Rajasthan High Court - Jaipur
Niyazuddin vs State Of Rajasthan And Anr. on 3 September, 1997
Equivalent citations: 1997(3)WLC589, 1997(2)WLN406
JUDGMENT N.L. Tibrewal, J.
1. All the petitions raise a common question of law of general importance as such they are disposed of jointly. The question that falls for consideration is : Whether offences punishable under Section 31, 32, 33 and 72 of the Jaipur Development Authority Act (herein after to be referred to as 'the Act') are continuing offences? In ease, the question is answered in affirmative the bar of limitation for initiation of criminal proceedings shall not apply, otherwise a complaint would be required to be filed within the prescribed period of limitation.
2. The above question assumes importance because of the provisions contained in Chapter-XXXVI of the Code of Criminal Procedure (for short the Code) under the head "limitation for taking cognizance of certain offences". Section 468, 472 and 473 are relevant for our purpose and they are as follows:
Section 468. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided else where 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 any 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.
(3) For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
Section 472. Continuing offence--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.
Section 473. Extension of portion of limitation in certain cases--Not-withstanding 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 interest of justice.
A perusal of the above Sections makes it clear that Section 468 creates a bar for taking cognizance of the offences of the category specified in Sub-section (2) after expiry of prescribed period of limitation. The bar of limitation contained in Section 468, however, is not applicable in the case of a continuing offence as a fresh period of limitation beings to run at every moment of the time during which the offence continues. Then, Section 473 empowers the Court to take cognizance of an offence even after expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that delay has been properly explained or that it is necessary to do so in the interest of justice. The provisions of limitation have been incorporated with a view to prevent filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecution. But, continuing offences have been kept out-side the purview of limitation having regard to their gravity and other relevant factors.
3. The expression 'continuing offence' is not defined in the Code and by its very nature it is difficult to put the concept of continuing offence in a strait-joket or cast-iron formula. However, the test for deciding the question as to whether an offence is a continuing offence or not, the Judicial Courts by and large have accepted and recognized that if the act of infringement constituting an offence continues from day to day, then, a fresh offence is committed by the accused on every day so long as the act continues. On the other hand, if the act is concluded once for all, it would not constitute a 'continuing offence' Normally and in the ordinary course, an offence is committed only once, but, there may be offences which can be committed from day to day which are described as continuing offences.
4. Before adverting to the crucial question as to whether offences under sections 31, 32 and 33 of the Act are continuing offences or not, it would be fruitful to notice some Judicial pronouncements cited at the Bar in order to seek guidance on the controversy.
5. In Emperor v. Karsandas Govind Ji AIR 1942 Bombay 326 the accused was acquitted of the charge Under Section 390(1) of the City of Bombay Municipal Act, 1888, which provides that no person shall establish, in any premises, factory in which it is intended that steam, water and other mechanical power shall be employed without previous written permission of the Commissioner, nor shall any person work or allow to be worked in such factory without such permission. The trial Magistrate acquitted the accused holding that the offence was committed once for all--when the work was commenced in the factory--and prosecution of the same was barred Under Section 514 of the Act which stipulated that no person shall be liable for punishment for the offence Under Section 390 except within three months next after commission or discovery of such offence. The view taken by the Magistrate was not accepted by the Division Bench of Bombay High Court and it was held therein:
But the expression has a well recognized meaning. It means that if an act of the accused constitutes an offence and if that act continues from day to day, then a fresh offence is committed on every day on which the act continues. If the act prohibited is that of working a factory an offence is committed on every day on which the factory is worked. It may not strictly be a continuing offence, because the owner of the factory may cease to work it for a longer or a shorter period and then reopen it, but on any day on which he is shown to have worked the factory without the requisite permission, he has committed an offence, and it is immaterial to consider whether he committed an offence by working the factory on some previous occasion. The head note in 32 Bom.l.R. 768 says: "Limitation for a prosecution for a continuing offence runs from the time when the offence is first committed." if the expression "the offence is first committed" refers to the date when the act constituting the offence first took place, the statement is obviously wrong, because it would abolish altogether the distinction which has been recognized over and over again between an act which constitutes an offence once and for all, and an act which continues, and, therefore, constitutes a fresh offence on every day on which it continues. Under Section 390 the establishing of a factory without permission is an offence committed once and for all when the factory is established, but the working of a factory without permission is an offence which arises on every day on which the factory is so worked and as the prosecution in this case is for working the factory two days before the date of the summons, it is plain that Section 514 is no bar to the prosecution.
6. In State v. A.H. Bhinwardawala , it was held that the offence of using the premises as a factory without licence is a continuing offence.
7. In State of Bihar v. Deokaran Nenshi and Anr. , was a case arising under the Mines Act, 1952. Section 66 of the Act provides that any person omitting inter-alia to furnish any return, notice etc. in the prescribed form or manner or within the prescribed time required by or under the Act to be made or furnished shall be punishable with fine which may extend to Rs. 1,000/-Section 79 however, lays down that no court shall take congnizance 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 come to the knowledge of the Inspector, whichever is later. The explanation to the section provides that if the offence in question is 'continuing offence', the period of limitation shall be computed with reference to every point of time during which the said offence continues. The Apex Court of the country held that the offence was not a continuing offence and it was laid down thus:
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, constitute 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.
(Emphasis supplied)
8. In Bhagirath Kanoria and Ors. v. State of M.P. , non payment of employer's contribution of the Provident fund within 15 days in violation of Paragraph 38 of the scheme or a similar condition specified under Section 17 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 was held to be a 'continuing offence' looking to the nature of the contravention.
It was observed as under:
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 appellants were unquestionably liable to pay their contribution to the Provident Fund before 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 his contribution or the contribution of the employees to the Provident fund can successfully avade 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.
9. Two English cases on the subject may also be conveniently referred. In Verney v. Mark Fletcher & Sons Ltd. (1909) 1 KB 444 : 100L.T.348 (DC). 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 the fly-wheel remained un-fenced and the factory was run otherwise than in conformity with the Act of 1901 constituted an offence defined in Section 10 and it was a continuing offence.
10. In London Country Council v. Worley (1894) 2 QB 826 : L.T. 484. Section 85 of the Metropolis Management Amendment Act, 1852 prohibited erection of a building on the side of a new street in certain circumstances, without the consent of the London Country Council and imposed penalties for offences against the Act and, in case of a continuing offences a further penalty for every day during which such offence shall continue after notice from the Country Council. It was held that Section 85 creates two 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.
11. In Jaipur Development Authority v. Prahlad Kumar 1987 R.L. W. 315, the question for consideration was, whether the offence under Section 33 (2) of J.D.A. Act is continuing offence ? It was held by this Court that the offence is a continuing offence, if the construction work is carried on even after service of notice to stop the same.
12. In Jaipur Development Authority through its Secretary v. Banwari Lal 1993 Cr. L.R. (Raj.) 587, a learned Single Judge of this Court has taken the view that the offence punishable under Section 31(1), 32(7) and 33(2) are continuing offence so long as the act constituting the offence continues.
13. Now, turning to the real controversy in back-ground of the views expressed by various judicial courts, it would be necessary to look into various provisions of the Act; the language employed in the sections creating offence, the nature of the offence and the purpose which was intended to be achieved by constituting a particular act as an offence. The Jaipur Development Authority Act is a special Act which is enacted with a view to ensure that town planning/developmental schemes are made and executed in a proper and effective manner. The Jaipur Development Authority (J.D.A.), constituted and established under Section 3 of the Act, is mainly responsible to prepare various development plans, projects and schemes and to carry out survey for a proper development of Jaipur region or any part thereof, Jaipur City is expanding out of proportion. For its planned and systematice development it is inevitable that development work and erection of buildings are made in accordance with the. schemes and other development plans after seeking permission/sanction from the Authority. For this it is necessary to check unauthorised development and constructions and to take penal action against the wrong doers. Section 31, 32 and 33 of the Act, which are relevant for our consideration are incorporated in Chapter-VI under the head "Control of development and use of land included in plans". Section 31 provides penalty for unauthorised development and use of land otherwise than in conformity with the plan and permission. Section 32 empowers the Authority to remove any unauthorised development, while Section 33 empowers to stop unauthorised development. The Authority, thus, has been exclusively entrusted with the duty of framing and implementation of the schemes etc. and is invested with almost all plenary powers.
14. Section 31 reads as under:
31. Penalty for unauthorised development or for use otherwise than in conformity with the plan--(1) any person who whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, or changes the use of any land:
(a) without permission required under this Act; or
(b) which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted; or
(c) after the permission for development has been duly revoked; or
(d) in contravention of any permission which has been duly modified;
Shall, on conviction, be punished with fine which may extend to five thousand rupees, and in the case of continuing offence with a further fine which may extended to one hundred rupees for every day during which the offence continues after conviction for the first commission of the offence.
(2) Any person who continues to use or allows the use of any land or building in contravention of the provisions of a plan without being allowed to do so under Section 17 or where the continuance of such use has been allowed under that section continues such use after the period for which the use has been allowed or without complying with the terms and conditions under which the continuance of such use is allowed, shall, on conviction be punished with fine which may extend to two thousand rupees; and in the case of a continuing offence, with a further fine which may extend to two thousand rupees; and in the case of a continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.
This Section is in two parts and each part constitutes a distinct and separate offence. Though Sub-section (1) is not happily worded, but the language employed in it makes it clear that it prohibits any development/ construction work or use of land without permission/sanction of the Authority and the act of making such unauthorised development or use of land in contravention of any of the clauses enumerated therein constitutes an offence. The act. constituting the offence starts from commencement of such unauthorised development and use of land and continues till it continues. In other words from the date of commencement till completion or cessation of unauthorised development or use of land otherwise than in conformity with permission and plan, the offence Under Section 33(1) is committed on every day of course on. completion or cessation of such development or use of land the offence, stands committed once and for all. The latter part of Section 31(1) providing punishment further states that after conviction for the act of making unauthorised development/construction and use of land if the act constituing the offence continues then it will carry on further penalty of fine which may extend to rupees one hundred for every day during which the offence continues.
15. Sub-section (2) of Section 31 prohibits user of any land or building in contravention of the provisions of a plan without being allowed to do so under Section 17 or continuation of such uses after the period for which the use has been allowed or without complying with the terms and conditions under which continuance of such use is allowed. It constitutes a distinct and separate offence than that of Sub-section (1). The penalty provided for the contravention as per Sub-section (2) is for every day during which such offence continues. The Act constituting an offence under Sub-section (2) arises on every day on which the prohibited use of land or building is made, giving fresh period of limitation at every moment of the time during which the offence continues. Thus, it is a continuing offence.
16. The relevant portion of Section 32 reads as under:
Section 32. Power to required removal of unauthorised development--(1) Where any development of land has been carried out as indicated in Sub-section (1) of Section 31, the Authority may, subject to the provisions of this section, within three years of such development, serve on the owner a notice requiring him, within, such period, being not exceeding one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice.:
(a) in case specified in Clause (a) or (c) of sub-section 31 to restore the land to its condition existing before the said development took place;
(b) in cases specified in Clause (b) or (d) of Sub-section (1) of Section 31 to secure compliance with the conditions or with the permission as modified;
Provided that, where the notice requires the discontinuance of any use of land the Authority shall serve a notice on the occupier also.
(2) In particular, such notice may, for purposes of sub- section (1), required:
(a) the demolition or alteration of any building or work;
(b) the carrying out on land of any building or other operations; or
(c) the discontinuance of any use of land.
(3) ....
(4) ....
(5) ...
(6) if within the period specified in the notice or within the same period after the disposal of the application under sub- section (4), the notice or so much of it as stands is not complied with, the Authority may:
(a) prosecute the owner for not complying with the notice and where the notice requires the discontinuance of any use of land, any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and
(b)....
(7) Any person prosecuted under Clause (a) of Sub-section (6) shall, on conviction, be punished with fine which may extend to five thousand rupees; and in the case of a continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.
Sub-Section (7) of Section 32 makes the owner, making any unauthorised development of land as indicated in Sub-section (1) of Section 31 and failing to obey or comply with the notice given to him under Sub-section (2), liable for not carrying out the direction given in the notice. Where the notice requires the discontinuance of any use of land, any other person who uses the land or causes or permits the land to be used in contravention of the notice, is also liable to prosecution and conviction under Sub-section (7). The offence, therefore, continues till requirement of the notice is not complied with. On every occasion when such disobedience occurs and re-occurs, the offence is committed and, thus, it is continuing offence till the disobedience or non-compliance of notice continues.
17. The relevant portion of Section 33 is also reproduced for the sake of convenience and it leads as under:
33. Power to stop unauthorised developmental) Where any development of land as indicated in Sub-section (1) of Section 31 is being carried out but has not been completed, the Authority may serve on the owner and the person carrying out the development, a notice requiring the development of land to be discontinued from the time of the service of the notice; and thereupon, the provisions of Sub-section (3), (4), (5) and (6) of Section 32 shall, so far as may be applicable, apply in relation to such notice, as they apply in relation to notice under Section 32.
(2) Any person, who continues to carry out the development of land, whether for himself or on behalf of the owner or any other person, after such notice has been served shall, on conviction, be punished with fine which may extend to five thousand rupees; and when the non-compliance is a continuing one, with a further fine which may extend to one hundred rupees for every day after the date of the service of the notice during which the non-compliance has continued or continues.
(3)...
(4) After a requisition order under Sub-section (3) has been complied with, any person or his assistants and workmen subsequently continuing unauthorised development shall, on conviction, be punishable under Section 71 of this Act, in addition to the action under Sub-section (3).
A perusal of the above provisions makes it clear that the offence is a continuing one.
18. Relevant portion of Section 72 (1) reads as under:
72. Obstruction and encroachment upon public streets and open space (1) whoever in any place after in has vested in the Authority shall have built or setup, or shall build or set up, any wall or any fence, rail-post, stall verandah, platform, plinth, step or any projecting structure or thing or other encroachment or obstruction except steps over drains in any public street or shall place or deposit or cause to be placed or deposited any box, bale, package or merchandise or any other thing in such street or in or over or upon any open space, drain, gutter, sewer or aqueduct in such street, shall be punished with fine which may extend to one thousand rupees.
The object and purpose of this provision is to ensure removal of obstruction and encroachment upon a public street and open spaces. I find it difficult to hold that the offence is not of continuing nature. Such offence must be regarded as 'continuing offence' to which the law of limitation should not apply.
19. Thus, the acts constituting offences under sections 31(2), 32(7), 33(2) and 72(1) are continuing offence. Under Sub-section (1) of Section 31, for making an unauthorised development, after its completion or cessation the offence stands committed once and for all, but after conviction for the first commission of offence, if unauthorised development or use of land constituting the offence continues, then, it is a continuing offence arising on every day till the act continues.
20. In view of the above, all the petitions deserve to be dismissed and they are hereby dismissed.