STATE OF BIHAR versus DEOKARAN NENSHI

STATE OF BIHAR

DEOKARAN NENSHI August 24, 1972 [J.·M. SHELAT AND H. R. KHANNA, JJ.]

Mines .Act 1952-S. 66-Failure to furnish returns-If ·<.-'<J\:ered by s. 70 or lvhether continuing offence-Tests.

Mines .Act 1952-S. 66-Failure to furnish returns-If an ofje11ce ·<.-'<J\:ered by s. 70 or lvhether continuing offence-Tests. The respondents arc the owners of a. stone quarry in Bombay. Under Regulation 3 of the Indian Metallif<rrous Mines Regulations 1926, an o\\ner, agent or manager of mine is required to forward to the District l\1agistrate and to the Chief Inspectors annual returns in respect of the preceding yeas in the forms prescribed on or before the 21st January in c•ch year. Under Section 66 of .the Mines Act 1952, person omitting . to furnish the returns is Jiabie to pay \fine which may extend to Rs. 1,000/·. The respondents faileo to furnish to the Chief Inspector the annual returns for the year 1!159 by the 21st January, 1960 even after 'varning from the Chief Inspector. complaint, was filed in the Court <if the Magistrate, Dhanbad, on April 12, 1961. Two questions were <lgitated before the trial Court, the High Court, and also before tbi> Court. ( l) That Dhanbad Court had no jurisdiction to entertain the complaint and (2) that the complaint was basred by limitation under s. 79 of the Mines Act 1952, which provided that no Court shall take cognizance of .a.n offence under the Act unless complaint was made \vithin six months from the date o'f the offence. The explanation to the section providl!-ll th.at if the offence in question \~·as continuing offence, the period of limitation shall be computed \Vith reference to every part of the time .Juring \vhich the said offence continued.

Dismissing the appea1,

HELD : · ( 1) The failure to furnish, the annual returns by January 21. in the succeeding year, is undoubtedly an offence punishable under s. 66 of the Mines Act. complaint has to be filed under s. 79, \\ithin 6 months from the date of the offence; but as regards the question whether the offence was covered by s. 79 or whether it was continulng offence, covered by the Explanation 1hereto, it was held that continuing offence is one which is susceptible of continuance and is distinguishable from th~ one which is committed once and for all. The distinctiori between the t?.·o kinds of offences is bet\'\·een an act or omission which constitutes an off~ .cnce once and for all and an act or omission \vhich continue1, and there .. fore, constitutes fresh offence every time or occasion on whicll it conti .. nues. In the case of continuing offence, there is thus the ingredient of -continuance of the offence whlch is absent in the case of an offence \Vhich takes place \Vhen an act or omlssion is committed once anU for all. 11006C-GJ

The London County Council v. Worley, [1894] 2 Q.B. 826, Butler and l'itZJ:bhar, [1932] 2 K.B. 108, Vernev v. Marie Fletcher & Sons Ltd. ll909] I K.B. 444, Rex v. Talor, !1908] 2 K.B. 237 and Emperor v. Karsandoz. A.I.R. Born. 326, referred to.

Sons Ltd.

(ii) Regulation 3 read with s. 66 of tbe Mines Act, makes failure to furnish annual returns 'for the preceding year by the 21st of January of the succeeding year, an offence. The language of Regulation 3 cf early Gn<licates that mine owner, or his agent, \\'ouJd be Hable to penalty, if

he fails to furnish the returns on or before January 21 of the succeeding year. The infringement, in the present case, therefore, o'7p.rs on J~u­ary 21 of the relevant year and is complete on the owner fa.ding to furn!Sh the annual returns by that day. The Regulation does not lay down that the owner would be guilty of an offence if he continues to c.arry o_n the mine 'without furnishing the returns or that the offence continues tf the requirement o'f Rcgulalion 3 is.not complied.with. In other words, Regul~­tion 3 does not render continued d1sobechence or non-compliance of 1t by itsdf an oll~nce. Ther~forc, the complaint was time barred as the offence iu queoh<ln fell yi1thln 1hc substantive !?art .of s. 79 of the Act and not under t~c Explanatinn attached to 1t and m view of the second ques-1[ion ]TI1" ttr;t questio11 re•.arding jurisdktion requi1'ed no answers. . ' ' [1009CI

CR1~11NAL APPELLATE JuR1so1cnoN : Cr. Appeal No. 208· of 1969.

Appeal under Article 134(1) (c) of the Constitution of India

from the judgment and order dated April 17, 1969 of the Patna High Court in Govt. Appeal No. 28 of 1967 under sec. 417 ( 1) Cr. P.C.

S.C. Agariva/a, for the appellant.

G. L. Sanghi, D. N. Mishra and Mis J. B. Dadachanji & Co .. for the respondent.

The Judgn1ent of the Court was delivered by

Shelat, i. Sec. 66 of the Mines Act, 1952 provides that any person omitting inter a/ia to furnish any return, notice etc. in the prescribed form or 111an11er or at or within the prescribed time re-quired by or und'cr the Act to be made or furnish shall be punisha-ble with fine which may extend to Rs. 1,000/-. Sec. 79 how-ever lays down that no court shall take cognizance of any offence under this Act ·unless complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six 'months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. The Explanation to the section pro-vides that if the offence in question is continuing offence, the period of lin~'.tation shall be computed with reference to every point of time during which the said offence continues. Under Regulation 3 of the India Metalliferrous Mines Regulations, 1926, an owner, agent or manager of every mine is required M> forward to the District Magistrate and to the Chief Inspector annual re-turns in respect of the preceding year in the forms prescribed therein and on or before the 21st of January in each year.

The respondents are the owneJ.'s of stone quarry situate in Chandiwali in Greater Bombay. They failed to furnish to the Chief Inspector the annual returns for the year 1959 by the 21st of January, 1960. On March 28, 1960, the Chief Inspector drew their attention to the said failure and warned the respondents

that if they failed to furnish the returns within two weeks from the date of the said letter, that is, by April 11, 1960, proceedings would be instituted against them under the Act. On their failure to do so despite the said warning, complaint was filed fn the Court of the Magistrate, Dhanbad on April 12, 1961. Two questions were agitated in the Trial Court in the High Court and also before us. One was regarding the jurisdiction of the Court at Dhanbad, and the other was whether the complaint was barred by limitation, it having been filed more than year after the default, which occurred on January 21, 1960. Both the questions go to the root of the matter, but in the view we take of the second question, it would not be necessary for us to go into the first question. The failure to furnish the annual returns either in the prescrib· ed forms or within the time prescribed for it, that is, by January 21, in the succeeding year, is undoubtedly an offence punishable under s. 66 of the Act. complaint in respect of such an offence has, under s. 79, to be filed. within six months from the date of such default, in the present case January 21, 1960. The question then is whether the offence in question is covered by the substan-tive part of s. 79, or whether it is covered by the Explanation thereto. If the offence is of the former kind, the complaint in regard to it would be clearly time barred. It would not be so if the offence is of tb kind, often called continuin!J' offence, in which event the Exµtanation to s. 79 would operate.

continuing offence is one which is susceptible of continuance

and is distinguishable from the one which is committed once and for all. It is one of those offences which arises ont of a· failure to obey or comply with rule or its require;nent and which involves penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and there-.fore, constitutes fresh offence every time or occasion on which it continrn:s. In the case of continuil)g offence, there is thus the ·ingrei:lient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.

: few illustrative cases would help to bring out the distinction between the two types of offences.

. In England, the Trade Union Act, 1871 b~ s. 14 provided that

if any officer, member or other person being or representing him· self to be member of trade union, by false representation or

imposition obtained possession of any moneys books etc. of such trade union, or, having the same in his possession wilfully with-held or fraudulently misapplied the same, court of summary jurisdiction would order such person to be imprisoned. The offence of withholding the money referred to in this section was held to be continujng offence, presumably because every day that the mooeys were wilfully withheld an offence within the mean-ing of s. 12 was commkted. [Best v. Butler and Fitzgibbon(')]. Jn Verney v. Mark Fletcher & Sons Ltd.('), the question again was whether the offence for which the information was lodged therein was contin.uing offence. Sec. 10(1) of the Factory and Workshop Act, 190 I inter alia provided that every fly-wheel directly connected with steam, water or other mechanical power must be securely fenced. Its sub's. (2) provided that factory in which there was contravention of the section would be deemed not to be kept in conformity with the Act. Sec. 135 provided penalty for an occupier of factory or workshop if he failed to keep the factory or workshop in conformity with the Act. Sec. 146 provided that information for the offennce under s. 135 shall be laid within three months after the date at which the offence came to the knowledge of the Inspector for the district within which the offence was charged to have been committed. The r.ontention was that in May 1905 and again in March 1908 the fly-wheel was kept unfenced to the knowledge of the Inspector and yet the information was not laid until July 22, 1908. The informatinn, however, stated that the fly-wheel was unfen~ed on July 5, lC:.08, and that was the offence charged. It was held that the breach of s. JO was continuing b,each on July 10, 1908, and therefore, the information was in time. The offence under s. 135 read with s. 10 consisted in. failing to .keep the factory in conformity with the Act. Every day that the fly-wheel remained unfenced, the factory was kept not in conformity with the Act, and therefore. the failure contin.ued to be an offence. Hence the offence defined in s. 10 was continuing offence. [See also Rex v. Yalore([8])] Sec. 85 of the W.etropolis Management Amendment Act, 1852 prohibited the erection of building on the side of new street o~ Jess than fifty fee( in width, which shall exceed in. height the distance from the front of the building on the opposite side of the street without the consent of the London County Council and imposed, penalties for offences against the Act and further penalty for every day during which such offence should continue after notice from the County Council. The Court construed s. ~5 to have laid do~n t.wo offences; (1 ) building to prohibited he1g;it: and ( 2 ~ contmumg such structure already built after rece1vmg notice from the County Council. The latter offence

(]) [1932] 2 K.B, 108.

(2) (1909] I K.B. 444,

(3) [1908] 2 K.B.[1]237.

JOOS

was continuing offence applying to any one who was guilty of continuing the building at the prohibited height after notice from the County Council. [The London County Council v. Worley(')]

In Emperor v. Karandas, (') the question was as to the pro-

per construction of s. 390, sul;l-s. ( 1) of the Bombay City Muni-cipal Act, 1888. That su~section provided that no person shall newly establish in any premises any factory, in which it was inten-ded that steam, water or other mechanical power >hould be emp-loyed without 'the previous pennission of the Commissioner, nor shall any person work or allow to be worked any such factory without such permission. The sub-section thus laid down two distinct offences; (1 )establishing new factory in which mechani-cal power was int.ended to be used without the permission, and (2) working such factory in which mechanical power was in-tended to be 11sed without permission. The High Court held that the first offence will be completed when new factory was esta-blisted without pennission, an offence completed one and for all, while the other offence would be committed whenever such factory without the permission was worked that is on every day that it was worked without the permission: The High Court ob-served that though the expression 'continuing offence' was not very happy expression, it was very often used. person may not continuously work such factory. He might work it one day and not work it the next day, and then resume its working once again. Therefore, the proper meaning to be attached to such an offence was that whenever he worked such factory he committed an offence. The distinction between the two kinds of offences !av between an act which constitutr-d an offence once and for all and an act" which continued, and therefore, constituted fresh offence every time on which it continued. Similarly, in States v. Bhiwandi-wala, (~) three offences were charged against the respondent: (1 ) failury to submit written hOtice of occupation of his factory as required bys. 7(1) of the Factories Act, 1948, (2) failun: to submit an application for registration and grant of licence as required by s. 6 of the Act read with rule 4 of the Bombay Factories Rules, 1950, and (3) for using the premises as factory without licence. The High Court held that the held that the first two offences were offences completed on failure to submit the notice and the application for registration and licence and complaint in respect of them would be barred if it wa~ lodged beyond the period of three month> from the date of the offence under s. 106 of the Act. But prosecution in respect of the third offence would not be so barred as that offence was conti-nuing offence in the sense that using the premises as factory without registration and licence was an offence committed every time that the premises were used as factory. Likewise, in Bihar

(2) A.l.R. 1942 Dom. 126.

v. J. P. Singh, ( [1]) the High Court of Patna held that conducting restaurant without having it registered and without maintaining registers required by the Bihar Shops and Establishments Act, VIII of 1954 and the Rules framed thereunder were continuing offences as every time restaurant was run without its being regis-stered and without maintaining the requisite registers was an off-ence, and therefore, 'the period of limitation unders. 36 of the Act would begin· to run from the date of the occurrence of each of the defaults. (s~e) also State v. Laxmi Narain(')Reg. 3 read with s. 66 of 'the Mines Act makes failure to furnish annual returns for the preceding year by the 31st of January of the succeeding year an offence. The language of Reg. 3 clearly indicates that an owner, manager etc. of mine would be liable to the penalty if he were to commit an infringement of the Regula-tion and that infringement consists in the failure to furnish returns on or before January 21 of the succeeding year. The infringement therefore, occurs on fanuary 21 uf the relevant year and is comp-lete on the owner failing to furnish the annual returns by that day. The Regulation does not Jay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he con· tinues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Reg. 3 is complied with. In other words, Reg. 3 does not render continued disobe-dience or non-compliance of it an offence. As in the case of construction of wall in violation of rule or bye-law of local body, the offence would be complete once and for all as soon as such construction is made, defauh occurs in furnishing, the re-turns by 1the prescribed date. There is nothing in Reg. 3 or in any other provision in the Act or the Regulation which renders the continued non-compliance an offence until its requirement is carried out.

The High Court, in our view, was right in holding that the complaint was time barred as the offence in question fell within the substantive part of s. 79 of the Act and not under the Exnlana-tion attached to it. The appeals, therefore, must fail and is dis-missed.

Appeal dismissed.