MANU/CG/0836/2021

Equivalent/Neutral Citation: 2022(II)C LR214

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

Cr. M.P. Nos. 273, 409 and 435 of 2021
Decided On: 17.11.2021
Simplex Infrastructures Limited and Ors. Vs. State of Chhattisgarh
Hon'ble Judges/Coram:
Rajendra Chandra Singh Samant, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Rohit Sharma and Amit Soni, Advocates
For Respondents/Defendant: Alok Nigam, Govt. Advocate
ORDER
Rajendra Chandra Singh Samant, J.
1 . Three separate petitions have been filed under Section 482 of Cr.P.C. praying to
quash the impugned orders, which are being decided by this common order.
2 . The Cr.M.P. No. 273 of 2021 has been brought praying to quash the criminal
proceeding in Criminal Case No. 1462/2012/B.O.C.W. Act and the orders in 16.01.2020
and 07.01.2021, passed by the learned Labour Court, Raipur.
3 . The Cr.M.P. No. 409/2021 has been brought pryaing for quashment of criminal
proceeding in Criminal Case No. 1444/2012/B.O.C.W. Act and the order dated
16.01.2020 and 07.01.2021, passed by the learned Labour Court, Raipur.
4 . The Cr.M.P. No. 435 of 2021 has been brought praying to quash the criminal
proceeding in the Case No. 1463/2012/B.O.C.W. Act and the order dated 16.01.2020
and 07.01.2021, passed by the learned Labour Court, Raipur.
5 . The facts in brief are these that the petitioner No. 1 was awarded three separate
contracts by G.M.R. energy, which is a power generation plant for civil and architectural
work at Raikekha, Tilda, District Raipur in Chhattisgarh. After completing the
formalities, the respondent No. 1 started the construction work. One Inspector of the
respondent visited the project site on 14.07.2012. The Inspector reported violation of
provisions of Payment of Wages Act, 1962 and rules made under the Building and Other
Constructions Workers (Regulation of Employment and Conditions of Service) Act, 1996
(in short "B.O.C.W. Act, 1996"). On the basis of which, Assistant Labour Commissioner
Raipur vide order dated 27.07.2012 granted sanctions for prosecution of the petitioners
in all three cases under Section 54(1) of B.O.C.W. Act, 1996. Three separate complaints
were filed against the petitioners in the Court of Labour Act/Judicial Magistrate First
Class, which have been registered. An order was passed for issuance of process. No
summons however was served upon the petitioners despite that the order has been
passed on 16.01.2020 for issuance of bailable warrants against the present petitioners
and that order has been repeated on 07.01.2021 directing the issuance of bailable
warrants against the petitioners.

09-11-2023 (Page 1 of 4) www.manupatra.com M.K.E.S. COLLEGE OF LAW

6 . It is submitted by learned counsel for the petitioners in all three cases that the
petitioner No. 1 is seated in Kolkata and the petitioners No. 2 to 11 who are the officers
of petitioner No. 1 are also the resident of Kolkata. Section 202 of Cr.P.C. very clearly
provides that in case where the accused is residing at a place beyond the area of
jurisdiction of the Court the issuance of process shall be postponed against such
accused and then the trial Court is empowered either to inquire the case itself or direct
the investigation to be made by a police officer. The learned Court below has clearly not
followed this procedure and taking cognizance in the case. It is also submitted that
there is no specific charge against the petitioners even when the process is being issued
against them. The provisions in the Act, 1996 and the rules have not been followed.
Petitioner No. 2 to 11 are the Managing Directors and Directors of the company and
they have not played any role in accordance with the allegations made in the complaint.
7 . Reliance has been placed on the judgment of Abhijit Pawar Vs. Hemant Madhukar
Nimbalkar & Anr. reported in MANU/SC/1655/2016 : (2017) 3 SCC 528, Inder Mohan
Goswami & Anr. Vs. State of Uttaranchal & Ors. reported in MANU/SC/7999/2007 :
(2007) 12 SCC 1, Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors.
reported in MANU/SC/1090/1998 : (1998) 5 SCC 749, Punjab National Bank & Ors. Vs.
Surendra Prasad Sinha reported in MANU/SC/0345/1992 : 1993 Supp (1) SCC 499,
Managing Director, Sonalika International Tractor Ltd. Vs. Dinesh Sharma & Ors.
reported in MANU/SC/0460/2009 : (2009) 11 SCC 435 and Azim H. Premji Vs. State of
Chhattisgarh.
8. It is submitted that the sanction order granted by the Assistant Labour Commissioner
Raipur is also erroneous and illegal which mentions that sanction has been granted in
accordance with Section 54 of B.O.C.W. Act read with Section 469(3) of B.O.C.W. Act.
There is no such provision of Section 469(3) of B.O.C.W. Act or the rules. The orders in
earlier prosecution against the petitioner has been set aside by the State Industrial
Court, C.G. Raipur, which were never challenged.
9 . It is submitted that clearly the order of the learned Court below is illegal for non-
compliance of Section 202 of Cr.P.C. The law as declared by the Supreme Court is
binding under Article 141 of Constitution of India. Hence, the proceedings in all three
cases against the petitioners may be quashed.
10. Learned counsel for the respondents opposes the submissions and submits that the
provisions under B.O.C.W. Act, 1996 have been followed by the learned Labour Court.
There are a number of criminal proceedings pending against the petitioners. The
petitioners are deliberately avoiding the service of summons upon them since about 8 to
10 years. Section 87 of Cr.P.C. empowers the Criminal Court to issue warrant of arrest
in lieu of summons. Therefore, the learned Court below has not committed any error in
directing issuance of bailable warrants against the petitioners. The petitioners have
liberty to move application for cancellation of warrant.
1 1 . It is further submitted that the petition under Section 482 of Cr.P.C. is not
maintainable as there is statutory remedy present to challenge the order taking
cognisance of the Court below and the State Industrial Court, which has not been
challenged. Therefore, the Criminal proceedings against the petitioners are not
maintainable under Section 482 of Cr.P.C. which may be dismissed.
12. Learned counsel for the respondent has placed reliance on the judgment of State of
Maharashtra Vs. Ishwar Piraji Kalpatri and ors. With State of Maharashtra Vs. Ishwar
Piraji Kalparti reported in MANU/SC/0194/1996 : (1996) 1 SCC 542, in which it is held

09-11-2023 (Page 2 of 4) www.manupatra.com M.K.E.S. COLLEGE OF LAW

that where on the basis of allegations and in complaint prima facie case is made out,
then, the High Court has no jurisdiction to quash the proceeding.
13. Reliance has also been placed on the judgment of Supreme Court in the case of
State of Haryana & Ors. Vs. Bhajan Lal and Ors. reported in MANU/SC/0115/1992 :
1992 Supp (1) SCC 335, in which the Supreme Court has laid down the guidelines
according to which only under the specific circumstances as mentioned in the judgment,
a criminal proceeding can be quashed and there are no such grounds present in favour
of the petitioners.
14. Relying on the judgment of Supreme Court in the case of Hamida Vs. Rashid Alias
Rasheed & Ors. reported in MANU/SC/7377/2007 : (2008) 1 SCC 474, it is submitted
that wherever there is statutory remedy available, Section 482 of Cr.P.C. cannot be
resorted to.
15. In reply, it is submitted by learned counsel for petitioners that the petitioners have
never avoided the service of summons upon them, it is a fact that nobody had
approached them for service of summons upon them. It is again reiterated that the
compliance of Section 202 of Cr.P.C. is essential. Hence, all three petitions may be
allowed.
16. I have heard the learned counsel for the parties and perused the documents placed
on record.
17. The challenge of the petitioners to the allegations against them in the complaint
case is not subject to consideration in this petition under Section 482 of Cr.P.C. The
same can be challenged by the petitioners, before the trial Court itself at the appropriate
stage. Similarly, the challenge to the sanction order also can not be considered in this
petition under Section 482 of Cr.P.C. because it was on the basis of the sanction order,
the learned trial Court has taken cognizance in the complaint against the petitioners and
that order taking cognizance can be challenged in the revision, before the revisional
Court. Therefore, in such a case, the inherent jurisdiction under Section 482 of Cr.P.C.
can not be exercised by this Court.
1 8 . The grounds remaining in this petition regarding erroneous issuance of bailable
warrant against the petitioners needs consideration. Clearly all the petitioners are not
the local residents of State of Chhattisgarh and the address given in the petition itself
shows that all of them are resident of Kolkata, West Bengal.
19. Section 202 Sub-section (1) of Cr.P.C. is relevant, which reads as under:-
"202. Postponement of issue of process.--(1) Any Magistrate, on receipt of a
complaint of an offence of which he is authorised to take cognizance or which
has been made over to him under section 192, may, if he thinks fit, [and shall,
in a case where the accused is residing at a place beyond the area in which he
exercises his jurisdiction] postpone the issue of process against the accused,
and either inquire into the case himself or direct an investigation to be made by
a police officer or by such other person as he thinks fit, for the purpose of
deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made--
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session; or

09-11-2023 (Page 3 of 4) www.manupatra.com M.K.E.S. COLLEGE OF LAW

 (b) where the complaint has not been made by a Court, unless
the complainant and the witnesses present (if any) have been
examined on oath under section 200."
20. The wording in Section 202(1) of Cr.P.C. are very clear that in case, where the
accused is residing at a place beyond the area, in which, the Magistrate is exercising
jurisdiction, the issuance of process shall be postponed and the Magistrate shall either
inquire into the case himself or direct an investigation to be made by a police officer as
may be the requirement of the case. This part of the provision, that Magistrate shall
postpone the issuance of process is with respect to a complaint against an accused, who
is residing beyond the area of his jurisdiction, has been incorporated by an amendment
Act, 2005. The words in this provision with respect to the procedure to be adopted for
an accused residing outside the jurisdiction in a complaint case are mandatory in
nature. Therefore, it is found that the learned Magistrate has by not following the
procedure as laid down under Section 202(1) of Cr.P.C. committed illegality, hence, for
this reason, the impugned order directing issuance of process against the petitioners is
held to be illegal. On the basis of these findings, the prayer in all the petitions are
allowed in part. The impugned orders dated 16.01.2020 and 07.01.2021 passed by the
learned Labour Court, Raipur are set-aside. The learned trial Court is directed to make
compliance with the provisions under Section 202(1) of Cr.P.C. and proceed with the
complaint cases in accordance with law.
21. Accordingly, these petitions are disposed off.
© Manupatra Information Solutions Pvt. Ltd.

09-11-2023 (Page 4 of 4) www.manupatra.com M.K.E.S. COLLEGE OF LAW