Allowed

Ms Bokaro Steel Plant Represented through John Tapan Kongari v. the State of Jharkhand

Jharkhand HC1 Aug 2023Cr.M.P./106/2022

Case brief

AI extract

What is this about?

Petitioners sought quashing of criminal proceedings under the EPF & MP Act and EDLIS against a company and its Chief Executive Officer. The Court dismissed the petition against the company but quashed proceedings against the officer, ruling that summoning a post/designation without specific overt act allegations is an abuse of process.

What did the court decide?

Quashed the criminal proceedings in Complaint Case No.125 of 2016 including the order taking cognizance dated 12.02.2016 against Petitioner No.2 (Pawan Kumar Singh).

Ms Bokaro Steel Plant Represented through John Tapan… — Quashing and FIR | Jharkhand HC (2023)

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Cr. M.P. No.106 of 2022

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.106 of 2022

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M/s Bokaro Steel Plant, Ispat Bhawan, Bokaro Steel City, Bokaro, represented through John Tapan Kongari S/O Late P.L. Kongari aged about 54 years, presently working as General Manager Law, SAIL Bokaro Steel Plant, resident of Quarter No.1021, Sector 5A P.O. Bokaro, P.S. Sector 6, District Bokaro.

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Pawan Kumar Singh S/O Late A.P. Singh Aged about 62 years resident of Quarter No.2030, Sector 5A, P.O. B.S. City, P.S. Sector -6, District Bokaro former Chief Executive Officer, M /s Bokaro Steel Plant, Ispat Bhawan, Bokaro Steel City, Bokaro, P.O. Bokaro Steel City, P.S. Bokaro Steel City, District Bokaro

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Versus

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The State of Jharkhand

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Central Board of Trustee, Employee’s Provident Fun, represented through Inspector appointed under Section 13 of the Employee’s Provident Fund & Miscellaneous Provisions Act, 1952 (Enforcement Officer, Bokaro), having its office at Sector 1, P.O. Bokaro, P.S. B.S. … City, District Bokaro. Opposite Parties

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For the Petitioners : Mr. Indrajit Sinha, Advocate Mr. Bibhash Sinha, Advocate Mr. Ankit Vishal, Advocate For the State : Mr. Satish Prasad, Addl. P.P. For the O.P. No.2 : Mr. Rupesh Singh, Advocate Mr. Jagdeesh, Advocate

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding in connection with

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Cr. M.P. No.106 of 2022

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Complaint Case No.125 of 2016 [Complaint Case (EPF) No.125 of 2016] including the order taking cognizance dated 12.02.2016 passed by learned Chief Judicial Magistrate, Bokaro whereby and where under cognizance of the offence under Para-29 (d) of the Employee’s Deposit Linked Insurance Scheme, 1976, read with Section 14 (2) of the Employee’s Provident Fund & Miscellaneous Provisions Act, 1952 and under Para-76 (b) and (d) of Employee’s Provident Fund Scheme read with Section 14 (2) of the Employee’s Provident Fund & Miscellaneous Provisions Act, 1952, has been taken and summons were issued to the petitioners, now pending in the court of learned Judicial Magistrate-1^st Class, Bokaro.

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The brief facts of the case is that the complaint was filed by the Enforcement Officer/Provident Fund Inspector, Bokaro alleging therein that the accused person of the complaint had to submit return in prescribed format before the Regional Office of Employee’s Fund Organization, Ranchi within time but they failed to comply with the provision enshrined in paragraph 8 (1) of the Employee’s Deposit Linked Insurance Scheme, 1976 read with Section6C (4) (a) of the Employee’s Provident Fund & Miscellaneous Provision Act, 1952 which is an offence punishable under para-29 (d) of the Employee’s Deposit Linked Insurance Scheme, 1976 read with Section 14 (2) of Employee’s Provident Fund & Miscellaneous Provision Act, 1952 and also failed to submit the return of ownership in Form-5A in contravention of para-36A of the Employee’s Provident Fund Scheme which is an offence punishable under para-76 (b) & (d) of the Employee’s Provident Fund Scheme read with Section14 (2) of the Employee’s Provident Fund & Miscellaneous Provision Act, 1952.

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The learned Chief Judicial Magistrate, Bokaro prima facie found the case punishable for the said offences and took cognizance thereof vide order dated

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Cr. M.P. No.106 of 2022

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12.02.2016 against the Chief Executive Officer, Bokaro Steel Plant, Bokaro and M/s Bokaro Steel Plant, Ispat Bhawan, Bokaro Steel City, Bokaro.

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Learned counsel for the petitioners submits that the petitioners do not press the instant Cr.M.P. for quashing of the entire criminal proceeding in connection with Complaint Case No.125 of 2016 [Complaint Case (EPF) No.125 of 2016] including the order taking cognizance dated 12.02.2016 passed by learned Chief Judicial Magistrate, Bokaro whereby and where under cognizance of the offence under Para-29 (d) of the Employee’s Deposited Linked Insurance Scheme, 1976, read with Section 14 (2) of the Employee’s Provident Fund & Miscellaneous Provisions Act, 1952, and under Para-76 (b) and (d) of Employee’s Provident Fund Scheme read with Section 14 (2) of the Employee’s Provident Fund & Miscellaneous Provisions Act, 1952, is taken and summons were issued to the petitioners, now pending in the court of learned Judicial Magistrate-1^st Class, Bokaro in respect of the petitioner No.1 namely M/s Bokaro Steel Plant, Ispat Bhawan, Bokaro Steel City, Bokaro, represented through John Tapan Kongari S/O Late P.L. Kongari aged about 54 years, presently working as General Manager Law, SAIL Bokaro Steel Plant, resident of Quarter No.1021, Sector 5A P.O. Bokaro, P.S. Sector 6, District Bokaro and seeks permission of this Court to withdraw this Cr.M.P. so far as it relates to the petitioner No.1 with liberty to raise all the grounds before the appropriate court at appropriate stage.

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Accordingly, this Cr.M.P. is dismissed as withdrawn with liberty to the petitioner No.1 to raise all the grounds taken in this Cr.M.P. before the concerned court at appropriate stage.

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So far as petitioner No.2 namely Pawan Kumar Singh S/O Late A.P. Singh Aged about 62 years resident of Quarter No.2030, Sector 5A, P.O. B.S. City, P.S. Sector -6, District Bokaro former Chief Executive Officer, M /s Bokaro

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Cr. M.P. No.106 of 2022

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Steel Plant, Ispat Bhawan, Bokaro Steel City, Bokaro, P.O. Bokaro Steel City, P.S. Bokaro Steel City, District Bokaro is concerned, learned counsel for the petitioners relies upon the judgment of a co-ordinate Bench of this Court in the case of Suma Devi vs. The State of Jharkhand & Others passed in Cr.M.P. No.741 of 2016 dated 21.06.2017 paragraphs-22 to 24 and 27 of which read as

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under:-

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“22. In the case of Krishnan & Anr. Versus Krishnaveni & Anr. reported in (1997) 4 SCC 241, the Hon’ble Supreme Court, referring to Section 11 of the I.P.C. has held that the word ‘person’ would, therefore, include not only natural person but also juridical person in whatever form designated and whether incorporated or not. Thus, there are two types of persons – natural person and juridical person, i.e., a legal person. This legal person is a subject matter other than a human being to which the law attributes personality.

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23. Thus, an offence prima facie has to be committed by a natural person or a juridical person, i.e., body of persons, corporate or association whether incorporated or not, who, by virtue of some statute has been recognized to be a person, i.e., whose personality has been attributed by law. Thus, only these type of persons can be summoned for committing an offence under the I.P.C.

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24. It is also worthwhile to note the provisions for issuance of summons in the Code of Criminal Procedure. Issuance of summons is governed under Chapter VI of the Code of Criminal Procedure. Section 62 prescribes as to how a summon should be served. Section 62(2) of the Cr.P.C. mandates that, the summon shall, if practicable, be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. Sub section (3) of the said Section further provides that every person on whom summon is so served, shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. Section 63 of the Cr.P.C. provides as to how a summon should be served on corporate bodies and societies. Thus, from the aforesaid provisions, it is clear that Section 62 provides for service of summons on persons and Section 63 of the Cr.P.C. provides for service of summons on corporate bodies and societies. The word 'person' is not defined in Code of Criminal Procedure, but Section 2(y) of the Cr.P.C. provides that words and expressions used in the Code of Criminal Procedure and not defined, but defined in Indian Penal Code have meaning respectively assigned to them in that Code. This means that definition of the word 'person', as mentioned in the I.P.C. will apply to Cr.P.C. also. So, it is clear that summons can only be issued against a natural person, who has to sign and receive a copy of the same or in case of corporates in the manner prescribed in the Code.

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27. In the case in hand, Bharat Coking Coal Limited – a Company incorporated under the Companies Act, is not an accused and no allegation has been attributed against the Company. The accused are :- (1) Chief Manager, B.C.C.L., Kusunda Area; (2) Project Officer, B.C.C.L., Godhar Colliery; (3) Deputy Personnel Manager, B.C.C.L.,Godhar Colliery; (4) Chief Office Clerk, B.C.C.L., Godhar Colliery; against whom summons have been ordered to be issued. Since these are the post/designation of the

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Cr. M.P. No.106 of 2022

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employees of the Company, they are neither a natural nor juridical person. Further, the I.P.C. does not attribute any personality to these posts. That being the position, they cannot be summoned to face trial independently. It is pertinent to mention here that the juridical person, i.e., the Company B.C.C.L. is not an accused in the complaint case.”

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and submits that since Chief Executive Officer is a post/designation of the employees of the company; he is neither a natural nor juridical person. Hence, summons ought not to have been issued to the petitioner No.2 to face trial independently more so because though the complaint was filed on 12.02.2016, the petitioner No.2 joined as Chief Execution Officer on 01.04.2017 and he has already superannuated on 30.11.2019 and is no more the Chief Executive Officer of the Bokaro Steel Plant.

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Learned counsel for the petitioners draws the attention of this Court Section 14 (A) of the Employee’s Provident Fund & Miscellaneous Provisions Act, 1952 which is pari materia which Section 141 of the Negotiable Instrument Act and also relies upon the judgment of the Hon’ble Supreme Court of India in the case of Managing Director, Castrol India Limited vs. State of Karnataka & Another reported in (2018) 17 SCC 275 paragraphs-7 and 8 of which read as under:-

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“7. In the present complaint petition, there is no averment or statement whatsoever that the appellant as the Managing Director of the Company was responsible or incharge of the conduct of the business of the Company in respect of which the offence in question has been alleged to have been committed. Neither is there any averment to the effect that the appellant is otherwise connected or responsible for commission of any of the acts on the basis of which the offence(s) is alleged to have been committed.

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8. It will not be necessary to burden this order by a detailed reference to numerous pronouncements of this Court interpreting similar provisions of other statutes holding that a clear and categorical statement to the above effect is required to be made in the complaint petition to proceed against an officer of the Company so as to determine his vicarious liability for the offence committed by the Company. In the present case, the Company is not even arrayed as an accused.”

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and submits that in order to array the petitioner No.2 in capacity of Chief Executive Officer, in order to determine vicarious liability of the petitioner

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Cr. M.P. No.106 of 2022

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No.2 for the offence committed by the company in detail, there has to be averment or statement that the petitioner No.2 was responsible or In-charge of the conduct of the business of the company in respect of which the offence in question as alleged to have been committed but in the absence of the same, the entire criminal proceeding in connection with Complaint Case No.125 of 2016 [Complaint Case (EPF) No.125 of 2016] including the order taking cognizance dated 12.02.2016 passed by learned Chief Judicial Magistrate, Bokaro now pending in the court of learned Judicial Magistrate-1^st Class, Bokaro, is liable to be quashed and set aside.

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Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2- Employee’s Provident Fund vehemently oppose the prayer for quashing the entire criminal proceeding in connection with Complaint Case No.125 of 2016 [Complaint Case (EPF) No.125 of 2016] including the order taking cognizance dated 12.02.2016 passed by learned Chief Judicial Magistrate, Bokaro now pending in the court of learned Judicial Magistrate-1^st Class, Bokaro qua the petitioner No.2 and submit that the petitioner No.2 being in capacity of Chief Executive Officer was responsible for not filing the statutory returns as detailed in the complaint itself. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after going through the materials available in the record, this Court finds that no doubt the petitioner No.2 has been arrayed as an accused by his post and designation. Further, there is no allegation against the petitioner No.2 of having committed any overt act on behalf of the company. In view of the judgment of the coordinate Bench of this Court in the case of Suma Devi vs. The State of Jharkhand & Others (supra), this Court has no hesitation in holding that the petitioner No.2 having been arrayed by post/designation, hence, it is neither a

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Cr. M.P. No.106 of 2022

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natural nor a juridical person. Further in the absence of any specific allegation of any overt act committed or omitted to have been done by him, this Court is of the considered view that even if the allegations made in the complaint is taken to be true in its entirety still the offences are not made out against the petitioner No.2.

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Hence, the continuation of this criminal proceeding against the petitioner No.2 will amount to abuse of process of law and in the interest of justice it is a fit case where the entire criminal proceeding in connection with Complaint Case No.125 of 2016 [Complaint Case (EPF) No.125 of 2016] including the order taking cognizance dated 12.02.2016 passed by learned Chief Judicial Magistrate, Bokaro now pending in the court of learned Judicial Magistrate-1^st Class, Bokaro qua the petitioner No.2, be quashed and set aside.

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Accordingly, the entire criminal proceeding in connection with Complaint Case No.125 of 2016 [Complaint Case (EPF) No.125 of 2016] including the order taking cognizance dated 12.02.2016 passed by learned Chief Judicial Magistrate, Bokaro now pending in the court of learned Judicial Magistrate-1^st Class, Bokaro qua the petitioner No.2, is quashed and set aside.

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In the result, this Cr.M.P. stands allowed.

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In view of this disposal of the instant Cr.M.P, interim order granted earlier vide order dated 23.02.2022 stands vacated.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 01^st of August, 2023 AFR/ Animesh

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Ms Bokaro Steel Plant Represented through John Tapan Kongari v. the State of Jharkhand

Case brief

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Ms Bokaro Steel Plant Represented through John Tapan Kongari v. the State of Jharkhand

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