The main legal point established is the necessity of impleading the company as an accused in the complaint case, the application of the deeming clause under Section 86A of the Act, 1948, and the doctrine of vicarious liability.

JUDGMENT :

1. Heard Sri Syed Imran Ibrahim and Sri Manish Bajpai, learned counsel for the applicants, Sri Anirudh Kumar Singh, AGA-I and Sri Sushil Pandey, learned AGA for the State and perused the record.

2. The notice to the respondent no.2 is hereby dispensed with.

3. By means of instant application under Section 482 Cr.P.C. has been filed assailing the order dated 29th September, 2021 passed by 9th Additional District and Sessions Judge, Rae Bareilly in Criminal Revision No.54 of 2019 as well as order dated 19th May, 2017 passed by ACJM, Court no.15, Rae Bareilly in Compliant Case No. 3074 of 2016, under Sections 419, 420 IPC, Police Station-Mill Area, District-Rae Bareilly.

4. The factual matrix of the case is that an application under Section 156(3) Cr.P.C. was filed by the opposite party no.2 against the applicants alleging therein that the applicants are under obligation to deposit the shares of the employees towards Employee Provident Fund (EPF) and the Employee State Insurance (ESI).

5. After filing of the aforesaid application under Section 156(3) Cr.P.C., the court below registered the case as a complaint case vide its order dated 3rd of June, 2015. In compliance of the order, the court below examined the opposite party no.2 under Section 200 Cr.P.C. There is specific provision for punishment in the Act itself as such punishment under Section of I.P.C. would not be invoked.

6. After the aforesaid statement of the opposite party no.2, three witnesses namely Ramchandra Singh, Krishna Kumar Yadav and Prakhat Singh were recorded under Section 202 Cr.P.C. and were named as PWs 1, 2 and 3 respectively. After recording the aforesaid statement and examining the strength of the evidence, the lower court vide order dated 19th May, 2017 summoned the applicants under Sections 419 and 420 IPC.

7. Against the summoning order dated 19th May, 2017, the applicants filed a revision before the learned Sessions Judge. After filing of the aforesaid revision, it was finally heard and decided by the trial court on dated 29th September, 2021. Vide the order dated 29th September, 2021, the revision filed by the applicants, was dismissed and the summoning order dated 19th May, 2017 was affirmed.

8. The crux, on the basis of which the applicants were summoned, is that the applicants did not comply with the provision of Employee Provident Fund Act as well as Employee State Insurance Act. In fact, both the Acts specifically envisage provision of penalties.

9. He submits that Section 86 of Employee State Insurance Act, 1948 (hereinafter referred to as the 'Act, 1948') clearly states that prosecution for the violation of the Act can be done when a complaint is been filed with the prior permission of Insurance Commissioner by an officer who has been authorised to do so meaning thereby a complaint by an individual without compliance of the mandate of Act, 1948, cannot be entertained. The Section 86 of Act, 1948 is quoted hereinunder;

Section 86-(1) No prosecution under this Act shall be instituted except by or with the previous sanction of the Insurance Commissioner 1[or of such other officer of the Corporation as may be authorised in this behalf by the 2[Director General of the Corporation]].

(2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the First Class shall try any offence under this Act.]

(3) No Court shall take cognizance of any offence under this Act except on a complaint made in writing in respect thereof.

10. More importantly, Section 86(A) of Act, 1948 deals with the provision that if any offence has been committed, the company shall be deemed to be guilty. Section 86(A) of the Act, 1948 is quoted hereinbelow;

86A. Offences by companies.-

(1) If the person committing an offence under this Act is a company, every person, who at the time the offence was committed was incharge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of