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TMI Blog2012 (5) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... time in 2008, one Mr. Vijay Patil, President, Maharashtra Kamgar Ekta Union made a complaint to the Petitioner regarding evasion of employees provident fund contribution of 2000 employees of M/s Pratibha Industries Limited. An inquiry was initiated by the Petitioner on the complaint under section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (For Short EPF MP Act ) against the establishment during the year 2008. Record was called from the Enforcement Officer, SRO, Vashi under the EPF MP Act, 1952. Shri D.M. Ambokar, the Enforcement Officer, submitted inspection report on 03/03/2009 stating therein that the EPF dues of M/s Pratibha Industries Limited were to the tune of ₹ 6,72,455/- for the period October, 2003 to January, 2009 and this was on account of non-payment of provident fund contribution in respect of 475 non-enrolled workers of the Company. Relying on this report, Petitioner passed the order under section 7A on 20/03/2009 for the aforesaid period. 4. According to the Petitioner, Respondent - CBI and its Officers - Respondent Nos. 2 and 3 scrutinized the assessment order passed by the Petitioner in the matter of M/s Pratibha I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner was informed that an FIR was registered against him on 14/07/2010. The Bank Account of the Petitioner including his Salary Account was seized under section 102 of the Criminal Procedure Code. 6. It is an admitted position that no appeal was filed against the order passed by the Petitioner under section 7A to the Appellate Tribunal nor any application for review was filed against the said order till today. Petitioner, therefore, approached this Court by filing this Petition under Article 226 of the Constitution of India. Division Bench of this court by order dated 03/12/2010 was pleased to grant rule and interim relief was granted in terms of prayer clause (c) and thus the investigation was stayed. However, Division Bench observed that the pendency of this Petition will not come in the way of initiating departmental action against the Petitioner in view of the allegation that substantial loss of revenue had occurred on account of the act of commission and omission of the Petitioner. CBI filed an SLP in the Apex Court and the Apex Court passed the following order:- ORDER Heard Mr. H.P. Rawal, learned Additional Solicitor General. Delay condoned. We are not incli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. (iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 12. Keeping in view the observations made by the Apex Court in the aforesaid two judgments, the averments made in the FIR will have to be taken into consideration. 13. The learned Senior Counsel appearing on behalf of the Petitioner has urged that since the FIR has been filed on the basis of judicial order passed by the Petitioner while exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R could not be quashed. Thirdly, it was contended that in view of section 19 of the Indian Penal Code, proceedings under the PC Act could not be stayed and fourthly it was contended that the order passed by the Petitioner was not a judicial order and, therefore, protection under section 77 of the Indian Penal Code and under section 3(1) of the Judges (Protection) Act, 1985 was not available. 15. This being the crux of the rival contentions, three questions which fall for consideration before this Court are :- (i) Whether the Regional Provident Fund Commissioner while passing an order under section 7A is a Judge within the definition under section 19 of the IPC section 2 of the Judges (Protection) Act, 1985? (ii) Whether the averments made in the FIR even if they are taken at its face value, constitute an offence? (iii) Whether the prosecution of the Petitioner only on the basis of the order passed under Section 7A is barred in view of section 77 of the Indian Penal Code or section 3(1) of the Judges (Protection) Act, 1985 ? 16. In order to consider the said three questions, it will be necessary firstly to take into consideration definition of the word Judge under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powered by law to give such a judgment as is referred in Cl. (a). Under the Judges (Protection) Act, 1985, Judge means not only every person who is officially designated as a Judge but also every person (a) who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in Cl. (a). From the perusal of the said definition under the Judges (Protection) Act, 1985, it is abundantly clear that the said definition is identical to the definition which is given in section 19 of the Indian Penal Code. 17. So far as Indian Penal Code is concerned, section 6 of the Indian Penal Code lays down that the definitions in the Code are to be understood, subject to exceptions. Section 6 of the Code reads as under:- 6.Definitions in the Code to be understood subject to exceptions.- Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against any person who is or was a Judge for any act, thing or word committed, done or spoken by im when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. (2) Nothing in sub-sec.(1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge. Section 4 makes it clear that the provisions of this Act would be in addition to, and not in derogation of, the provisions of any other law, meaning thereby that the said protection is given in addition to protection given under section 77 of the Indian Penal Code. Section 4 of the Judges (Protection) Act, 1985 reads as under:- 4. The Provision of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force providing for protection of Judges. 18 Taking into consideration the definition of the word judge as defined under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicability of this Act to an establishment, decide such dispute; and (b) determine the amount due from any employer under any provision of this Act, the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary. (2) The Officer conducting the inquiry under sub-section (1) shall for the purposes of such inquiry, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the following matters, namely- (a) enforcing the attendance of any person or examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses; and any such inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code (45 of 1860) (3) No order shall be made under subsection (1), unless the employer concerned is given a reasonable opportunity of representing his case. (3-A) Where the employer, employee or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the proviso to Sub-section (3), or subsection (4), of section 1, or section 3, or subsection (1) of section 7A, or section 7B except an order rejecting an application for review referred to in sub-section (5) thereof, or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order. (2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed. Section 7N lays down that the orders passed by the Tribunal shall be final. Section 8 of the EPF MP Act lays down the mode of recovery of moneys due from employers. Section 14 prescribes penalties for non- payment of contribution as fixed by the provident fund scheme or determined under section 7A. 19. Perusal of the relevant provisions, therefore, in our view clearly reveal that the Regional Provident Fund Commissioner is empowered by law under section 7A in a case where a dispute arises regarding the applicability of the Act to establishment, decide such dispute and determine the amount due from the employer under the scheme and for the purpose of conducting inquiry he has been vested with same powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the FIR are such that the legal bar under the aforesaid provisions is attracted as envisaged under category (i) in R.P. Kapur's case AIR 1960 SC 866 (supra) and other subsequent judgments. In this context, therefore, it will be relevant to see the averments which are made in the FIR. 22. The FIR was registered on 14/07/2010 and the gist of the FIR is that the Petitioner alongwith some unknown officials of Navi Mumbai Municipal Corporation and CIDCO and some unknown officials of EPFO entered into conspiracy with M/s Pratibha Industries Ltd to cheat EPFO by passing a favourable order and abused their official positions and caused wrongful gain to M/s Pratibha Industries Ltd and corresponding loss to the EPFO to the tune of ₹ 24.91 crores. In the FIR, it is alleged that one Vijay Patil, President of Maharashtra Kamkar Akta Union made a complaint regarding evasion of EPF contribution of 2000 employees by M/s Pratibha Industries and, accordingly, the inquiry was initiated by the Petitioner and a report was called for from Shri D.M. Ambokar, the Enforcement Officer. He submitted the report stating therein that dues has been to the tune of ₹ 6,72,455/- on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd others knowingly did not calculate the payment of PF contribution for employee of M/s Pratibha Industries Ltd. working in different projects of NMMC and CIDCO. Then, it is averred that from the balance-sheet for the period between 2004- 05 to 2008-09, it is revealed that the company did not pay PF dues on huge wage salary of ₹ 43,52,67,618/- and the loss was calculated in the following manner as stated in para 11 of the complaint- 11 The details of the salaries and the damages are as under:- 1. Salary/Wage on which PF not paid : ₹ 43,52,67,618/- 2. PF @ 25.6% : ₹ 11,14,28,518/- 3. Damages @ 100% : ₹ 11,14,28,518/- 4. Interest u/s.7Q @ 12% p.a. : ₹ 278,57,127/- 5. Total (2+3+4) : ₹ 25,07,14,147/- Therefore the total benefit was allowed to M/s Pratibha Industries Ltd. is ₹ 24,91,27,177/- (Rupees Twenty Four Crores Ninety One Lacs Twenty Seven Thousand One Hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; Provident Fund Scheme. Mechanically, the figures in the balance-sheet for each year in respect of salaries and wages mentioned in the balance-sheet and the salaries on which the PF is paid as per Form 6-A has been considered and the difference is calculated as a loss caused to the EPFO. This clearly reflects the complete non-application of mind on the part of CBI in filing the FIR or in arriving at a figure of loss caused to EPFO on the basis of the order passed by the Petitioner under Section 7A. 24. In our view, therefore, the legal bar under section 77 of the Indian Penal Code and section 3(1) of the Judges (Protection) Act, 1985 is clearly applicable to the facts of the present case and on this ground alone the FIR is liable to be quashed and set aside. The submissions made by the learned Senior Counsel Shri Mahesh Jethmalani, therefore, will have to be accepted. 25. The learned Senior Counsel appearing on behalf of the petitioner invited our attention to the judgment of the Madhya Pradesh High Court in State of M.P. vs. Rajeev Jain 2001(4) MPHT 58. In the said case, the accused Rajeev Jain at the relevant time was Collector, Stamps appointed under the provisions of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of a jurisdiction which belongs to him. The words he speaks are protected by an absolute privileges. It was well stated by Lord Tcntcrden C.J in Gamett Vs. Ferrand, (1827) 6 B C 611 : This freedom from action and question at the suit of an individual is given by the law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be . (Excerpts from The Due Process of Law by Lord Denning). Needless to say that these words apply not only to Judges of the superior Courts but to Judges of all ranks high or low, as provided under the aforesaid two Acts of 1850 and 1985. 9. Of course, it the Judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can certainly be prosecuted and punished in Criminal Courts. However, in the instant case, there is not even an iota of evidence beyond the said two Orders passed by accused Collector to show that he accepted any bribe or been in the least degree corrupt. The prosecuting agency cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by s. 197 of the Code of Criminal Procedure. Under s. 19, Indian Penal Code Judge denotes not only every person who is officially designated as a Judge but also every person who is empowered by law to give, in any legal proceedings, civil or criminal, a definitive judgment or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive. A President of a Union Board accepting or rejecting a nomination paper after scrutiny undoubtedly gives a definitive judgment and is empowered by law to do so as the Rules for the Conduct of Elections have effect as if part of the Act. But does he give his judgment in a legal proceeding? It is contended for Kanniappa Chetitar that legal procedure in s. 19 of the Indian Penal Code is the same as a judicial proceeding as defined in the Code of Criminal Procedure. If so, I doubt whether that would affect the result. But as judicial proceeding is an expression used in other parts of the Indian Penal Code, we are not at liberty to say, unless absolutely driven to it, that legal proceeding is exactly equivalent to judicial proceeding and that the Legislature carel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Code of Civil Procedure to enforce the attendance of any person and to examine him on oath or affirmation. As the assessing authority determines the annual value of the building and consequently the tax observing the legal requirements under the Act he is entitled to the protection under the Judges Protection Act, 1985. In the said case, though the Defendant was an assessing authority, he determined the annual value of the building after observing the legal requirements under the Act and, therefore, it was held that he was entitled to protection under the Judges (Protection) Act. In our view, ratio of the said judgment also squarely applies to the facts of the present case. The next judgment on which the reliance was placed by the learned Senior Counsel for the Petitioner is in Anwar Hussain vs. Ajoy Kumar Mukherjee and Others AIR 1965 SC 1651. In the said case, a Petition was filed seeking compensation for false imprisonment against the order passed by the Sub- Divisional Officer. The Apex Court held and observed in para 8 of its judgment as under:- (8) In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f doing or ordering the act complained of, if he in good faith believed himself to have jurisdiction to do or order the act. In the present case, it is an admitted position that that the Petitioner who was a Regional Provident Fund Commissioner had undisputedly the jurisdiction to decide the dispute which was raised for the purpose of determining the question which was raised before him. Reliance was, thereafter, placed by the learned Senior Counsel for the Petitioner on the judgment of the Division Bench of the Bombay High Court in Abdul Aziz Ansari vs. The State of Bombay AIR 1958 Bom 279. The said judgment was relied upon for the proposition that the expression legal proceeding is synonymous with judicial proceedings and, therefore, it was submitted that the proceedings may be legal even if they are not judicial proceedings if they are authorized by law. It was submitted by relying on the said judgment that, in any event, the order passed by the Regional Provident Fund Commissioner under Section 7A was in a legal proceeding and, therefore, he would be squarely covered under the definition of Judge which refers to every person who is empowered by law to give a definitive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the second category, the protection of the statute will be available if at the time of doing the act, the judicial officer acting judicially, in good faith believed himself to have jurisdiction to do or order the same. The expression jurisdiction in this section has not been used in the limited sense of the term, as connoting the 'power' to do or order to do the particular act complained of, but is used in a wide sense as meaning 'generally' the authority of the judicial officer to act in the matters. Therefore, if the judicial officer had the general authority to enter upon the enquiry into the cause, action, petition or other proceeding in the course of which the impugned act was done or ordered by him in his judicial capacity, the act, even if erroneous will not put it beyond his 'jurisdiction'. Error in the exercise of jurisdiction is not to be confused with lack of jurisdiction in entertaining the cause or proceeding It follows that if the judicial officer is found to have been acting in the discharge of his judicial duties, then, in order to exclude him from the protection of this statute, the complainant has to establish that (1) the judicial o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot. The submission of the learned Additional Solicitor General, therefore, on this aspect is without any substance. 28. It was then contended by the learned Additional Solicitor General that for the purpose of invoking protection either under section 3 of 1985 JP Act or section 77 of the IPC, it is necessary to lead evidence and only then a decision can be given whether the said provision can be invoked or not and, therefore, Writ Petition was not the appropriate remedy for the purposes of quashing the FIR on the ground of protection being afforded to a judge under section 3 of 1985 JP Act or under section 77 of the IPC. Secondly, I t was contended that though the protection was granted under section 3(1), this was restricted to the acts done in the discharge of his official or judicial duty or function and it was further subject to the provisions of section 3(2). It was submitted that in section 3(2), it is made clear that nothing in section 3(1) would debar or affect the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under law to take action whether civil, criminal or departmental against the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LR 398, para 20 5. Food Corporation of India vs. Provident Fund Commissioner and others (1990) 1 SCC 68, Para 9 6. Regional Provident Fund Commissioner vs. Bhavani AIR 2008 SC 2957, Para 21 7. Union of India vs. K.K. Dhawan AIR 1993 SC 1478, para 28 8. Veeraswamy vs. Union of India (1991) 3 SCC 655, para 9 and para 56 9. Harihar Prasad vs. State of Bihar (1972) 3 SCC 89, para 66 On the question of whether the State would fall within the definition of the word 'person' as expressed in section 420 of the IPC read with section 11 of the IPC, reliance was placed on the following judgments:- 1. Krishnan vs. Krishnaveni (1997) 4 SCC 241 2. Ram Prakash Singh vs. State of Bihar 1998 Cri.L J 502, para 11 3. Tulsi Ram vs. State of U.P. 1963 (1) Cri.LJ 623, paras 14-17 4. State vs. Ramados Naidu 1977 Cri. LJ 2048, para 7 29. In view of the submissions made by the learned Additional Solicitor General, the question which falls for consideration is : whether the provisions of section 3(2) overrides section 3(1) of 1985 JP Act. It has been strenuously urged after relying on number of judgments that section 3(2) being a substantive provision, it expressly o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n being granted to a Judge under sub-section (1), Central Government, State Government, Supreme Court or High Court can institute civil, criminal or departmental proceedings against the Judge and, therefore, the proceedings cannot be quashed at the inception and in view of sub-section (1), at the highest, a defence could be taken by the Judge, which could be decided by the Court at the conclusion of the Trial after the evidence was led by both the parties. It has been strenuously urged that subsection (1) deals with judicial independence, whereas subsection (2) deals with judicial accountability and, therefore, the High Court while acting under its writ jurisdiction under Article 226 of the Constitution of Indian and under inherent jurisdiction under section 482 of the Criminal Procedure Code was not competent to quash the proceedings. In support of the said submission, reliance was placed on number of judgments which have been mentioned hereinabove. 31. In our view, it will not be possible to accept the submissions canvassed by the learned Additional Solicitor General. If the said submission is accepted, it would render the protection given to a Judge under section 3(1) nugator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible, effect should be given to both. This is what is known as the rule of harmonious construction. 80 That, effect should be given to both, is the very essence of the rule. Thus a construction that reduces one of the provisions to a useless lumber 81 or dead letter 82 is not harmonious construction. 33. Sub-section (1) gives complete protection to a Judge who is acting in judicial capacity. Sub-section (2), however, clarifies that the power of the Central Government, State Government, Supreme Court, High Court is not taken away to institute civil, or criminal proceedings against the said Judge. It, therefore, follows that if there is any other material which is available with the State or Central Government or higher judicial authorities which could show that the act of the Judge was not in discharge of his official duty then the protection was not available and the said Judge could be prosecuted. Therefore, if there is material to show that the judgment which was delivered was passed on extraneous considerations then on the basis of that material criminal case could be instituted against the said Judge and the said protection which is given under sub-section (1) would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t required. In Albert West Mead vs. King AIR 1948 PC 156, the accused who was an Army Officer was charged under section 409, Penal Code, for being unable to account for a sum of money which had been entrusted to him in his official capacity. It was held that though the money was received by him in his official capacity, his act of misappropriation of that money was not an act as to which the accused could claim that it was done 'by virtue of his office', and hence sanction under section 197, Cr.P.C., was not required for his prosecution. These principles were re-affirmed by the Privy Council in Phanindra Chandra vs. King AIR 1954 SC 455 and by the Supreme Court in Shreekantiah Ramayya Munipalli vs. State of Bombay AIR 1955 SC 287 and in Amrik Singh vs. State of Pepsu AIR 1955 SC 309 35. In our view, therefore, sub-section (1) of section (3) of the said Act has to be interpreted to mean that the protection which is afforded to a Judge is for an act which has been performed during the course of his official duties and that cannot form a basis for instituting criminal case against him and, therefore, ratio of the judgments of the Apex Court which has interpreted the term d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Act with reference to provisions of section 3(1) and, therefore, the ratio of the said judgment would not be of any assistance to the Respondents. Reliance was also placed on the judgment of the Andhra Pradesh High Court in Advocate General, Andhra Pradesh vs. Rachapudi Subba Rao 1991 Cri.L.J. 613 and more particularly on paras 14 and 15 of the said judgment. In the said case, the question which fell for consideration before the Full Bench was : whether sanction of the Central Government under section 197(1) of the Code of Criminal Procedure is a condition precedent for Court to take cognizance of the offence alleged in the private complaint against the Judge of the High Court in respect of his acts in the discharge of judicial functions and, in this context, Full Bench held that so far as the Judges of the High Court and Supreme Court are concerned the Central Government or the State Government had no power to grant sanction to prosecute since they are constitutional authorities. It was, however, held that so far as members of subordinate judiciary are concerned, the State Government, after obtaining the concurrence of the High Court has power to accord previous sanction for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on number of judgments by the Additional Solicitor General in support of the submission that the protection to a Judge is qualified by requirement that the Judge has acted judicially and in good faith and that section 3(1) is a defence on merits which could be raised at the commencement of trial. He relied upon the judgment in Izzat Ali vs. Muhammad Sharapat-ullah Khan AIR 1917 All 355 (2) (Para 2) In this case, District Judge of Budaun was pleased to dismiss the suit. The order of dismissal was based upon the finding that the plaint did not disclose any cause of action and, in the order, it was mentioned that from the statement of facts given in the plaint itself it was clear that the suit is one the cognizance of which is forbidden by the provisions of the Judicial Officers' Protection Act No. XVIII of 1850. The Allahabad High Court held in the facts of the said case that in the plaint the cause of action was stated to be that the Defendant took the Plaintiff into custody and, secondly, he brought a false charge against the Plaintiff, knowing the said charge to be false. It was held that the order was passed on preliminary point. It was held that the plaint could be struck ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ratio of the said judgment has no application to the facts of the present case. 39. It was then strenuously urged that the word 'entertain' which is found in section 3(1) means to admit to consideration or to adjudicate upon and, therefore, it was submitted that the Court can entertain the proceedings once charges have been framed. Reliance was placed on the judgments in M/s Lakshmiratan Engineering Works Ltd vs Asst. Commissioner (Judicial) I, Sales Tax Kanpur AIR 1968 SC 468 (Paras 7, 9 10) and in Hindusthan Commercial Bank Ltd vs. Punnu Sahu AIR 1970 SC 1384 (Para 4). It was further submitted that even if contextual interpretation is adopted the word 'entertain' must be given the aforesaid meaning, otherwise provisions of section 3(2) would be defeated. In our view, ratio of the said judgments would not apply to the facts of the present case. In the present case, if contextual interpretation is adopted the word 'entertain' or 'continue will have different connotation and the said words would clearly reflect the intention of the Parliament imposing a bar on the Court to entertain these proceedings. Once the Court comes to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner was a Court. In the background of the facts of the said case, the Apex Court has considered whether the Commissioner is a Court. After taking into consideration the number of judgments of the Apex Court, High Courts and also judgments of Privy Council and other Judgments given by English Courts, the Apex Court came to the conclusion that the Commissioner appointed under the Act 37 of 1850 is not a Court within the meaning of the Contempt of Courts Act, 1952. Reliance was placed on para 18 of the said Judgment. It was submitted that one of the essential conditions for deciding whether the authority is a Court or not is to see whether it has power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncements. In our view, ratio of the said judgment does not assist the case of the Respondents. We have already considered the provisions of the Act and have observed that the Regional Provident Fund Commissioner who passes an order under section 7A, attains finality and can be executed against the employer and the said order can be executed by following the procedure which is similar to the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court held : (SCC p. 172, para 19) It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which it was used. 256. It is further well settled that a decision is not an authority for a proposition which did not fall for its consideration. It is also a trite law that a point not raised before a court would not be an authority on the said question. In A-One Granites v. State of U.P. (2001) 3 SCC 537 it is stated as follows (SCC p. 543, para 11) 11. This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675 and it was laid down that when non consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment [See also State of U.P. v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139, Arnit Das v. State of Bihar (2000) 5 SCC 488 (SCC para 20), Bhavnagar University v. Palitana Sugar Mills (P) Ltd. (2003) 2 SCC 111, Cement Corpn. of India Ltd. v. Purya (2004) 8 SCC 270, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (2005) 2 SCC 489 and Kalyan Chandra Sarkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Gurnam Kaur. The bench held that, 'precedents sub-silentio and without argument are of no moment'. The courts thus have taken recourse to this principle for reliving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidenti. In B. Shama Rao v. Union Territory of Pondicherry it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability arid uniformity but rigidity beyond reasonable limits is inimical to the growth of law. 42. It is, therefore, not open for the party to rely on so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and others (1990) 1 SCC 68, Para 9. The facts in both these judgments are entirely different and, therefore, these judgments cannot be relied upon as a precedent for the purpose of canvassing the submission that the said authority is not a Judge. In both these cases the issue whether the Regional Provident Fund Commissioner is a Judge or not did not fall for consideration directly or even indirectly and, therefore, observations made therein are of no assistance to the Respondents. Same is the case in respect of the Judgment in Regional Provident Fund Commissioner vs. Bhavani AIR 2008 SC 2957, Para 21. There, the question was: whether the Regional Provident Fund Commissioner was liable for prosecution under the Consumer Protection Act, 1986 and, in that context, it was held that the Act was applicable in the case of the Scheme on the ground that its member was a 'consumer' under section 2(1)(d) and the Scheme was a 'service' under section 2(1)(o). The issue as to whether the Regional Provident Fund Commissioner is a 'Judge or not did not fall for consideration before the Apex Court in the said case. 45. It was also very strenuously urged that the protection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en X + 1. This itself shows that the foundation of entire complaint is based on hypothetical calculation made by the CBI as if sitting in appeal over the order passed by the Regional Provident Fund Commissioner and, therefore, even if these averments are taken at their face value, they do not constitute the offence alleged. 47. The learned Counsel for the CBI had brought to our notice certain other material which was collected by them after the FIR was lodged and, according to them, this material was procured during investigation prior to the grant of stay to the investigation by this Court. It was submitted that the said material clearly revealed that there was further material showing involvement of the Petitioner. Mr. Mahesh Jethmalani, the learned Senior Counsel appearing on behalf of the Petitioner submitted that unless this material is brought to the notice of the accused, the Petitioner herein, the Court cannot rely on the said documents. Reliance was placed on the judgment of the Apex Court in ADM Jabalpur vs Shivkant Shukla AIR 1976 SC 1207 (Para 487). 48. It is clarified that if other material is available with the CBI which shows that the order was passed on extran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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