An FIR was lodged by PF Commissior on an employee of a BIFR company under BIFR (I was Chief Executive but not a board member ) The FIR was for default in payment of PF dues for period covering even that prior to my engagement. I was treated as "Occupier" in PF records. Police filed a case in 1998 and magistrate's court gives date after date on its own for last 13 years. I have not saught date even once. So far charge sheet has not been filed. (no case has been filed against any board member) I have retired in 1999 and am now 71 years old.
Questions are
1. Can dismissal of the case be saught on the grounds of delay in filing charge sheet?
2. Can dismissal of the case be saught on the grounds that an employee is not a board member and cannot be an "occupier"?
It may be mentioined that all dues have since been paid as directed by BIFR.
When I asked the advocate he suggests let it go on why wake the sleeping dog? Delay will be to your benefit eventually. But I have to travel 50 km to attend the court every three months or so.
From India, Mumbai
Questions are
1. Can dismissal of the case be saught on the grounds of delay in filing charge sheet?
2. Can dismissal of the case be saught on the grounds that an employee is not a board member and cannot be an "occupier"?
It may be mentioined that all dues have since been paid as directed by BIFR.
When I asked the advocate he suggests let it go on why wake the sleeping dog? Delay will be to your benefit eventually. But I have to travel 50 km to attend the court every three months or so.
From India, Mumbai
Dear
Your Lawyers advice is appropriate. Delay will work in favour of the accused person.Considering your age as a Senior Citizen and the time lag and also subsequent settlement of the dues you can also try quashing of the charge sheet when filed under Section 482 CR PC.Also if you find it too difficult you can go in for quashing of the FIR itself.All this before the concerned High Court.
With Regards
From India, Bangalore
50Your Lawyers advice is appropriate. Delay will work in favour of the accused person.Considering your age as a Senior Citizen and the time lag and also subsequent settlement of the dues you can also try quashing of the charge sheet when filed under Section 482 CR PC.Also if you find it too difficult you can go in for quashing of the FIR itself.All this before the concerned High Court.
With Regards
From India, Bangalore
Thanks for response. The complaint is filed by PF office for "offence under 406/409 and explanation added to 405 of IPC for commiting criminal breach of trust in respect PF contribution deducted from the wages of the employees....."
I am not in disagreement with my lawyer and have been patiently attending court for last 13 years.
The question that rises in my mind " are not the law enforcing agencies required bound by any time limit to specify the charges through framing a charge sheet? Had I not availed of bail provision, I believe, chargesheet will have to be framed within 90 days. Can the case be dragged indefinitely since I am on bail?
On the question of question of "occupier" i came across an article by Sachin Mehta of AZB & associates in Mint dated March 9, 2009 This article quotes a case of JK industries and others vs Chief inspector of factories and boilers and others (Supreme court 1996.
Here Hon supreme court that quoting from article
"where a company owns or runs a factory, it is the company that has ultimate control over the affairs of the factory and would therefore be the occupier.
However since the company is a legal abstraction, it can act only through ir directors....... ......the word ultimate means last of final...... There is vast difference between a person havinf ultimate control...... and one who immediate of day-to-day control over the affairs of the factory.............Essentially, the law as declared by the Supreme Court was that a comppany cannot nominate any one of its employees or officers, except a director of the company, as the occupier of the factory........"
My lawyer will wait for opportune moment to use this information. But still question remains whether this can be a ground for quashing the FIR or case?
From India, Mumbai
I am not in disagreement with my lawyer and have been patiently attending court for last 13 years.
The question that rises in my mind " are not the law enforcing agencies required bound by any time limit to specify the charges through framing a charge sheet? Had I not availed of bail provision, I believe, chargesheet will have to be framed within 90 days. Can the case be dragged indefinitely since I am on bail?
On the question of question of "occupier" i came across an article by Sachin Mehta of AZB & associates in Mint dated March 9, 2009 This article quotes a case of JK industries and others vs Chief inspector of factories and boilers and others (Supreme court 1996.
Here Hon supreme court that quoting from article
"where a company owns or runs a factory, it is the company that has ultimate control over the affairs of the factory and would therefore be the occupier.
However since the company is a legal abstraction, it can act only through ir directors....... ......the word ultimate means last of final...... There is vast difference between a person havinf ultimate control...... and one who immediate of day-to-day control over the affairs of the factory.............Essentially, the law as declared by the Supreme Court was that a comppany cannot nominate any one of its employees or officers, except a director of the company, as the occupier of the factory........"
My lawyer will wait for opportune moment to use this information. But still question remains whether this can be a ground for quashing the FIR or case?
From India, Mumbai
10.09.10
Thanks of response.
Can a court keep on giving dates indifinitely without framing charges? is there no provision of law which stipulates any time limit?
On the question of occupier was discussed in an articl by Sachin Mehta some time back. It quoted a supreme court judgement of 1996 (JK Industries & others vs Chief inspector of Factories and boilers & others)
Article said post Bhopal Supreme Court frowns upon the practice of owners naming an emplyee as Occupier and escapingthe legal responsibility. The Judgement diffentiated between control of day to day operations and "ultimate" control. The article concluded "Essentially, the law as declared by the Supreme court was that a company cannot nominate anyone of its employees or officers, except a director of the company as the occupier of the factory.
So the second question is can this be a ground for seeking quashing of the FIR?
From India, Mumbai
Thanks of response.
Can a court keep on giving dates indifinitely without framing charges? is there no provision of law which stipulates any time limit?
On the question of occupier was discussed in an articl by Sachin Mehta some time back. It quoted a supreme court judgement of 1996 (JK Industries & others vs Chief inspector of Factories and boilers & others)
Article said post Bhopal Supreme Court frowns upon the practice of owners naming an emplyee as Occupier and escapingthe legal responsibility. The Judgement diffentiated between control of day to day operations and "ultimate" control. The article concluded "Essentially, the law as declared by the Supreme court was that a company cannot nominate anyone of its employees or officers, except a director of the company as the occupier of the factory.
So the second question is can this be a ground for seeking quashing of the FIR?
From India, Mumbai
niranjan39;1264780]10.09.10
Thanks for response.
Can a court keep on giving dates indifinitely without framing charges? is there no provision of law which stipulates any time limit?
On the question of occupier was discussed in an articl by Sachin Mehta some time back. It quoted a supreme court judgement of 1996 (JK Industries & others vs Chief inspector of Factories and boilers & others)
Article said post Bhopal Supreme Court frowns upon the practice of owners naming an emplyee as Occupier and escapingthe legal responsibility. The Judgement diffentiated between control of day to day operations and "ultimate" control. The article concluded "Essentially, the law as declared by the Supreme court was that a company cannot nominate anyone of its employees or officers, except a director of the company as the occupier of the factory".
So the second question is can this be a ground for seeking quashing of the FIR?[/QUOTE]
From India, Mumbai
Thanks for response.
Can a court keep on giving dates indifinitely without framing charges? is there no provision of law which stipulates any time limit?
On the question of occupier was discussed in an articl by Sachin Mehta some time back. It quoted a supreme court judgement of 1996 (JK Industries & others vs Chief inspector of Factories and boilers & others)
Article said post Bhopal Supreme Court frowns upon the practice of owners naming an emplyee as Occupier and escapingthe legal responsibility. The Judgement diffentiated between control of day to day operations and "ultimate" control. The article concluded "Essentially, the law as declared by the Supreme court was that a company cannot nominate anyone of its employees or officers, except a director of the company as the occupier of the factory".
So the second question is can this be a ground for seeking quashing of the FIR?[/QUOTE]
From India, Mumbai
There is time limitation provided under CrPC. Limitation period is equivenlant to the correspoinding punishment period. suppose prescribed punishment for a specific officen is 7 years then the taking cognization of the matter , limitation period shall be 7 years.
the other fact in your case is also i think control and supervision of business, if you are not the active Director, and have not control.
Would advise you try for Quashing FIR under 482 of CrPC before the concerned High Court.
the other fact in your case is also i think control and supervision of business, if you are not the active Director, and have not control.
Would advise you try for Quashing FIR under 482 of CrPC before the concerned High Court.
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