Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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