M/S Sree Chithira Thirunal Residential Central School, Kunnathukal, Trivandrum v. State of Kerala and Enforcement Officer, Employees Provident Fund Organisation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 13TH DAY OF MARCH 2013/22ND PHALGUNA 1934 Crl.MC.No. 960 of 2013 () -------------------------CRRP 155/2009 of COURT OF ADDL. SESSIONS JUDGE-I , TRIVANDRUM AGAINST THE ORDER IN C.M.P.NO.906/2013 IN ST 974/2005 of J.M.F.C.-III, NEYYATTINKARA DATED 06-02-2013 ## PETITIONERS)/ACCUSED: ------------------------------------------ 1. M/S.SREE CHITHIRA THIRUNAL RESIDENTIAL CENTRAL SCHOOL KUNNATHUKAL, TRIVANDRUM. 2. T.SATHEESH KUMAR, S/O.K.THRIVIKRAMAN NAIR, MANAGER AND SECRETARY, M/S.SREE CHITHIRA THIRUNAL RESIDENTIAL CENTRAL SCHOOL, KUNNATHUKAL, TRIVANDRUM. BY ADVS.SRI.K.T.SHYAMKUMAR SRI.JAI GEORGE SRI.HARISH R. MENON SMT.M.S.KIRAN ## RESPONDENTS/STATE AND DEFACTO COMPLAINANT: ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR ADVOCATE GENERAL'S OFFICE, HIGH COURT OF KERALA. 2. ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION, PATTOM TRIVANDRUM - 695 004. BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 960 of 2013 ## APPENDIX ## PETITIONERS' EXHIBITS ANNEXURE-A1: TRUE COPY OF THE JUDGEMENT DATED 31.7.2009 IN S.T. 974/2005 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT - III, NEYYATTINKARA. ANNEXURE-A2: TRUE COPY OF THE ORDER IN CRL.R.P. NO.155/2009 OF THE ADDITIONAL SESSIONS COURT - I, THIRUVANANTHAPURAM. ANNEXURE-A3: TRUE COPY OF THE JUDGEMENT IN CRL.R.P. NO.1690/2012 OF THIS HONOURABLE COURT. ANNEXURE-A4: TRUE COPY OF THE PETITION FILED BY THE PETITIONER AS CMP NO. 906/2013 IN ST 974/2005 BEFORE THE JFCM-III, NEYYATTINKARA. ANNEXURE-A5: TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT AND THE ANNEXURE ATTACHED THERETO. ANNEXURE-A6: TRUE COPY OF THE ORDER DATED 6.2.2013 IN CMP NO.906/2013 IN ST 974/2005. RESPONDENTS' EXHIBITS : NIL // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------- Crl.M.C.No.960 of 2013 ---------------------------Dated 13[th] March, 2013 ## **ORDER** The petitioners are accused Nos. 1 and 2 in S.T.No.974 of 2005 on the files of the Court of Judicial First Class Magistrate-III, Neyyattinkara. The accusation against them is one of commission of offences punishable under Sections 14(1-B) and 14(AA) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short `EPF Act') for having failed to pay employees deposit linked insurance contribution and administration charges for the period from May, 2003 to July, 2003. The petitioners pleaded guilty and consequently they were convicted under the aforesaid offences and were sentenced to undergo imprisonment till rising of court and to pay fine of Rs.2,000/- each and in default of payment of fine to undergo simple imprisonment for 10 days. The petitioners paid the fine amount and also suffered the sentence on the same day itself. The defacto complainant took up the matter in revision and contended that the sentence imposed was too inadequate owing to the previous conviction of the petitioners for the same offence and thereupon, notice was issued to the petitioners herein. On its receipt the petitioners entered appearance through counsel. On the date of hearing the learned counsel did not appear and argue for the petitioners herein. Ultimately Crl.M.C.960/2013 2 Annexure-A2 order was passed in Crl.R.P.No.155 of 2009 by the Court of Additional Sessions Judge-I, Thiruvananthapuram, whereby the said revision petition was allowed. A perusal of Annexure-A2 would reveal that the said revision petition was filed for enhancement of sentence consequent to the conviction of the petitioners under Sections 14(1-B) and 14(AA) of the EPF Act and after allowing the revision petition the revisional court remanded the matter to the trial court for fresh disposal only with regard to the imposition of sentence. The operative portion of Annexure-A2 reads thus:- “In the result the revision is allowed. The sentence imposed by the court below to the accused vide impugned judgment is hereby set aside. The case is remanded to the court below for fresh disposal with regard to the imposition of sentence. The court below shall record a finding on the question whether the accused is liable to enhanced punishment on account of previous conviction of the very same offence and if yes, the court below shall impose adequate sentence to the accused in accordance with law after giving the accused as well as the complainant an opportunity to be heard.” 2. It is evident from Annexure-A2 that the revisional court had only directed the court below to record a finding on the question whether the accused/the petitioners are liable to be imposed with an Crl.M.C.960/2013 3 enhanced punishment on account of the previous conviction for the very same offence and directed to impose adequate sentence to the accused in accordance with law, if the answer to the aforesaid question is in the affirmative, that too after giving the accused as well as the complainant an opportunity of being heard. Feeling aggrieved by Annexure-A2 order, admittedly, the petitioners approached this Court by filing Crl.R.P.1690 of 2012. That revision petition was dismissed as per Annexure-A3 order obviously, based on the submissions made by the petitioners to the effect that they were not pressing the revision petition. In fact, Annexure-A3 would reveal that the petitioners herein have filed memos in a bunch of revision petitions arising from the orders of the Court of Additional Sessions Judge-I, Thiruvananthapuram on similar revision petitions under similar circumstances. 3. This petition is filed on being aggrieved by Annexure-A6 order dated 6.2.2013 passed by the Court of Judicial First Class Magistrate-III, Neyyattinkara in C.M.P.No.906 of 2013 in S.T.No.974 of 2005. The order itself would reveal that C.M.P.No.906 of 2013 was filed by the petitioners herein/the accused therein seeking to drop the proceedings due to want of sanction by competent authority. Essentially, Crl.M.C.960/2013 4 the contention of the petitioners was that the complaint was instituted without obtaining proper sanction in that regard and that the sanction given by the Regional Provident Funds Commissioner-II is not legally valid and that the competent authority to grant sanction at the relevant point of time was the Regional Provident Funds Commissioner-I, Thiruvananthapuram. The learned Magistrate took note of the fact that the accused persons/the petitioners had, in fact, pleaded guilty. The learned Magistrate also took note of the fact that the complainant filed an objection to the petition and clarified that the action in granting sanction by the Regional Provident Funds Commissioner-II was subsequently ratified as per notification dated 8.10.2008 bearing No.S.O. 2874. Above all the learned Magistrate took note of the fact that the revision petition filed by the complainant before the revisional court was one for enhancement of sentence against the petitioners herein and the matter was remanded to that court only to decide upon the adequacy of the sentence alone. In such circumstances that the learned Magistrate held that the court stands precluded from considering any other aspects especially, on the question of conviction. In that context, it is to be noted that the petitioners had not taken up Annexure-A1 further and that apart, even after Annexure-A2 order by the revisional court preferred to Crl.M.C.960/2013 5 get the revision petition filed against Annexure-A2 dismissed as not pressed as per Annexure-A3. C.M.P.No.906 of 2013 carrying the prayer to drop the proceedings due to want of sanction by competent authority was dismissed as per Annexure-A6 order. As noticed hereinbefore, it is challenging the said order that this petition has been filed. 4. The learned counsel appearing for the petitioners submitted that now the matter stands posted to 20.3.2013, before the learned Magistrate for deciding on the question of sentence. The indisputable position obtained in this case is that originally the petitioners pleaded guilty and consequently, they were convicted and sentenced as aforesaid. Obviously, it was the defacto complainant who preferred the revision petition for enhancement of the sentence imposed on the petitioners owing to previous conviction for the same offence. A scanning of Annexure-A2 would reveal that revision petition was allowed and the matter was remanded to the trial court for the limited purpose of fresh disposal with regard to the imposition of sentence. There cannot be any doubt with respect to the position that the petitioners too, were fully aware of the fact that the conviction against them entered into by the trial court had attained finality and the revisional court as per Crl.M.C.960/2013 6 Annexure-A2 remanded the case after setting aside sentence solely for the aforesaid purpose. It is in that circumstances and having understood the order in Annexure-A2 fully as also its impact that the petitioners approached this Court by filing Crl.R.P.No.1690 of 2012. That revision petition was taken up for consideration along with certain other revision petitions preferred by the same petitioners arising out of similar orders passed in revision petitions filed by the same defacto complainant, under similar circumstances. Obviously, those revision petitions were dismissed as per Annexure-A3 solely based on the not pressed memo filed by the petitioners herein on all such revision petitions. The learned counsel appearing for the petitioners submitted that what was asked for in the not pressed memo filed in Crl.R.P.No.1690 of 2012 was only a permission to withdraw the said revision petition for the purpose of conducting the case before the Court of Judicial First Class Magistrate-III, Neyyattinkara. A photocopy of the not pressed memo was handed over by the learned counsel appearing for the petitioners, but it is to be noted that it was not produced. I am of the view that even if what was prayed was for a permission to withdraw the said revision for the purpose of conducting the case before the Court of Judicial First Class Magistrate-III, Neyyattinkara evidently, what was done by this Court as per Crl.M.C.960/2013 7 Annexure-A3 was nothing but dismissing the revision petition as not pressed. As per Annexure-A3 this Court ordered thus:- “The petitioners in these Criminal Revision Petitions have filed petitions stating that they are not pressing the Criminal Revision Petitions, in all these Criminal Revisions. Accordingly, these Criminal Revision Petitions are dismissed as not-pressed.” Annexure-A3 would thus reveal that this Court only dismissed all the revision petitions that came up for consideration on that day including Crl.R.P.No.1690 of 2012 as not pressed taking note the memos filed by the petitioners herein in those Crl.R.Ps. I am of the considered view that in case the petitioners are aggrieved by Annexure-A3, they have to pursue with the remedies open to them to redress their grievances against Annexure-A3. Certainly, the grievance relating Annexure-A3 cannot be looked into by this Court. 5. Now, the question to be considered is whether the order in Annexure-A6 could be said to be illegal and liable to be interfered with. Evidently, Annexure-A2 order was passed by the Court of Additional Sessions Judge-I, Thiruvananthapuram on a revision petition filed for Crl.M.C.960/2013 8 enhancement of sentence. There cannot be any doubt with respect to the position that conviction of the petitioners were entered into based on pleading guilty by them and it had attained finality as per Annexure-A1 order itself. The question of conviction was not taken up in revision and the revisional court allowed the revision and set aside only the sentence imposed as per Annexure-A1 and the case was remanded only for the purpose of considering the question of sentence, rather, the adequacy or otherwise of the sentence to be precise, to consider the question whether the petitioners are liable to enhanced punishment on account of previous conviction for the same offence, in accordance with law. Obviously, the accused/the petitioners and the complainant were ordered to be given opportunity of being heard only for that limited purpose. The only way for the petitioners to get interference with that order was by pursuing with Crl.R.P.No.1690 of 2012 filed before this Court. But, instead of pursuing with the same, for reasons best known to them they did not pursue with the same whilst sought for its dismissal as not pressed and got it dismissed as not pressed as per Annexure-A3. As a consequence of Annexure-A3 the order in Annexure-A2 became final and therefore, the learned Magistrate had no option but to consider the question whether the petitioners are entitled to be imposed with enhanced Crl.M.C.960/2013 9 punishment owing to previous conviction for the same offence and if so, to impose the adequate sentence, in accordance with law. The learned counsel appearing for the petitioners submitted that though the petitioners have filed memos and got the revision petitions dismissed as not pressed it cannot take away the liberty, rather, the right available to the petitioners for raising contentions against the correctness of Annexures-A1 and A2 in the light of the decisions of the Hon'ble Apex Court in **Kasambhai Abdulrehmanbhai Sheikh** v. **State of Gujarat and another** ( **1980 KHC 682** ) and **Thippeswamy** v. **State of Karnataka** ( **AIR 1983 SC 747** ). I may hasten to add in this context that the petitioners who were fully aware about the above decisions of the Hon'ble Supreme Court should have pursued with the revision petitions filed against Annexure-A2 and similar orders. However, they got the revision petitions dismissed as not pressed. The `not pressed memo', a copy of which was furnished to me by the learned counsel for the petitioners, would reveal that the prayer made therein was as follows:- “The petitioners respectfully submit that they may be granted permission to withdraw the above Crl.R.P. to conduct the case before the Judicial First Class Magistrate's Court-III, Neyyattinkara.” Crl.M.C.960/2013 10 Annexure A3 would reveal that this Court taking note of the not pressed memo filed in Crl.R.P.1690 of 2012 and connected revision petitions dismissed all the revision petitions including Crl.R.P.1690 of 2012 as not pressed without granting any liberty at all. When that be the position, being a bench of co-equal jurisdiction, I cannot go into the correctness or otherwise of the order in Annexure-A3. In fact, it is for that precise reason that hereinbefore in this judgment I have made the observation that it is up to the petitioners to work out remedies if they are aggrieved by Annexure-A3. As already noticed hereinbefore, in this case, the scope of consideration is only with respect to one aspect that is, whether the finding of the learned Magistrate that by virtue of the order in Crl.R.P.No.155 of 2009 it could consider any question other than the adequacy or otherwise of the sentence. As found earlier, by getting Crl.R.P.No.1690 of 2012 dismissed as not pressed, virtually, Annexure-A2 order has become final. After Annexure-A2 order has become final the learned Magistrate was bound to consider the question only in terms of Annexure-A2 and therefore, cannot go beyond the Crl.M.C.960/2013 11 question which was directed to be considered in and vide Annexure-A2. The said finding of the learned Magistrate cannot be said to be illegal warranting interference by invoking the inherent jurisdiction under Section 482 Cr.P.C. In view of the said circumstances, this petition is liable to fail and accordingly, it is dismissed. Sd/C.T.RAVIKUMAR Judge TKS