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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: DEOKARAN NENSHI

DATE OF JUDGMENT24/08/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. KHANNA, HANS RAJ

CITATION:  1973 AIR  908            1973 SCR  (3)1004  1972 SCC  (2) 890  CITATOR INFO :  R          1984 SC1688  (10,18)  R          1986 SC 293  (14)

ACT: Mines  Act  1952-S.  66-Failure to  furnish  returns--If  an offence  covered by s. 70 or whether a  continuing  offence- Tests.

HEADNOTE: The respondents are the owners of a stone quarry in  Bombay. Under  Regulation  3  of  the  Indian  Metalliferrous  Mines Regulations  1926, an owner, agent or manager of a  mine  is required  to forward to the District Magistrate and  to  the Chief Inspector, annual returns in respect of the  preceding year  in the forms prescribed on or before the 21st  January in  each  year.  Under Section 66 of the Mines Act  1952,  a person  omitting to furnish the returns is liable to  pay  a fine which may extend to Rs. 1,000/-. The respondents failed to furnish to the Chief Inspector the annual returns for the year 1959, by the 21st January,  1960 even  after warning from the Chief Inspector.  A  complaint, was filed in the Court of the Magistrate, Dhanbad, on  April 12,  1961.   Two questions were agitated  before  the  trial Court, the High Court, and also before this Court. (1)  That Dhanbad Court had no jurisdiction to entertain the complaint and (2) that the complaint was barred by limitation under s. 79 of the Mines Act 1952, which provided that no Court shall take  cognizance  of  ,in offence under  the  Act  unless  a complaint  was made within six months from the date  of  the offence.   The explanation to the section 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. Dismissing the appeal, 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.   A complaint has to be filed under s. 79, within 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  a continuing  offence, covered by the Explanation thereto,  it was  held  that  a  continuing  offence  is  one  which   is

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susceptible  of continuance and is distinguishable from  the one  which is committed once and for all.   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. [1006C-G] The  London  County Council v. Worley, [1894]  2  Q.B.  826, Butler  and  Pitzgbbai, [1932] 2 K.B. 108,  Verney  v.  Mark Fletcher & Sons Ltd [1909] 1 K.B. 444, Rex v. Talor,  [1908] 2  K.B.  237 and.  Emperor v. Karsandoz,  A.I.R.  Bom.  326, referred to. (ii) Regulation  3 read with s. 66 of the 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 clearly ,indicates that a  mine owner, or his agent, would be liable to penalty, if 1005 he  fails to furnish the returns on or before January 21  of the succeeding year.  The infringement, in the present case, therefore, occurs on January 21 of the relevant year and  is complete on the owner failing to furnish 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 carry on  the  mine  without furnishing the returns  or  that  the offence continues if the requirement of Regulation 3 is  not complied with.  In other words, Regulation 3 does not render a  continued disobedience or non-compliance of it by  itself an  offence.  Therefore, the complaint was time  barred  ’as the offence in question fell within the substantive part  of s. 79 of the Act and of under the Explanation attached to it and in view of the second question.     The  first  question regarding jurisdiction required no answers. [1009C]

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION : 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. Agarwala, for the appellant. C.   L. Sanghi, D. N. Mishra and M/s J. B. Dadachanji & Co., for the respondent. The Judgment of the Court was delivered by Shelat, J. Sec. 66 of the Mines Act, 1952 provides that  any person  omitting  inter alia to furnish any  return,  notice etc.  in the prescribed form or manner or at or  within  the prescribed  time required by or under the Act to be made  or furnish  shall be punishable with fine which may  extend  to Rs.  1,000/-.   See,. 79 however lay-, down  that  no  court shall take cognizance of any offence under this Act unless a 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  provides  that  if the offence  in  question  is  a continuing  offence,  the  period  of  limitation  shall  be computed with reference to every point of time during  which

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the said offence continues.  Under Regulation 3 of the India Metalliferrous  Mines Regulations, 1926, an owner, agent  or manager of every mine is required to forward to the District Magistrate  and  to the Chief Inspector  annual  returns  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 owners of a 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 1006 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,  a complaint was filed in 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  a 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 prescribed 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.  A 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 substantive  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 the kind, often called a  continuing offence, in which event the Explanation to  S. 79 would operate. 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. A  few  illustrative  cases  would help  to  bring  out  the distinction between the two types of offences. In England the Trade Union Act, 1871 by S. 12 provided  that if any officer. member or other person being or representing himself  to  be  a  member  of  a  trade  union,  by   false representation or

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1007 imposition  obtained possession of any moneys books etc.  of such  trade  union, or, having the same  in  his  possession wilfully  withheld  or fraudulently misapplied the  same,  a 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 a  continuing  offence, presumably  because every day that the moneys were  wilfully withheld  an  offence  within  the  meaning  of  s.  12  was committed. (Best v. Butler and Fitzgibbon(1)]. In Verney  v. Mark  Fletcher  &  Sons Ltd. (2) , the  question  again  was whether  the  offence for which the information  was  lodged therein was a continuing offence.  Sec. 10(1) of the Factory and  Workshop Act, 1901 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 a 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 a  factory or workshop if he, failed to keep the factory  or workshop in conformity with the Act.  Sec. 146 provided that information  for  the  offence 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 contention 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 information, however, stated that  the  fly- wheel was unfenced on July 5, 1908, and that was the offence charged.   It  was  held  that the breach of  s.  10  was  a continuing  breach  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 continued to be an  offence. Hence the offence defined in s. 10 was a continuing offence. [See  also  Rex  v. Yalore(3)] Sec.  85  of  the  Metropolis Management Amendment Act, 1852 prohibited the erection of  a building  on  the side of a new street of less  than,  fifty feet  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  a further  penalty  for every day during  which  such  offence should  continue after notice from the County Council.   The Court  construed s. 85 to have laid down two  offences;  (1) building  to a prohibited height and (2) continuing  such  a structure  already built after receiving a notice  from  the County Council.  The latter offence (1)  [1932] 2 K.B. 108. (2) [1909] 1 K.B. 444. (3)  [1908] 2 K.B.237. 1008 was a 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(1)] In Emperor v. Karandas, (2) the question was as to the  pro- per  construction of S. 390, sub-s. (1) of the  Bombay  City Municipal  Act,  1888.   That subsection  provided  that  no person shall newly establish in any premises any factory  in which it was intended that steam, water or other  mechanical power should be employed without the previous permission  of

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the  Commissioner nor shall any person work or allow  to  be worked tiny factory without such permission.  The subsection thus laid down two distinct offences; (1)establishing a  new factory  in which mechanical power was intended to  be  used without  the permission, and (2) working such a  factory  in which  mechanical  power  was intended to  be  used  without permission.  The High Court held that the first offence will be  completed  when a now factory  was  established  without permission, an offence completed one and for all. while  the other  offence  would be committed whenever such  a  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 a very’ happy expression, it was very often used.  A may not continuously work such a 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 a factory he committed an offence.  The distinction  between the  two  kinds  of  offences  It\  between  an  act   which constituted  an  offence once and for all and an  act  which continued, and therefore, constituted a fresh offence  every time  on  which  it  continued.   Similarly,  in  States  v. Bhiwandiwala,(3)  three  offences were charged  against  the respondent,  (1)  failure  to submit  a  written  notice  of occupation  of  his factory as required by S.  7(1)  of  the Factories  Act, 1948, (2) failure 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 a factory without  a 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 a complaint in respect of them would be barred if it was lodged  beyond the period of three months from the  date  of the  offence under s. 106 of the Act.  But a prosecution  in respect of the third offence would not be so barred as  that offence was a continuing offence in the sense that using the premises  as a factory without registration and licence  was an offence committed every time that the premises were  used as a factory.  Likewise, in Bihar (1)  [1894] 2 QB 826 (2) A.I.R. 1942 Bom. 326. (3)  I.L.R. [1955] Bom. 192. 1009 v.   J.  P.  Singh, (1) the High Court of  Patna  held  that conducting  a  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   a restaurant was run without its being, registered and without maintaining  the  requisite registers was  an  offence,  and therefore,  the period of limitation under s. 36 of the  Act would  begin to run from the date of the occurrence of  each of the defaults. (see) also State v. Laxmi Narain(2) 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  a mine would be liable to the penalty if he were to commit  an infringement   of  the  Regulation  and  that   infringement consists  in  the failure to furnish returns  on  or  before January  21  of  the  succeeding  year.   The   infringement therefore, occurs on January 21 of the relevant year and  is complete on the owner failing to furnish the annual  returns

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by  that  day.  The Regulation does not lay  down  that  the owner manager etc. of the mine concerned would be guilty  of an  offence  if he continues 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 a continued  disobedience  or  non- compliance  of  it  an  offence.   As  in  the  case  of   a construction  of a wall in violation of a rule or a  bye-law of a local body, the offence would be complete once and for all  as soon as such construction is made, a default  occurs in furnishing, the returns by the 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  ’Explanation  attached  to  it.   The   appeals, therefore, must fail and is dismissed. S.C.                 Appeal dismissed. (1)  1963 Bihar Law Journal Reports, 782. (2)  A.I.R. 1957 All. 343. 5-L172 Sup.  CI/73 1010