Yugal Sikri vs State Of U.P

NON-REPORTABLE 2024 INSC 597 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).3324 OF 2024 (ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.4965/2023)

YUGAL SIKRI & ORS. …APPELLANT(S)

VERSUS

STATE OF U.P. & ANR. …RESPONDENT(S)

J U D G M E N T

ABHAY S. OKA, J.

1. Leave granted.

FACTS

2. By impugned judgment, the High Court dismissed the petition

filed by the appellants under Section 482 of the Code of

Criminal Procedure, 1973 (for short, “the Cr. PC”). The

petition was filed to quash a complaint filed in a criminal

Court by the second respondent alleging the commission of an

offence punishable under Section 29 read with Sections 32 and 34

of the Industrial Disputes Act, 1947 (for short, “the ID Act”).

Cognizance was taken of the alleged offence on the said

complaint. A perusal of the impugned judgment shows that the

High Court has dismissed the petition without considering the Signature Not Verified Digitally signed by

merits of the challenge to the complaint.

ASHISH KONDLE Date: 2024.08.09 17:49:56 IST Reason:

1

SUBMISSIONS OF THE PARTIES

3. The learned senior counsel appearing for the appellants

submitted that Section 29 of the ID Act is attracted when there

is a breach of any settlement or award binding on the accused

under the provisions of the ID Act. He submitted that there is

no averment in the complaint about the breach of any particular

settlement or award. He further submitted that under Section

34(1) of the ID Act, cognizance of any offence punishable under

the ID Act can be taken based only on a complaint made by or

under the authority of the appropriate Government. He submitted

that no private person can be authorised under Section 34(1) of

the ID Act to file a complaint. He pointed out that the order

under Section 34 of the ID Act does not refer to any violation

of Section 29 at all, and it only refers to the breach of an

affidavit and the provisions of Section 9A of the ID Act.

4. On the other hand, the learned counsel appearing for the

second respondent submitted that in paragraph 8 of the

complaint, it is specifically alleged that an agreement was

incorporated in the joint affidavit of the parties filed before

the High Court of Judicature at Allahabad on 9th December 2015

and what is alleged is the violation of the said agreement. He

submitted that what is stated in the affidavit is an agreement

and, therefore, what was alleged was the violation of the

agreement incorporated in the joint affidavit of the parties.

2 He further submitted that the High Court dealing with a petition

under Section 482 of the Cr.PC should be very slow in

interfering with the order of the issue of process.

CONSIDERATION OF SUBMISSIONS

5. Sections 29 and 34 of the ID Act are material which read

thus:

“29. Penalty for breach of settlement or award.- Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid by way of compensation, to any person who, in its opinion, has been injured by such breach.”

.. .. .. .. .. .. .. ..

“34. Cognizance of offences- (1) No Court shall take cognizance of any offence punishable under this Act, or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government.

(2) No Court inferior to that of 1[a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.”

(underlines supplied)

6. Section 29 is applicable when any person commits a breach of

any term of any settlement or award binding on him under the ID

Act. Therefore, in the complaint alleging the commission of an

3 offence punishable under Section 29 of the ID Act, there must be

a specific averment regarding the existence of a settlement or

award binding on the accused under the ID Act and how the same

has been breached. Settlement is defined under Section 2(p) of

the ID Act.

7. Before we go into the joint affidavit relied upon by the

learned counsel appearing for the second respondent, we must

refer to the statement of the second respondent recorded under

Section 200 of the Cr.PC on the complaint. The statement

contains a vague reference to “my settlement made in 2015”, the

settlement for the online reporting and MTP, and the settlement

of the expenses bill in an Excel sheet. Further allegations are

of change of conditions of service alleging a breach of Section

9A of the ID Act. In the verification statement under Section

200 of the Cr.PC, the second respondent, has not referred to the

settlement in the form of the joint affidavit dated 9th December

2015 filed before the High Court. He has not stated whether the

settlements he referred therein were in writing. Apart from the

said statement of the second respondent, the statement of one

Rajiv Kumar Bhatnagar was also recorded under Section 202 of the

Cr.PC by the criminal Court. Even in this statement, the

witness does not allege a breach of the agreement incorporated

in the joint affidavit dated 9th December 2015. Therefore, the

learned Magistrate could not have issued a process for the

4 offence punishable under Section 29 of the ID Act based on the

statement made by the second respondent under Section 200 of the

Cr. PC. It is well-settled that the object of recording a

statement of the complainant under Section 200 of the Cr.PC is

to bring the truth on record.

8. Now, we come to the joint affidavit, which is relied upon by

the second respondent. We have perused the said affidavit. The

affidavit refers to a written memorandum of settlement dated

30th August 1996. The affidavit vaguely refers to a settlement

arrived at between the parties. The memorandum of settlement

dated 30th August 1996 referred to in the joint affidavit is not

even referred to and relied upon in the complaint. A copy of

the same has not been produced along with the complaint.

9. Section 2(p) of the ID Act reads thus:

“Settlement” means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer.”

Therefore, on a plain reading of the complaint, there is no

doubt that the second respondent has not been able to place on

record, along with the complaint, any written settlement within

the meaning of Section 2(p) of the ID Act between the parties

5 which is binding under the ID Act. It is not even the case made

out in the complaint that there is any breach of any award by

the appellants. Thus, on a plain reading of the complaint, the

statement of the second respondent recorded under Section 200 of

the Cr.PC and the statement of a witness of the second

respondent recorded under Section 202 of the Cr.PC, we find that

the second respondent made out no case of breach of any

settlement.

10. Moreover, the order purportedly passed in the exercise of

powers under Section 34(1) of the ID Act does not even refer to

the commission of an offence punishable under Section 29 of the

ID Act. The grant of authority under Section 34(1) is a

condition precedent for filing a complaint under Section 34(2)

of the ID Act. The authority granted under Section 34(1) must be

in respect of a specific offence for which a complaint is

intended to be filed. The order refers only to a violation of

Section 9A of the ID Act. The complaint alleges a violation of

Section 29 of the ID Act. But still, there is no reference to a

violation of Section 29 in the order. Therefore, while

exercising power under Section 34(1) of the ID Act of

granting authority, there is a complete non-application of mind.

If such authority is issued without any application of mind, the

very object of providing a safeguard in the form of Section

34(1) will be frustrated. The object of the provision is to

6 prevent frivolous complaints from being filed. Grant of

authority is not an empty formality. We are not going into the

wider question of whether an authority could have been conferred

on the second respondent to file a complaint. In the facts of

the present case, it is unnecessary for us to go into the

question.

DUTY OF THE COURT

11. The learned Magistrate should have considered the averments

made in the complaint and the statements of the second

respondent and his witness recorded by him before deciding

whether a prima facie case of commission of an offence

punishable under Section 29 of the ID Act is made out. He ought

to have verified whether a lawful authority was granted to the

second respondent to file a complaint alleging a violation of

Section 29 of the ID Act. Setting criminal law in motion has

serious consequences. It cannot be done casually by the learned

Magistrate. Therefore, careful application of mind by the

learned Magistrate was necessary before deciding to take

cognizance. However, that was not done in the present case.

ORDER

12. Hence, we set aside the impugned judgment of the High Court

and quash the proceedings of Complaint Case No.85479 of 2022

(CNR No.UPKN040875842022) pending in the Court of the learned

Chief Metropolitan Magistrate, Kanpur Nagar, Uttar Pradesh.

7 Consequently, the summoning order will stand set aside. We,

however, make it clear that remedies, if any, available in law

to the second respondent are expressly kept open.

13. The Appeal is, accordingly, allowed.

..........................J. (ABHAY S. OKA)

..........................J. (AUGUSTINE GEORGE MASIH)

NEW DELHI;

JULY 30, 2024.

8