Punjab-Haryana High Court
Balram Singh vs Sukhwant Kaur And Anr. on 9 January, 1991
Equivalent citations: 1992CRILJ792
JUDGMENT A.P. Chowdhri, J.
1. The short significant question for our decision is -- whether the offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code is a continuing offence.
2. While hearing Cri. Misc. No. 7923-M of 1989 J.S. Sekhon, J. noticed a conflict of views on the point. In Cri. Misc. No. 2985-M of 1989 (Renu and Ors. v. The State of Haryana) decided by J.S. Sekhon, J. on February 12, 1990, and in Hakam Singh v. The State of Punjab, 1989 (2) Recent CR 442, decided by one of us (A.P. Chowdhri, J.), it was held that the offence under Section 406 was a continuing offence. In Gurvel Singh v. Rajinder Singh, 1990 Marriage Law Journal 131, S.D. Bajaj, J., on the other hand, held that Section 406 did not amount to a continuing offence.
3. By order dated May 3, 1990, the learned Judge referred the aforesaid question for decision by a larger Bench. This is how the case has been heard by us.
4. Chapter XXXVI (Sections 467 to 473) relating to limitation for taking cognizance of certain offences was added in the Code of Criminal Procedure, 1973, for the first time. Section 467 relates to definitions. Section 468 prescribes the period of limitation for various offences, a smaller period of limitation having been prescribed for offences punishable with smaller imprisonment and larger period of limitation being prescribed for offences punishable with greater imprisonment. The period of limitation for offences punishable up to three years, is three years. The offence under Section 406 would fall in this category unless it was held to be a continuing offence. Section 469 relates to commencement of the period of limitation. Sections 470 and 471 deal with exclusion of time in certain cases. Section 472 lays down that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of time during which the offence continues. And lastly Section 473 empowers the Court to take cognizance of an offence after the expiry of period of limitation if it is satisfied, on the facts and circumstances of the case, that the delay has been properly explained or that it was necessary to do in the interest of justice.
5. As the question before us is not directly covered by any decided case, we have examined the question on principle as well as with the aid of precedents.
6. The expression "continuing offence" occurring in Section 472 of the Code of Criminal Procedure is not defined in the Code. In State of Bihar v. Deokaran Kenshi, AIR 1973 SC 908 : (1973 Cri LJ 347), which is a locus classicus on the subject, the concept of continuing offence was explained by the Supreme Court in these words (at page 348 of Cri LJ) :--
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.
7. The question again came up for consideration in Bhagirath Kanoris v. State of M.P., AIR 1984 SC 1688 : (1984 Lab IC 1578). Their lordships referred to the above passage in Deokaran Nenshi's case (supra) and observed that it was obviously difficult to explain the concept of continuing offence and in view of the said difficulty the apex Court gave a few illustrative cases 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.
8. In Best v. Butler and Fitzgibbon, (1932) 2 KB 108 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.
9. In Verney v. Mark Fletcher & Sons Ltd., (1909) 1 KB 444, 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 flywheel 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.
10. The third English case referred to is The London County Council v. Worley, (1894) 2 QB 826, 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 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 Emperor v. Karsandas, AIR 1942 Bombay 326 : (44 Cri LJ 120), Section 390(1) of the Bombay City Municipal Act, 1988, 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.
12. In State of Bombay v. Bhilwandiwala, ILR (1955) Bombay 192 : AIR 1955 Bombay 161 : (1955 Cri LJ 666), it was held that the offence of using the premises as a factory without a licence is a continuing offence.
13. In State of Bihar v. J.P. Singh, 1963 BLJR 782 the High Court of Patna held that conducting a restaurant without having it registered and without maintaining proper registers were continuing offences.
14. It was laid down in Bhagriath Kanoria's case (supra) that 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. In the said case, the question was whether non-payment of contribution by the employer to provident fund in contravention of the Employees Provident Fund and Family Pension Fund Act, 1952, was a continuing offence or not. It was observed that the appellants were unquestionably liable to pay their contribution to the provident fund before the due date. 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 obligations to pay their contribution to the Fund, they committed a fresh offence. It was further observed by their Lordships that it was putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who had not paid his contribution to the Provident Fund could sucessfully evade the penal consequences of his act by pleading the law of limitation. It was, therefore, held that the offence was a continuing one. Having regard to the nature of the offence and the purpose which is intended to be achieved by constituting criminal breach of trust as an offence, we are of the view that the offence in question is a continuing one.
15. The matter can be viewed from another angle. Section 410 of the Indian Penal Code defines 'stolen property'. The definition is broad enough to include within its sweep property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed and it continues to be so till it comes into possession of a person legally entitled thereto. In other words, once a property is criminally misappropriated or in respect of which criminal breach of trust has been committed the same continues to be stolen property till it is restored to the person entitled to its possession. The above provision furnishes a key to the understanding of the nature of the offence of criminal misappropriation and criminal breach of trust. On principle, therefore, we are of the considered view that the offence under Section 406 of the Indian Penal Code is continuing offence.
16. Coming to the precedents, a learned single Judge of this Court in Waryam Singh v. The State of Punjab, Cri. Revision No. 840 of 1979, decided on January 8, 1982, and briefly reported as 1982 Cri LJ NOC 137 (P&H) took the view that the offence under Section 406 is not a continuing offence. In coming to the above conclusion, it was noted by the learned Judge that the above proposition was conceded by the counsel appearing for the State and also the Supreme Court had proceeded on the same footing in the State of Punjab v. Sarwan Singh, 1981 PLR 451 :(1981 Cri LJ 722) (SC). In Sarwan Singh's case (supra) the question whether the offence under Section 406 of the Indian Penal Code was continuing or non-continuing one was neither debated nor decided. Their Lordships proceeded on the footing that the said offence did not constitute a continuing offence. The above decision cannot, in our view, be taken as a binding precedent in support of the proposition that the offence under Section 406 of the Indian Penal Code is not a continuing offence.
17. In Gurcharan Singh v. Lakhwinder Kaur, 1987 (1) Recent CR 424 (again reported as 1988 (2) Recent CR 621) a learned single Judge of this Court proceeded on the assumption that the offence under Section 406 of the Indian Penal Code was not a continuing one. In fact, it was not disputed by learned counsel for the parties that the period of limitation prescribed for the offence under Section 406 was three years.
18. The next decision to which reference may be made, is Shivalik Ice Factory and Cold Storage v. Registrar of Companies, 1988(2) Recent CR 24, The question which arose in that case was whether non-filing of returns in contravention of the provisions of Sections 159, 162 and 220 of the Companies Act amounted to a continuing offence. It was held that the offence disclosed was a non-continuing one as the offence was committed once and for all, whom a person liable to file the return failed to do so.
19. In Gurvel Singh's case (supra), S.D. Bajaj, J. following Sarwan Singh's case (supra) and Waryam Singh's case (supra) held that the offence under Section 406 of the Indian Penal Code was not a continuing one. Both the decisions relied on in Gurvel Singh's case have been dealt with above.
20. J.S. Sekhon, J. in Renu's case (Supra) had taken the view that the offence under Section 406 of the Indian Penal Code was a continuing offence. To the same effect was decision in Hakam Singh's case (supra) taken by one of us (A.P. Chowdhri, J.), sitting singly.
21. Oriental Bank of Commerce v. Delhi Development Authority, 1982 Cri LJ 2230, related to a prosecution for non-conforming user of premises in contravention of Section 29(2) of the Delhi Development Act. It was held by a Division Bench of Delhi High Court that the offence was a continuing one and it clearly implied that the offence continued de die in diem so long as mis-user continued.
22. We find an element of continuance in the offence of criminal misappropriation in view of the extended definition of 'stolen property'. The offence continues until the property which has been criminally misappropriated is restored to the true owner. We further find that the case of criminal misappropriation comes very close to one of the illustrations in Best's case (supra) cited in Deopkaran Nenshi's case (supra) in which it was held that the offence of withholding the money was a continuing offence, the basis of the decision being that every day that the money is wilfully withheld, the offence was committed.
23. In so far as precedents are concerned, therefore we find that there is no binding precedent of the Supreme Court. There is no decision directly on the point of a Division Bench either of this Court or of any other High Court. The single Bench decisions in which a contrary view has been taken have been explained and we, therefore, find that the question as to the nature of the offence under Section 406 of the Indian Penal Code -- whether it is continuing or a non-continuing offence -- has not been gone into and for the foregoing reasons, we hold that the offence under Section 406 of the Indian Penal Code is a continuing offence.
24. We answer the reference accordingly. The case will now be listed before the learned single Judge for disposal according to law.
Judgment Dated 21-3-1991 Passed By Hon'ble Single Judge.
25. The controvers whether the offence punishable under Section 406, Indian Penal Code, pertaining to non-return of stridhan of the wife by the husband and other relations of the husband was a continuing offence or not was referred by this Court in this petition to a larger Bench vide order dated 3-5-1990. The Division Bench had answered the reference vide its order dated 9-1-1991 in the affirmative holding that till the husband and the other relations, as the case may be, return the property forming part of the stridhan, a fresh cause of action accrues to the wife. Consequently, the contention of the petitioner that the complaint having been filed much after the expiry of period of limitation prescribed under Section 468(2)(c) of the Code of Criminal Procedure, is not tenable, as the period of limitation is not to be reckoned from the day when the wife was allegedly turned out of the house by the husband but would continue giving a fresh cause of action until the stridhan is returned.
26. Regarding the remaining merits of this petition, it transpires that the quashment of the complaint or the summoning order of the trial Court on the ground of vagueness of allegations in the complaint is not acceptable as the complaint had specifically stated regarding the entrustment of the stridhan and the refusal of the husband to return the same despite repeated requests and persuations by the other respectables. The mere fact that the name of those respectables did not figure in the complaint is thus of no consequence because of the well-known principle that it is the quality of evidence and not the quantity that counts.
27. For the foregoing reasons, there being no merit in this petition, it is ordered to be dismissed. The petitioner through his counsel is directed to appear before the trial Court on 23-4-1991.