The petitioners are original accused Nos.5, 7, 2 & 8 respectively in Regular Criminal Case No. R-198/1989 pending before the Judicial Magistrate First Class, Court No.1, Nagpur. The petitioners along with other accused are charge-sheeted for the offence punishable under Section 406 read with Section 34 of the Indian Penal Code. The allegations, as can be gathered from charge-sheet, are that the petitioners and other accused had failed to deposit the amount of Provident Fund and Family Pension to the extent of Rs.8,94,150/- in the bank and had retained the said amount with them for a period of two months and have thereby committed an offence punishable under Section 406 read with Section 34 of the Indian Penal Code. At this stage, it will be convenient to reproduce the relevant portion of Section 405 of the Indian Penal Code:

"405. Criminal breach of trust- Whoever, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust."

Explanation 1 to Section 405 of the Indian Penal Code is relevant for the purpose of present petition. Explanation 1 to Section 405 runs as under:-

"Explanation (1) - A person, being an employer (of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not) who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid)."

2. In view of the provisions of Explanation 1 to Section 405 of the Indian Penal Code, it is alleged that the amount of contribution was deemed to have been entrusted to the petitioners/accused and that by committing default in payment of such contribution to the fund, the accused are deemed to have committed an offence punishable under Section 406 read with Section 34 of the Indian Penal Code.

3. The prosecution is sought to be quashed as against the petitioners mainly on two grounds. The first ground is that the accused Nos.5-Noshir Soonawala, accused No.7-Ratan Naval Tata, accused No.2-Pratap Bhogilal and accused No.8-Sudhir Thackersey were the Directors of the Central India Spinning, Weaving and Manufacturing Company Limited, Nagpur situated at Ruikar Road, Nagpur and that they were not under obligation to comply Para 30 of the Employees' Provident Funds Scheme, 1952. The second ground on which the prosecution is sought to be quashed is the inordinate delay in disposal of criminal case against the petitioners.

4. It is submitted that it is the employer who was under obligation to comply the provisions of Para 30 of the Employees' Provident Funds Scheme, 1952. Para 30 of the Employees' Provident Funds Scheme runs as under:

"30. Payment of contributions - (1) The employer shall, in the first instance, pay both the contribution payable by himself (in this Scheme referred to as the employer's contribution) and also, on behalf of the member employed by him directly or by or through a contractor, the contribution payable by such member (in this Scheme referred to as the member's contribution).

(2) In respect of employees employed by or through a contractor, the contractor shall recover the contribution payable by such employee (in this Scheme referred