, Mumbai-400 013. ) ... Applicant vs. 1. Mr. Shyam Bhatia, ) Proprietor of M/s.Hindustan Labels Unit No.3, 2nd Floor Ghanshyam Indl. Estate, ) Andheri (West), Mumbai-58 ) 2. The state of maharashtra ... Respondents

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Mr. H. V. Mehta, for the applicant.

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Mr. K. V. Saste, APP for the respondent No.2.

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CORAM : D. G. KARNIK, J.

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DATE : FEBRUARY 14, 2008

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ORAL JUDGMENT

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. Heard Mr. Mehta for the applicant and the

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learned APP for the respondent No. 2 State. Advocate

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for respondent No.1 is absent when called.

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This revision application is directed against the

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and order dated 29th of September 1999 of the Metropolitan Magistrate, 25th Court, Mazgaon, Mumbai, discharging the respondent No.1.

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The complainant, Inspector of Employees State

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Insurance Corporatio	n (for short	the "ESI
Corporation"), filed	a complaint in	the court of
Metropolitan Magistr	ate against the	respondent No.1,
alleged that resp	ondent No.1 had	failed to pay
employer’s and	employees’ contribution,	in accordance
with provisions of	section 39 and 40	of the Employees
State Insurance Act,	1948 (for short th	e "E.S.I. Act")
read with Regulatio	n 31 of the	E.S.I. (General)
Regulations 1950.	In the complainant	it was further
alleged that by	non payment of the	compensation, the

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respondent No.1 had committed an offence punishable

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under section 85 of the E.S.I. Act.

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4.	T	he complai	nt was filed on	8th of	April 1	994. On
5th	July	199	9 the	res	pondent	No.1/accused	filed	an
application		before	the	lear	ned	Magistrate,	stating	that
he	had	been	attending	the	Cou	rt continuously	for	more
than	two	years	but	the	trial	had not co	mmenced	and
hence	in	acco	rdance	with	the	directin given	by	the
Hon’ble	S	upreme	Court in	the	case	of Common	Cause	Vs.

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Union of India & Ors. [ 1995 AIR SCW, 2279] the

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respondent No.1 was entitled to be discharged.

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The revision applicant opposed the application

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for dis	charge	inter	-alia	on	the	gro	und tha	t the		offence
under	the	E.S.I.		Act	was	an	economic	offe	nce	and
therefore,		the	direction		given	in	the	cas	e	of
"Common-c	ause"		was	not		applica	ble.	The		learned
Magisterate		repeled		the	conte	ntion	of	the	a	pplicant
that	the	offence	was	an	ec	onomic	offence	and	held	that
since	the	trial	had	not	comm	enced	for a	period	of	five
years,	the		applicant	was	en	titled	to	be	dis	charged.
Accordingly		the	lear	ned	Magi	strate	passed	the		order

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discharging the applicant, relying on the decision of

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Hon’ble Supreme Court in the case of "Common-cause".

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The learned counsel for the applicant submitted

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that decision of the Hon’ble Supreme Court in the case of "Common-cause" is no longer good law and has been over-ruled by Bench of seven judges, of Supreme Court,

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rendered in P. Ramchandra Rao Vs. State of Karnataka

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reported in [(2002)4 Supreme Court Cases 578] .

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In paragraph 29(4) of the decision in P.

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Ramchandra Rao’s case, the Hon’ble Supreme Court

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has observed that:

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"It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal

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proceedings. The time-limits or bars limitation prescribed in the several di	of rections
made in Common Cause (I), Raj Deo Sharma (I)	and
Raj Deo Sharma (II) could not have been	so
prescribed or drawn and are not good law.	The
criminal courts are not obliged to te	rminate
trial or criminal proceedings on account of	lapse
of time, as prescribed by the directions made	in
Common Cause case (I), Raj Deo Sharma case	(I)
and (II). At the most the period of	time
prescribed in those decisions can be taken by	the
courts seized of the trial or proceedings to	act
as reminders when they may be persuaded to	apply
their judicial mind to the facts	and
circumstances of the case before them	and
determine by taking into consideration	the
several relevant factors as pointed out in	A.R.
Antulay case and decide whether the trial	or
proceedings have become so inordinately	delayed
as to be called oppressive and unwarranted.	Such
time-limits cannot and will not by themselves	be
treated by any court as a bar to	further
continuance of the trial or proceedings and	as
mandatorily obliging the court to terminate	the
same and acquit or discharge the ac	cused."

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Bar	of	limit	ation		pre	scribed	in the	case	of	C	ommon
Cause	is	no	longer		a	good	law and	the	accused	is	not
entitled	to		a	dis	char	ge or	acquittal	mer	ely	on	the
ground	that	the	trial		has	not	been	comp	leted	within	any
specified		time.		No		court	shall		be	entitled	to
terminate		the	trial	o	r	acquit	or dis	charge	an	a	ccused

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on the ground that the trial is not commenced within

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the period prescribed in " Common Cause ".

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8.	In the	present	case, responde	nt No.1 has	been
discharged	on		the sole	ground	that	the trial	had	not
commenced	w	ithin	the	specified	tim	e and re	lying	upon
the	decision	of	the Hon’	ble Supre	me	Court in	the	case
of	Common	Caus	e. Si	nce that	d	ecision is	over-ruled	by
the	decision	of	the larg	er Benc	h	of the	Supreme	Court,
the d	ecision	of	the	learned		Magistrate	cannot	be
sustained.		Acc	ordingly,	the	Re	vision Appl	ication	is
allowed	and	the	impugned	order	is	set aside	and	the
case	is	remand	ed back	to the	lea	rned M	agistrate	for

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hearing and decision in accordance with law. Rule is

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made absolute to the extent, indicated above.

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Sd/[ D. G. KARNIK, J.]

The Regional Director Emp. State Insurance Corpn. v. Shri Shyam Bhatia and Ors.

Case brief

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The Regional Director Emp. State Insurance Corpn. v. Shri Shyam Bhatia and Ors.

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The Regional Director Emp. State Insurance Corpn. Vs Shri Shyam Bhatia . and Ors. .

The Regional Director Emp. State Insurance Corpn. Vs Shri Shyam Bhatia . and Ors.