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PETITIONER: BHAGIRATH KANORIA & ORS. ETC.

       Vs.

RESPONDENT: STATE OF M.P. & ORS. ETC.

DATE OF JUDGMENT24/08/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) REDDY, O. CHINNAPPA (J)

CITATION:  1984 AIR 1688            1985 SCR  (1) 626  1984 SCC  (4) 222        1984 SCALE  (2)218

ACT:      Employees Provident  Fund and  Family Pension  Fund Act 1952. Section  14 and Employees’ Provident Fund Scheme 1952, Paragraph 38.      Employers contribution to Provident Fund-Non-payment on due dates-Whether  a continuing offence period of limitation prescribed in  Section 468  and 473  of the Code of Criminal Procedure Code-Applicability of.      Code of  Criminal Procedure 1973, Sections 468 and 473- Continuing   offence-What   is-Period   of   limitation   in continuing offences commencement of.      Words & Phrases: continuing offence-Meaning of.

HEADNOTE:      The Provident  Fund Inspector  filed complaints against the appellants  Directors and Factory Manager and respondent No.2-Company charging  them with  non-payment  of  employers contribution under  the Employees’ Provident Fund and Family Pension Fund  Act, 19 of 1952, alleging that the accused did not pay the employers contribution to the Fund from February 1970 to June 1971.      At the  commencement of  the trial,  the accused  filed applications contending that since the limitation prescribed by section  468 of  the Code of Criminal Procedure, 1973 had expired before  the filing  of the complaints, the Court had no jurisdiction  to take cognizance of the complaints. These applications were rejected by the Judicial Magistrate on the ground that  the offences  of which the accused were charged are ’continuing  offences’ and  therefore,  no  question  of limitation could  arise. This  order was  upheld by the High Court in the revision applications filed by the appellants.      In the  appeals to this Court filed by the Directors of the Company it was contended that the offence of non-payment of the  employers contribution can be committed once and for all on  the expiry  of fifteen days after the close of every month and,  therefore, prosecution  for that offence must be launched within the period of limitation provided in section 468 of the Code. 627      Dismissing the appeals, ^      HELD  1.  The  offence  of  which  the  appellants  are

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charged, namely  non-payment of  the employer’s 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. [636 D-E]      2. The  concept of  ’continuing offence’  does not wipe out the  original guilt.  It keeps  the contravention alive, day by day. [636 D]      S.V. Lachwani v. Kanchanlal C. Parikh and others, 1978, Lab. I. C. 868, over-ruled.      3. Courts  when confronted  with provisions  which  lay down a  rule of  limitation governing prosecutions, in cases of this nature will give due weight and consideration to the provisions contained  in  section  473  of  the  Code.  That section  is   in  the  nature  of  an  overriding  provision according to  which, notwithstanding  anything contained  in the provisions  of Chapter  XXXVI of the 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. [636 F-G]      4. The  expression ’continuing  offence’ is not defined in the  Code but  that is  because expressions  which do not have a  fixed connotation  or static import are difficult to define. The  question whether  a  particular  offence  is  a ’continuing  offence’   must  necessarily  depend  upon  the language of  the statute  which creates  that  offence,  the nature of  the offence  and, above all, the purpose which is intended to  be achieved  by constituting the particular act as an offence. [632 E, 635E]      State of  Bihar v.  Deokaran Nanshi,  [1973]1 SCR 1004, explained.      5. The  offence of  which the  appellants is charged is the failure to pay the employers contribution before the due date. Considering  the object and purpose of this provision, which is  to ensure the welfare of workers, it is impossible to hold  that the offence is not of a continuing nature. The appellants  were   unquestionably  liable   to   pay   their contribution to  the Provident  Fund before the due date and it was  within their power to pay as soon after the due date had expired  as they willed. The late payment could not have absolved them  of their  original guilt  but it  would  have snapped the  recurrence. Each day that they failed to comply with the  obligation to  pay their contribution to the Fund, they committed a fresh offence.[635 F-G] 628      6. To  hold that  the employer  who has  not  paid  his contribution or  the contribution  of the  employees to  the Provident Fund can successfully evade the penal consequences of his  act by  pleading the  law of  limitation,  would  be putting an  incredible premium  on lack  of concern  for the welfare of  workers.  Such  offences  must  be  regarded  as continuing offences  to which  the law  of limitation cannot apply. [635 G-636 A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 407 to 418 of 1979.      Appeals by  Special leave  from the  judgment and order dated the  6th July,  1977 and  12th May, 1978 of the Madhya Pradesh High  Court in  Crl. Case  Nos. 857,  851, 853, 858,

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852, 850  of 1977 and 1394, 1391, 1395, 1392, 1393 & 1387 of 1976.                             WITH               Criminal Appeal No. 828 of 1981      Appeal by  Special leave  from the  Judgment and  order dated the  1st May, 1981 of the Madhya Pradesh High Court in Crl. Revision No. 187 of 1977                             AND             Criminal Appeal Nos. 315-317 of 1982      Appeal by  Special Leave  from the  judgment and  order dated the  7th September,  1977 of  the Madhya  Pradesh High Court in Crl. Revision No. 186, 185 & 184 of 1977      G. L.  Sanghi. Vinod  Bobde, Mrs.  A. K.  Verma, O.  C. Mathur and  D. N.  Misra for  the Appellant in Crl. As. 407- 18/79.      Gopal Subramaniam  and D.P.   Mohanty  for  Respondents Nos. 1 & 2 in Crl. As. 407-18 of 1979.      Mrs. Urmila  Sirur S.  N. Kohil  and M.P.  Jha for  the Intervener in Crl. A.. Nos. 407-18/79.      M. K.  Ramamurthy and  Miss A.  Vaiji for  A.C. in Crl. As.No. 407-18/79.      S.  Govind   Swaminathan  and   S.K.  Gambhir  for  the appellants Crl.  A. 828/81  and Crl.  A. Nos.  828/81 & 315- 17/82. 629      N.  C.   Taluqdar  and   Miss  A.  Subhashini  for  the Respondents in Crl. A. Nos. 828/81 & 315-317/82.      The Judgment of the Court was delivered by      CHANDRACHUD C.J.  These appeals  raise  a  question  of general public  importance as  to whether failure to pay the employers’ contribution  to the Provident Fund is continuing offence. If  it is,  no question of limitation can arise. On the other  hand, if  it is  not a  continuing  offence,  the complaint for  non-payment of  the contribution  has  to  be filed within the stated period.      The facts  of these  appeals vary from case to case but such variation  is inconsequential  for our purpose. We will therefore state the facts of a representative group of these cases which comprises Criminal Appeals Nos. 407-418 of 1979.      On  August  22,  1975  the  Provident  Fund  Inspector, Indore, Madhya  Pradesh, filed  six complaints  against  the appellants and  respondent 2, charging them with non-payment of employers’  contribution under  the  Employees  Provident Fund and  Family Pension  Fund Act  19 of 1952, (referred to herein as  "the Act").  Respondent 2 is a Company called M/s Burhanpur Tapti  Mills Limited,  of which  appellants 1 to 3 were Directors  and appellant  4 the  Factory Manager. Under section 17  of the  Act, the  Company was  granted exemption from the  operation of  the Employees Provident Fund Scheme, 1952 which  is framed  under the  Act.  That  exemption  was granted on  the condition  that the  Company  will  transfer monthly  collections  of  the  Provident  Fund  of  workers, inclusive of  the employers’  contribution, to  the Board of Trustees of  the Fund  within 15  days of  the close of each month. The allegation against the accused, about which there is no  factual  dispute,  is  that  they  did  not  pay  the employers’ contribution  to the  fund from  February 1970 to June 1971.      At the  commencement of  the trial,  the accused  filed applications contending that since the limitation prescribed by section  468 of  the Code  of  Criminal  Procedure,  1973 (referred to  herein as  "the Code"), had expired before the filing of  the complaints,  the Court had no jurisdiction to take cognizance  of the  complaints. Those applications were rejected by  the learned  Judicial Magistrate  by  an  order

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dated November 29, 1976 on the ground that the offences of 630 which the  accused were  charged are continuing offences and therefore, no question of limitation could arise.      The accused  filed revision  applications in  the  High Court of  Madhya Pradesh  against the  order passed  by  the trial court.  By a  judgment dated  July 6,  1977 a  learned single Judge of the High Court upheld the order of the trial court and dismissed the revision petitions. The Directors of the company  who, along  with the company, were arraigned as the accused  have filed  these  appeals  by  special  leave, against the judgment of the High Court.      By a  Notification dated April 22, 1971 the Company was declared  as  a  Relief  Undertaking  under  the  Industries (Development and  Regulation) Act, 1951. As a result of that notification, the  administration and control of the Company are vested  in an  administrator appointed  by  the  Central Government under  that Act.  Later, the Company was notified as a  Sick Textile  Undertaking under  the First Schedule to the Sick  Textile Undertakings  (Nationalisation) Act, 1974, which came into force on April 1, 1974.      The  complaints   for  non-payment  of  the  employer’s contribution to  the Provident  Fund were  filed against the accused under section 14 (2A) of the Act which reads thus:           "Section 14. Penalties.           X          X          X          X           (2-A). Whoever  contravenes or  makes  default  in      complying with  any provision  of this  Act or  of  any      condition subject  to which exemption was granted under      Section 17  shall, if  no other  penalty  is  elsewhere      provided by or under this Act for such contravention or      non-compliance, be  punishable with  imprisonment which      may extend  to three  months or  with  fine  which  may      extend to one thousand rupees, or with both." The allegation  against the  accused is  that by  not paying their contribution  to the  Provident Fund,  they  committed default in  complying with  the condition  subject to  which exemption was  granted to  them under  section 17 of the Act from complying  with  the  provisions  of  the  Act.  Stated briefly, section  17 confers upon the appropriate Government the power  to exempt any establishment from the operation of all or any of the provisions of the Act, if 631 such establishment  has its own scheme of Provident Fund, of which the  rules are  not less  favourable than the rules of the scheme framed under the Act. The Company, in the instant case,  was   granted  exemption  under  section  17  on  the condition that  it shall  pay  the  employer’s  contribution within fifteen  days  of  the  close  of  each  month.  This condition is  the same  as the one contained in paragraph 38 (1)  of   the  Employees’   Provident  Funds  Scheme,  1952. Paragraph 38 (1) reads as follows, in so far as is relevant;           "38. Mode of payment of contribution-           (1) The  employer shall,  before paying the member      his wages  in respect  of any  period or part of period      for  which   contributions  are   payable,  deduct  the      employee’s contribution  from his  wages which together      with his  own contribution.... he shall, within fifteen      days of the close of every month, pay.... to the Fund."      The question  as to  whether the offence of non-payment of the  employer’s contribution  of the  Provident Fund is a continuing  offence,   arises  because   of  the  provisions contained in  Chapter XXXVI  of the  Code which  is entitled ’Limitation for  taking  cognizance  of  certain  offences.’ Sections 468,  472 and  473 which  occur in that Chapter and

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which are relevant for our purpose, read as follows:-           "468. (1)  Except as  otherwise provided elsewhere      in this  Code, no  Court shall  take cognizance  of  an      offence of  the category  specified in sub-section (2),      after the expiry of the period of limitation.           (2) The period of limitation shall be-                (a)  six months, if the offence is punishable                     with fine only;                (b)  one year,  if the  offence is punishable                     with  imprisonment   for  a   term   not                     exceeding one year;                (c)  three   years,   if   the   offence   is                     punishable with  imprisonment for a term                     exceeding one  year  but  not  exceeding                     three years." 632           "472. In the case of a continuing offence, a fresh      period of limitation shall begin to run at every moment      of the time during which the offence continues."           "473. Notwithstanding  anything contained  in  the      foregoing provisions  of this  Chapter, any  Court  may      take cognizance  of an  offence after the expiry of the      period of  limitation, if  it is satisfied on the facts      and in the circumstances of the case that the delay has      been properly  explained or  that it is necessary so to      do in the interests of justice."      It is  contended by Shri Bobde who appears on behalf of the appellants  that, the  offence  of  non-payment  of  the employer’s contribution can be committed once and for all on the expiry  of fifteen  days after  the close of every month and,  therefore,   prosecution  for  that  offence  must  be launched within  the period of limitation which is mentioned in section  468 of the Code. It is common ground that if the offence is  non-continuing, the  period  of  limitation  for filing the  complaint will be one year as provided in clause (b) of  sub-section (2) of section 468 since, the offence in the instant  case is  punishable with imprisonment which may extend to three months or with fine.      It is impossible to accept Shri Bobde’s contention. The expression ’continuing  offence’ is  not defined in the Code but, that  is because  expressions which do not have a fixed connotation or  a static import are difficult to define. How difficult it  is to  put the concept of a continuing offence in a  strait jacket  is illustrated  by the decision of this Court in  State of  Bihar v.  Deokaran Nenshi. In that case, respondents who were owners of a stone quarry in Bombay were required to forward certain annual returns in respect of the preceding year,  on or  before  January  21  in  each  year. Failure to  forward the  returns as  required is  punishable with fine  under section  66 of  the Mines  Act,  1952.  The respondents having  failed to furnish the returns by the due date, which  was January  21, 1960  a  complaint  was  filed against them in a Court at Dhanbad on April 12, 1961. One of the contentions  of the  respondents was  that the complaint was barred  by limitation  under section 79 of the Mines Act which provided  that no  Court shall  take cognizance  of an offence under that Act unless the complaint was filed within six months  of the  date of  the offence. The Explanation to section 79 633 provided that  if the  offence in  question was a continuing offence, the  period of  limitation shall  be computed  with reference to  every part  of the  time during which the said offence continued.  It was  held  by  this  Court  that  the infringement which  occurred on  January 21  of the relevant

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year was  complete when  the owner  failed  to  furnish  the annual returns  on that  date. Since, the Regulation did not lay down  that the owner would be guilty of an offence if he continued to  work the  mine without furnishing the returns, the offence was non-continuing and, therefore, the complaint was time barred. While discussing the question as to when an offence could  be said to be a continuing offence, the Court made the following observations:           "A 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 out  of a  failure  to  obey  or      comply  with  a  rule  or  its  requirement  and  which      involves a  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  therefore, constitutes a      fresh offence  every  time  or  occasion  on  which  it      continues. In  the case  of a continuing offence, there      is thus  the ingredient  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 " (p. 1006)      This passage  shows  that  apart  from  saying  that  a continuing  offence  is  one  which  continues  and  a  non- continuing offence  is one  which is  committed once and for all, the  Court found  it difficult to explain as to when an offence can  be described  as a  continuing offence.  Seeing that difficulty,  the Court observed that a few illustrative cases would  help to  bring out  the distinction  between  a continuing  offence   and  a   non-continuing  offence.  The illustrative cases  referred to  by the Court are three from England, two from Bombay and one from Bihar. 634      In Best  v. Butlar  and Fitzgibbon,  the English  Trade Union Act,  1871 made it penal for an officer or a member of a Trade Union to wilfully withhold any money, books, etc. of the Trade  Union. It  was held in that case that the offence of withholding the money was a continuing offence, the basis of the  decision evidently  being that  every day  that  the moneys were wilfully withheld, the offence was committed.      In Verney v. Mark. Fletcher & Sons Ltd., section 10 (1) of the  Factory and  Workshop Act,  1901 provided that every fly-wheel directly  connected with  steam,  water  or  other mechanical  power  must  be  securely  fenced.  Section  135 provided the penalty for non-compliance with section 10 (1), while section  146 provided  that information of the offence shall be  laid within  three months  after the date on which the offence  comes to the knowledge of the Inspector. It was held that  the breach  of section  10 (1)  was a  continuing breach and  therefore the information was in time. Every day that the  fly-wheel remained  unfenced, the  factory was run otherwise than  in conformity  with the  Act  of  1901  and, therefore,  the   offence  defined   in  section  10  was  a continuing offence.      The third English case referred to is The London County Council v.  Worley, in  which section  85 of  the Metropolis Management Amendment  Act, 1852 prohibited the erection of a building  on   the  side   of  a   new  street   in  certain circumstances, without  the consent  of  the  London  County Council. The  Court construed  section 85  as  creating  two

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offences: building  to a  prohibited height  and, continuing such a structure already built after receiving a notice from the County  Council. The  Court held that the latter offence was a continuing offence.      In Emperor  v. Karandas,  section 390 (1) of the Bombay City Municipal Act, 1888 provided that no person shall newly establish  in   any  premises   any  factory  of  a  certain description  without   the  previous   permission   of   the Commissioner nor shall any person work or allow to be worked any such factory without such permission. It was held by the High Court  that establishing  a new  factory was an offence committed once and for all but working it without permission was a continuing offence. 635      In The  State of  Bombay v.  Bhiwandiwala. it  was held that the  offence of using the premises as a factory without a licence is a continuing offence.      In State  of Bihar  v. J.P.  Singh, the  High Court  of Patna held  that conducting  a restaurant  without having it registered and  without maintaining  proper  registers  were continuing offences.      The decision  of  this  Court  in  State  of  Bihar  v. Deokaran Nenshi  to  the  effect  that  failure  to  furnish returns before the due date is not a continuing offence must be confined  to cases  of failure  to  furnish  returns.  It cannot be  extended to  cases like those before us in which, the contravention  is not  of a  procedural or formal nature and goes  against  the  very  grain  of  the  statute  under consideration. What  is of  closer resemblance  to the cases before us  are the three English cases, the two Bombay cases and the Patna case referred to by this Court as illustrative of cases  in which  the  offences  were  held  to  be  of  a continuing nature.  We adopt the reasoning in those cases as applicable to the circumstances of the instant prosecutions.      The  question   whether  a   particular  offence  is  a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and,  above all, the purpose which is intended to be achieved by  constituting the  particular act as an offence. Turning to  the matters  before us, the offence of which the appellants are  charged is the failure to pay the employer’s contribution before the due date. Considering the object and purpose of this provision, which is to ensure the welfare of workers, we  find it  impossible to hold that the offence is not   of   a   continuing   nature.   The   appellant   were unquestionably liable  to  pay  their  contribution  to  the Provident Fund  before the  due date and it was within their power to  pay it,  as soon after the due date had expired as they willed.  The late  payment could not have absolved them of their  original guilt  but  it  would  have  snapped  the recurrence. Each  day that  they failed  to comply  with the obligation to  pay their  contribution  to  the  fund,  they committed a  fresh offence.  It  is  putting  an  incredible premium on  lack of  concern for  the welfare  of workers to hold that the employer who has not paid 636 contribution or  the contribution  of the  employes  to  the Provident Fund can successfully evade the penal consequences of his  act by pleading the law of limitation. Such offences must be regarded as continuing offences, to which the law of limitation cannot apply.      our attention  has been  drawn to  a  judgment  of  the Bombay High  Court in Criminal Revision Applications 337 and 338 of 1976, which were decided by a learned single Judge on November 7,1977.  It was  held in  that  Judgment  that  the

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failure to  pay the  employer’s share of contribution to the Provident Fund  is not  a continuing  offence.  For  reasons which  we   have  mentioned  above,  we  dissent  from  that judgment. With  respect, we  are unable  to  appreciate  the reasoning of  that judgment  that if  the failure to pay the employer’s contribution is regarded as a continuing offence, it would  be open  to the  employer to  pay the contribution even after  the due  date has  expired, in  order to  escape punishment. The  concept of continuing offence does not wipe out the  original guilt.  It keeps  the contravention alive, day by day.      For these  reasons, we  are of  the  opinion  that  the offence of  which the  appellants are  charged, namely, non- payment of the employer’s contribution to the Provident Fund before the due date, is a continuing offence and, therefore, the period  of limitation  prescribed by section 468 of 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.      Before we  close, we  consider  it  necessary  to  draw attention to  the provision of section 473 of the Code which we have extracted above. That section is in the nature of an overriding provision  according  to  which,  notwithstanding anything contained in the provisions of Chapter XXXVI of the 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. The  hair-splitting  argument  as  to  whether  the offence alleged against the appellants is of a continuing or non continuing  nature, could  have averted by holding that, considering the  object and  purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of  the period  of limitation,  if any such period is applicable, because  the interest of justice so requires. We believe that in case of this nature, Courts 637 which are  confronted with  provisions which lay down a rule of limitation  governing prosecutions,  will give due weight and consideration to the provisions contained in section 473 of the Code.      We confirm  the view  of the High Court that in passing the impugned  order, the  learned Magistrate  has not in any manner reviewed his earlier order dated September 20, 1976.      In  the   result,  these  appeals  are  dismissed.  The prosecutions will  proceed and  be disposed of expeditiously in accordance  with law. The learned Magistrate will dispose of these  cases by considering all the points together, that is to  say, without  treating  any  particular  point  as  a preliminary point. N.V.K.    Appeals dismissed. 638