Jaikrishna M. Kelvani and Others vs State of Goa and Another

Lavande A.P., J.—Heard Mr. Upadhyay, learned Counsel for the petitioners in all the petitions and Mr. Ferreira, learned Public Prosecutor for the respondents in all the petitions. Rule, returnable forthwith. Heard by consent of the learned Counsel for the parties.

These petitions have been preferred by the petitioners under Article 227 of the Constitution of India and section 482 of Cr.P.C. seeking quashing of several criminal complaints filed by the respondents in Criminal case Nos. 709/OA/PF/10/C, 710/OA/PF/10/C, 711/OA/PF/10/C, 712/OA/PF/10/C, 713/OA/PF/10/C, 714/OA/PF/10/C, 715/OA/PF/10/C, 716/OA/PF/10/C, 717/OA/PF/10/C, 718/OA/PF/10/C, 719/OA/PF/10/C, 720/OA/PF/10/C, 721/OA/PF/10/C, 722/OA/PF/10/C, 723/OA/PF/10/C, 724/OA/PF/10/C, 725/OA/PF/10/C, 726/OA/PF/10/C, 727/OA/PF/10/C, 728/OA/PF/10/C, 729/OA/PF/10/C, 730/OA/PF/10/C, 731/OA/PF/10/B, 732/OA/PF/10/C pending before the Judicial Magistrate First Class, Ponda. The complaints have been filed by respondent No. 2 against the petitioners on the ground that the petitioners being the directors of the Company Motiff Laboratories Private Limited have committed offences punishable under sections 14, 14(1B), 14(A) and 14(2A) of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 r/w Employees Deposit Linked Insurance Scheme, 1976 framed thereunder.

The learned Magistrate issued process in all the criminal complaints against the petitioners and others by separate orders dated 10th November, 2010 under the above referred sections.

The petitioners have challenged the issuance of process on several grounds. However, it is not necessary to consider all the grounds since the petitions are liable to be allowed on short ground. According to the learned Counsel for the petitioners, the impugned orders dated 10th November, 2010 passed in all the cases do not disclose as to how the petitioners, who the respondents claim to be directors of the Company, are liable for the alleged offences in the light of the complaints and the documents accompanying the complaints. According to the learned Counsel, the order passed by the Assistant Provident Fund Commissioner upon which reliance was placed by the Magistrate while issuing process against all the accused, does not establish even prima facie the complicity of the petitioners herein in the commission of various offences alleged against them. Learned Counsel, therefore, submitted that the impugned orders to the extent they direct issuance of process against the present petitioners disclose non-application of mind and as such, are liable to be quashed.

Mr. Ferreira, learned Public Prosecutor appearing for the respondents submitted that the respondents have produced sufficient material before the Magistrate for issuance of process even against the present petitioners. However, in the impugned orders, the learned Magistrate has not made reference to the same and as such, he will have no objection if the matters are remanded to the learned Magistrate for passing fresh orders after considering the complaints along with accompanying documents for passing appropriate orders.

I find merit in the submission of Mr. Upadhyay, learned Counsel for the petitioners and in my opinion, the concession made by learned Public Prosecutor deserves to be accepted. Perusal of the impugned orders discloses that the learned Magistrate has made reference to the order passed by the Assistant Provident Fund Commissioner in which there is no reference to the names of the present petitioners and, therefore, it would be just and proper to set aside the impugned orders qua the petitioners only and remand the matters to the learned Magistrate for passing fresh orders after considering the complaints and documents accompanying the complaints.

In the result, therefore, the impugned orders dated 10th November, 2010 passed in the Criminal case Nos. 709/OA/PF/10/C, 710/OA/PF/10/C, 711/OA/PF/10/C, 712/OA/PF/10/C, 713/OA/PF/10/C, 714/OA/PF/10/C, 715/OA/PF/10/C, 716/OA/PF/10/C, 717/OA/PF/10/C, 718/OA/PF/10/C, 719/OA/PF/10/C, 720/OA/PF/10/C, 721/OA/PF/10/C, 722/OA/PF/10/C, 723/OA/PF/10/C, 724/OA/PF/10/C, 725/OA/PF/10/C, 726/OA/PF/10/C, 727/OA/PF/10/C, 728/OA/PF/10/C, 729/OA/PF/10/C, 730/OA/PF/10/C, 731/OA/PF/10/B, 732/OA/PF/10/C by the Judicial Magistrate, First Class, Ponda qua only the petitioners herein are quashed and set aside and the matters are remanded to the learned Magistrate for passing fresh orders after considering the complaints and accompanying documents. Although in view of the settled law that the Magistrate is not expected to pass a very detailed order at the time of issuance of process in criminal case, but he/she is expected to apply his/her mind while passing the order disclosing the prima facie complicity of the accused in the commission of the offences alleged against them.

It is made clear that I have not expressed any opinion on the merits of the rival contentions and the impugned orders are set aside qua the petitioners herein solely on the ground that the impugned orders do not disclose that the learned Magistrate has applied her mind while issuing process against the petitioners herein. The learned Magistrate shall pass appropriate orders in accordance with law after giving an opportunity of being heard to the learned Assistant Police Prosecutor on the basis of the complaints and the documents accompanying the complaints. The learned Magistrate to pass appropriate orders expeditiously and in any case within a period of two months from the date of receipt of a copy of the order. All the writ petitions stand disposed of in aforesaid terms with no order as to costs.