Whether offences under Provident Fund Act are continuing offences & whether period of limitation in Section 468, Cr PC will be applicable

The failure to pay contribution under Provident Fund Act is considered a continuing offence and it has been held by the Courts that period of limitation shall not apply here. The said view was upheld by the Supreme Court as well as various High Courts in a number of matters.

The Hon’ble Supreme Court in RPFC V/s K Mohammad, 1995 followed the judgement laid down in Bhagirath Kanoria V/s State of MP (Criminal Appeal Nos. 407-418 of 1979, 828 of 1981 and 315-317 of 1982, decided on 24.08.1984) in which it said that;

“…we are of the opinion that the offence of which the appellants are charged, namely non-payment of the employers contribution to the Provident Fund before the due date, is a continuing offence, and, therefore, the period of limitation prescribed by Section 468 of the Code cannot have any application. The offence which is alleged against the appellants will be governed by Section 472 of the Code, according to which a fresh period of limitation begins to run at every moment of the time during which the offence continues…”

Further, the Supreme Court also stated that Section 473 of the Criminal Procedure Code is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Criminal Procedure Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.

Therefore, in view of the above judgements any failure to pay contribution under the Provident Fund Act is an offence of continuous nature and laws of limitation shall not apply here.