Compliance with a special provision and the existence of penalties therein can preclude the application of penal sections.

JUDGMENT :

1. Heard Mr. J.J. Sanga, learned counsel for the petitioner, Mrs. Lily Sahay, learned counsel for the State and Mr. Anil Kr. Singh, learned counsel for the O.P. No.2.

2. This petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 17.09.2014 in connection with Sadar P.S. Case No. 246 of 2014, corresponding to G.R. Case No. 3645 of 2014, pending in the Court of learned Judicial Magistrate, Ranchi.

3. F.I.R. was lodged by the Enforcement Officer alleging therein that M/s Seventh Day Adventist Hospital, Bariatu Road, Ranchi (hereinafter referred to as the establishment) is covered under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. It is further alleged that the establishment is required by virtue of provision of section 6 of the Act read with para 38 of the Employees Provident Fund Scheme, 1952 to pay the Employees share of Provident Fund contribution deducted from the salaries/wages of the employees on or before 15th of the following months. It is further alleged that during inspection of the said establishment on 23.05.2014 it has been noticed that the employer viz Shri Conrnelius Murmu, Executive Vice President/Administrator has deducted as per details enclosed, a sum of Rs.21,28,701/- from the salary/wages of the employees as employees share of Provident Fund contribution for the period from 09/2011 to 04/2014 and have not yet deposited the amount with the statutory fund, in violation of section 6 of the Act read with para 38 of the Employees Provident Scheme. Non remitting of the Provident fund money after deducting the Employees share from their salary/wages tantamount to an offence of criminal breach of trust as defined under section 405 of I.P.C.

4. Mr. J.J. Sanga, learned counsel for the petitioner submits that EPFO called upon the petitioner to negotiate and informed about the amount deducted. He further submits that when the talks were going on in the meantime, this F.I.R. has been lodged. He further submits that the entire amount of Rs.21,28,750/- has already been deposited and document has been brought on record by way of Annexure-8 series of the petition. He further submits that there is already provision under Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and when the special Act is there, Penal Section is not attracted. According to him proceeding under section 7A of the Employees’ Provident Fund and Miscellaneous Provision Act, 1952, has already been initiated against the petitioner by the concerned Department.

5. Mr. Anil Kumar Singh, learned counsel for the O.P. No. 2 submits that the petitioner has committed an offence of criminal breach of trust that is why cognizance has rightly been taken under sections 406 and 409 of the Indian Penal Code.

6. Mrs. Lily Sahay, learned counsel for the State submits there is special provision, sections of I.P.C. are not attracted.

7. After hearing the learned counsel for the parties, the court has gone through the materials on record and finds that under the provision of Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, the petitioner has already deposited an amount of Rs.21,28,750/- which is not disputed by the learned counsel for the O.P. No. 2. It is well settled law that if the special provision is there and procedure of penalty is provided therein, penal sections are not attracted. Under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, section 7-A is with regard to determination of money due from employers. There is provision of revision of order passed under section 7-A of the Act, how determining the amount it is provided in that power. There is provision of penalty under section 14 of the Act. How the companies are to be prosecuted, has been prescribed under section 14-A of the said Act.

8. The Court has perused the cognizance order dated 17.09.2014 and finds that learned court below has not applied its judicial mind and in format