The petitioner/A-1 seeks quashing of proceedings in S.T.C.No.18 of 2010 on the file of IV Metropolitan Magistrate, Bheemunipatnam, Visakhapatnam District under Section 482 Cr.P.C on the ground that complaint filed by the Deputy Commissioner of Labour, Visakhapatnam in the lower court under the provisions of payment of Bonus Act (in short, the Act) is not maintainable as the Deputy Commissioner of Labour is not competent to file the same as per Section 30 of the Act. Even though another ground was raised in the petition to the effect that Anudeep Bajoria who is impleaded as another accused in his capacity as Chief Executive of the petitioner company had ceased to be the Chief Executive with effect from 31.03.2009, the said ground was not urged by the petitioner’s counsel before this Court. In any event, whether Anudeep Bajoria ceased to be Chief Executive of the petitioner company or not, is a question of fact which has to be gone into and decided by the trial court after recording evidence to be let in by both the parties. This Court cannot go into the said factual aspect in this petition under Section 482 Cr.P.C. In any event, the contraventions alleged in the complaint relate to the accounting year 2008-09 during which time admittedly ‘Anudeep Bajoria’ was Chief Executive of the petitioner company till 31.03.2009.

It is contended by the petitioner’s counsel that in view of Section 30 of the Act, the lower court should not have taken cognizance of the complaint when it is not presented by the prescribed authority or officer named therein. Section 30(1) of the Act reads as follows:

“(1) No Court shall take cognizance of any offence punishable under this Act, save on complaint made by or under the authority of the appropriate Government, or an officer of that Government not below the rank of Regional Labour Commissioner in the case of an officer of the Central Government and not below the rank of a Labour Commissioner in case of an officer of the State Government specially authorised in this behalf by that Government.”

The petitioner’s counsel heavily placed reliance on Mysore Cements Limited v. Assistant Labour Commissioner (2003(1)LLJ 296(Karnataka)) of the Karnataka High Court and Ballabhadas Agarwala v. J.C. Chakravarty (AIR 1960 Supreme Court 576) of the Supreme Court in support of his contention. Mysore Cements Limited(1 supra) is a direct decision under Section 30 of the Act and it was rendered by the Karnataka High Court on the basis of Ballabhadas Agarwala(2 supra) and other decisions of the Supreme Court and the Privy Council. In Ballabhadas Agarwala(2 supra), the Supreme Court based its ratio on decision of Nazir Ahmad v. Emperor (1936 Privy Council 253(2) of the Privy Council) wherein the Privy Council while considering overaction of the Magistrate acting under Section 164 Cr.P.C observed:

“that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.”

In that case, the Magistrate purporting to act under Section 164 Cr.P.C went along with the accused to scene of the offence and observed the same while scribbling notes of what the accused was stating and thereafter prepared a memorandum and destroyed the spot notes; and the said activity of the Magistrate was sought to be proved by the prosecution by examining the Magistrate and contending that memorandum prepared by the Magistrate basing on spot notes which was later destroyed by the Magistrate, amounts to confessional statement of the accused under Section 164 Cr.P.C. It was noticed by the Privy Council that recording of proceedings/memorandum by the Magistrate was not in accordance with procedure prescribed by Section 164 Sub Sections (1), (2), (3) and explanation of the Code of Criminal Procedure, 1898. The above quoted ratio was rendered by the Privy Council in that context.

The question which arose in Ballabhadas Agarwala(2 supra) before the Supreme Court was competency of Health Officer to file