Andhra HC (Pre-Telangana)
K. Ch. Pandu Ranga Rao vs The Secretary, Agricultural Appellate ... on 26 April, 1984
Author: K. Ramaswamy
Bench: K. Ramaswamy
JUDGMENT K. Ramaswamy, J.
1. The Andhra Pradesh (Agricultural Produce and Live Stock) Markets Act (16 of 1966), for short, "the Act", though couched with pragmatic provisions with sufficient elasticity to meet diverse situations, became ineffectual at the behest of the trader, a trustee de son tort, obligated under the Act to collect the market fee and to make over payment thereof to the Committee but was animated to have unjust enrichment, mainly due to the notorious recalcitrant executive apathy to take expeditious action by playing into the hands of dilatory tactics of the trader and partly due to inapt application of the relevant provisions by the Courts below.
2. The petitioner is a trader under the Act. He transacted trade in the notified agricultural produce (tobacco) in the notified market area and having collected market fee levied under S. 12(1) of the Act for the years from 1970 to 1975 failed to pay the same. When a demand for payment of the market fee of Rs. 96,859-80 ps. was made, he filed a writ petition in this Court, prevented collection thereof and when ultimately he was unsuccessful, he laid a suit in a representative capacity. The suit also became ineffectual. Yet another attempt was made by another suit to restrain the respondent committee from collecting the market fee, but proved to be abortive. In the meantime, a demand under Ex. P-1 D/- June 18, 1976 was made, followed by a show cause notice Ex. P-3 dated December 15, 1976 and notice for prosecution as required under R. 64, A.P. (Agricultural Produce and Livestock) Markets Rules, 1969, for short "the Rules" by Ex. P-6 D/- 22-12-1976 and yet did not make payment thereof. The Committee passed a resolution Ex. P-7 dt. 31-1-1977 under S. 25(2) authorising the Secretary to lay the complaint, but for the reasons undisclosed, no complaint was laid for an year and was laid under S. 23 of the Act on January, 30, 1978 before the trial Court.
3. The main defence set up by the petitioner is that the complaint is barred by limitation by operation of S. 468, Cr.P.C. 1973, for short, "the Code", since the complaint was laid beyond six months from the date of the demand under Ex. P-1 and that no explanation has been offered for the delay occasioned. But that objection was overruled holding that the respondent has offered satisfactory explanation for the delay thereof and the learned Magistrate accordingly convicted the petitioner under S. 23 read with S. 12(1) of the Act and sentenced him to pay a fine of Rs. 400/- in default to undergo rigorous imprisonment for one month. The petitioner was also directed to pay the market fee of Rs. 96,859-80 ps. The matter was carried in appeal. The appellate Court confirmed the conviction and the direction. In addition to the finding that the respondent offered sufficient explanation for the delay occasioned, it also held that the failure to pay the market fee is a continuing offence and, therefore, there is no limitation occasioned. Against that order, this revision has been filed.
4. The revision has come up before our learned brother, Chennakesav Reddy, J. The learned Public Prosecutor has argued that the decision reported in Khasim Baig v. State of Andhra Pradesh (1979) 2 A.P. LJ (HC) 398 requires reconsideration which was found to be having force. Therefore, the learned Judge referred the entire case to a Division Bench. Thus this matter has come up before us.
5. The main thrust of Sri. T. Bali Reddy, learned counsel for the petitioner is that the prosecution has been clearly barred by limitation. The sentence under S. 23 of the Act is one of fine. Therefore, under S. 468(2)(a) of the Code, the period of limitation for taking cognizance of an offence is six months. The demand was made on June 18, 1976 (Ex. P-1). The resolution under Ex. P-7 though was passed on 31-1-1977 to lay the prosecution, it was in fact laid on 30-1-1978, viz., one year thereafter. There is no explanation offered by the respondent for the delay of six months. The view of the Courts below that the explanation is proper is vitiated by error of law. The delay occasioned due to filing of the writ petition and pendency of the suit is not a proper explanation for the delay subsequent to the resolution Ex. P-7. The Courts below have committed error of law in not considering the case from this perspective. He also contended that the view of the learned single Judge that Khasim Baig's case (1979-2 APLJ (HC) 398) requires reconsideration is not warranted in view of the subsequent decisions of this Court in K. Hanumantha Rao v. K. Narasimha Rao (1981) 2 AP LJ (HC) 315 : (1982 Cri LJ 734) and of the Supreme Court in State of Punjab v. Sarwan Singh . The view of the lower appellant Court that the offence is a continuing offence is not correct in view of the recent judgment of this Court reported in Secretary, Agricultural Market Committee K. Valasa v. S.V.G. Oil Mills (1983) 2 A.P. LJ (HC) 385 : (1984 Cri LJ 503).
6. On the other hand, Sri. M. S. Prasad, learned standing counsel for the respondent Market Committee contended that the failure to pay the market fee is a continuing offence and therefore the question of limitation does not arise. Even otherwise, if it is to be construed that limitation would apply, the Court has power to take cognizance of the offence even after the expiry of the period of limitation, under the latter part of S. 473 of the Code, viz., "if it (the Court) is satisfied on the facts and in the circumstances of the case or it is necessary so to do in the interests of justice." The Courts below would have exercised this power. Therefore even though if the Court comes to the conclusion that there is no satisfactory explanation given by the respondent on the facts and circumstances in this case, it does not warrant interference in this revision. The learned Public Prosecutor supported the reference.
7. Upon the respective contentions, the questions that arise for consideration are :
(1) Whether the decision of the Division Bench in Khasim Baig v. State of A.P. (1979) 2 A.P. LJ (HC) 398 (supra) requires reconsideration ?
(2) Whether the failure to pay the market fee under S. 12(1) is a continuing offence ?
(3) Whether the prosecution has given satisfactory explanation for the delay in laying the complaint ?
8. Before answering these questions, it is necessary to adumbrate the relevant provisions of the Act. Under S. 7 of the Act, the petitioner is a trader having obtained licence there under for the purchase and sale of the notified agricultural produce (tobacco) within the notified market area. He transacted business during the years 1970 to 1975 and he was due of a sum of Rs. 96,859-80. Under sub-section (2), S. 12, the fee shall be paid by the purchaser of the notified a agricultural produce. The trader, undisputedly, is enjoined under the provisions of the Act to pay the market fee to the Market Committee. The failure thereof is declared to be an offence punishable under S. 23(1) of the Act, with fine which may extend to Rs. 500/-. Under sub-section (2) thereof, the Magistrate also in addition to impose fine under sub-section (1) is empowered to recover summarily the fee payable under sub-section (1) of S. 12 or S. 7 and to pay over to the Market Committee the amount of fee chargeable thereunder. Admittedly the petitioner did not make payment thereof. Therefore, he was rightly convicted and direction given by the trial Court and was confirmed by the appellant Court provided the complaint was laid within the limitation. This Court in Secretary Agrl. Market Committee. K. Valasa v. S.V.G. Oil Mills (1983) 2 A.P. LJ (HC) 385 : (1984 Cri LJ 503) (supra) speaking through one of us (K. Ramaswamy, J.) had an occasion to consider the applicability of limitation to the offences created under S. 23 and held in para 16 that Chap. XXXVI of the Code does apply to the offences created under the Act. To reach that conclusion the object of introducing the limitation under Chap. XXXVI of the Code was considered and in para 13 it was held :
"Expedition to send up the offender to take his trial for the offences complained of before the memory of the persons acquainted with the facts connected with the crime fades out and its effect diluted and to receive the verdict is a facet of the concept of fair procedure enshrined under Art. 21 of the Constitution." A person cannot be made to a wait in perpetual animation bereft of peace of mind, of the haunt of prosecution at the whim of the prosecutor. By legislative sanction new "offences" in countless Acts are created and many a time the person may be oblivious of committing an offence. Prior to April 1, 1974, there is no express embargo on the power of the Court to take cognizance of the offence laid at a belated stage but had discretionary power to decline convicting an offender, even if the offence is proved. Prescription of the period of limitation is a law relating to procedure and an extinctive prescription directing the person to work out the rights accrued under a contract or enforce remedies. created under law within the period provided by such law. It merely bars the remedy; and may sometimes extinguishes the rights. The person aggrieved is enjoined in initiate the action to redress the injury or enforce the right lest its efficacy denuded or the remedy remains unenforceable. Anson says in his Law of Contracts that "though the rights possess the permanent character, the remedies arising from their violation are by their various statutory provisions withdrawn after a certain lapse of time. The remedies are not extinguished". In other words, the remedy gets extinguished by operation of law of limitation. Legislature in recognition of the mandate of Art. 21 of the Constitution, seized of the situation, felt the need of its intervention, most acute, brought in the Cr.P.C., 1973, Chap. XXXVI putting limitation to take cognizance of certain class of offences; classified them to be grave and trivial, excluded the former by implication obviously on the touchstone of public interest, viz., safety of the society; elected to interpose by prescribing graded period of limitation even in respect of minor offences; excluded continuing offences from its purview; provided extension of time occupied in bona fide prosecutions under specified circumstances and provided an opportunity to the prosecution to give reasonable explanation for the delay caused to lay prosecution allowing discretion to the Court to condone the delay thereof in appropriate cases. This appears to have been done with a twin objective putting pressure on the prosecutor to be diligent to pursue prosecution and to repose peace to the offenders. In other words, Chap. XXXVI is a complete Code of limitation in respect of offenders punishable ranging with fine simpliciter to sentence of three years imprisonment, be they emanate or embraced either the Penal Code or any other law. This fact is discernible from a conjoint reading of S. 4(1) and (2) and saving S. 5 of the Code. This is also apparent from the statement of objects and reasons to introduce Chap. XXXVI. No doubt the statement of the objects and reasons cannot control the operation of the provisions when the language in the section is explicit. But when it is ambiguou they provide material and source to consider the scope and ambit of the Act or Section. S. 468(2)(a) of the Code provides that the period of limitation shall be six months if the offence is punishable with fine only. S. 23 of the Act prescribes only penalty of fine. Therefore, a complaint has to be laid within six months from the date of the offence and if it is laid thereafter, prohibition is engrafted against the Court from taking cognizance of such an offence after the expiry of the period unless satisfactory explanation is given for the delay occasioned therefor. The two objects to introduce Chap. XXXVI, relevant for the purpose of these cases, are thus :
Object No. 2 : For the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with the multifarious laws creating new offences many persons at sometime or the other commit some crime or the other. People will have no peace of mind if there is period of limitation even for petty offences.
Object No. 5 : The period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly.
The above objectives make the matter manifest that the Parliament is also cognizant of the offences created under special enactments when it is stated that "Within the multifarious laws creating new offences." It could also be seen that the Parliament after enacting Chap. XXXVI, has passed an enactment viz., Economic Offences (An applicability of Limitation Act 12 of 1974) excluding the Chap. XXXVI of the Code in respect of the offences mentioned in the schedule to the Act, as contemplated under S. 2 thereof. The Special Acts are not one of those excluded from the purview of Chap. XXXVI of the Code."
9. Their Lordships of the Supreme Court also considered the object in State of Punjab v. Sarwan Singh where S. M. Fazal Ali, J. speaking on behalf of the Court held that the object to put the bar of limitation on the prosecution was clearly to prevent the parties from filing cases after a long time, as result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complaint must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.
10. In S. M. Vikal v. A. L. Chopra their Lordships of the Supreme Court speaking through P. N. Shinghal, J. also considered the object of the limitation and held.
"It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also have the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor."
11. The result of the above discussion is that the law of limitation puts pressure on the prosecutor or the complainant to lay the prosecution expeditiously within the limitation provided under Chap XXXVI of the Code Lest the prosecution entails with dismissal. The object being to effectuate fairness of trial enshrined under Art. 21 of the Constitution. The offences created under S. 23 of the Act are also governed by the provisions of the limitation provided under Chap XXXVI of the Code.
12. Section 467 of the Code defines the period of limitation to mean the period specified in S. 468 for taking cognizance of an offence. Section 468 postulates that :
"(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."
Sub-section (2) thereof prescribes a period of six months for an offence punishable with fine only. Section 469(1)(a) provides that the period of limitation in relation to an offender shall commence from the date of the offence. Section 473, marginal note reads "the extension of period of limitation in certain cases" and the section starts with a non obstante clause stating that "notwithstanding anything contained in the foregoing provisions of the 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 (a) the delay has been properly explained or (b) that it is necessary so to do in the interests of justice. A conjoint reading of these fascicle of the provisions makes manifest that period of limitation has been prescribed under S. 468 and the Court is enjoined not to take cognizance of an offence specified in sub-section (2) of S. 468, after the expiry of the period of limitation. Notwithstanding such a prohibition, in view of the language "except as otherwise provided" in S. 468 which includes the one provided under S. 473 and with the non obstante clause in S. 473, the Court is invested with discretionary power to take cognizance of an offence despite the expiry of the period of limitation. The power is hedged with satisfaction of the Court on the facts and circumstances of the case (1) that the delay has been properly explained; or (2) that it is necessary to take cognizance in the interest of justice. In the former case it does not envisage to file an application to condone delay. It is needless to mention that the cognizance is being taken of an offence of the categories specified in sub-section (2). S. 468 but not of the offenders. Therefore at what point of time the Court is enjoined to go into the question of limitation is not explicit. The Courts have considered the intendment thereof and there is a cleavage of opinion among the High Courts. As far as this Court is concerned, in the two Division Bench decisions viz., Khasim Baig v. State of Andhra Pradesh (1979) 2 APLJ (HC) 398 (supra) and K. Hanumantha Rao v. K. Narasimha Rao (1981) 2 APLJ (HC) 315 : (1982 Cri LJ 734) (supra) to which one of us (Punnayya, J.) is a party, took the view that the Court could go into the bar of limitation even after the cognizance was taken on the charge-sheet or complaint, the process was issued and trial was conducted. This Court has held that it is incumbent to give an opportunity to the accused at the time when the question of delay was being considered on the facts and circumstances and explaining the delay or if the Court considered necessary in the interest of justice to take cognizance, though delay has not been properly explained. In fact this Court itself, in the above two cases, considered the facts and held that the delay has not been properly explained and on that ground the prosecutions were set at naught.
13. It is, open to the prosecuting agency to explain the delay to the satisfaction of the Court. After the expiry of the limitation prescribed in respect of the offences specified in sub-section (2) of S. 468 the offender is assured that there would be no prosecution against him but that assurance is defeasible on the prosecution giving a reasonable explanation for the delay occasioned. Equally the cognizance taken is nullified due to non-explanation of the delay or the Court finding it not expedient to take cognizance despite the failure to explain the delay. In construing the delay it is not necessary to meticulously explain every day's delay but may be construed liberally to advance substantial justice when there is no wanton negligence, deliberate inaction or bona fides in pursuing the prosecution. How the discretion has to be exercised is left to the Magistrate concerned depending on the facts and circumstances of each case. It is open to the accused to place the material in regard to want of bona fides or diligence in pursuing the prosecution. When the Court is condoning the delay, by necessary inference, it is interfering with the right of the accused assuring him of the bar of limitation. Therefore the Court has to be circumspect to put harmonious interpretation of the relevant provisions and has to consider the facts and circumstances in each case and has to exercise the discretion reasonably assigning reasons therefor.
14. The next question is whether the decision of the Division Bench in Khasim Baig's case (1979) 2 APLJ (H.C.) 398 (supra) requires reconsideration, as doubted by our learned brother, we may state that out learned brother while making the reference, did not give any reasons of his own on what grounds the decision requires reconsideration, but when it has been referred to the Division Bench, we have to go into that question. Before considering that decision, it is necessary to State that in that case though the prosecution was laid for a major offence, a minor offence has been established. But by that date the limitation prescribed for the minor offence expired by operation of sub-section (2) S. 468 of the Code. The question therein raised was whether the delay could be ignored by the Court since cognizance was already taken and whether the accused is entitled to an opportunity thereof. While considering that question, the Division Bench has held that the accused is entitled to raise the question of limitation and the Court has to go into that question and to consider whether the delay has been properly explained. Subseqently, their Lordships of the Supreme Court in State of Punjab v. Sarwan Singh (supra) had also an occasion to consider the same point. In that case, the offence charged was under S. 408, IPC but the accused was convicted for a lesser offence under S. 406, IPC and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/-. On appeal, the Punjab & Haryana High Court allowed the appeal holding that the offence under S. 406 IPC is clearly barred by limitation. The offence of embezzlement was committed on 22-8-1972 and it was detected on 5-1-1973. Charge-sheet was laid on 5-1-1975. Under those circumstances, their Lordships have held that the prosecution was clearly barred by limitation even for the minor offence. This decision also was considered by the latter Division Bench decision in K. Hanumantha Rao v. K. Narasimha Rao (1982 Cri LJ 734) (Andh Pra) (supra) and it was held that though the charge sheet was laid for a major offence, during the trial when the minor offence was made out, even in respect thereof the limitation prescribed under sub-section (2) of S. 468 of the Code applies and the Court has to give an opportunity to the accused and then find out whether the prosecution has given satisfactory explanation for the delay for the minor offence and the Court has to exercise judicious discretion under S. 473 of the Code. In this view, we hold that the decision rendered in Khasim Baig's case (1979 (2) APLJ (H.C.) 398) (supra) does not require reconsideration.
15. The next question is whether the offence under S. 12(1) of the Act is a continuing offence Sri. Bali Reddy as well as Sri. M. S. Prasad, learned counsel for the respondent Committee, relied upon the decision in Secretary Agricultural Market Committee, Valasa v. S.V.G. Oil Mills (1983) 2 APLJ (H.C.) 385 : (1984 Cri 503) (supra) and Sri. Prasad contended that this Court has held that the offence under S. 23(1) of the Act is a continuing offence and as there is no period of limitation the prosecution is not barred. In order to appreciate this contention, it is necessary to consider the facts therein. In that case the offence complained of was failure to obtain licence as required under S. 7 of the Act and the respondent continued to trade in the notified agricultural produce. While considering that question, one of us (K. Ramaswamy, J.) held in para 18 thus :
"As stated earlier, S. 7 employs negative language declaring that no person shall carry on purchase or sale of any notified agricultural produce, etc. except and in accordance with the terms and conditions of the licence issued under R. 50. The failure to obtain the licence and continuing to purchase or sell by a person without obtaining a licence every day thereafter shall remain to be a continuing offence punishable under S. 472 of the Code (which) envisages thus :
"In the case of a continuing offence, a fresh period of limitation shall begin to run at every moments of the time during which the offence continues."
The concept of "continuing offence" is a vexed question confronted the Courts time and again. If the contravention complained of is complete in itself though the consequent result therefrom may continue, the offence is complete and is not a continuing offence. The expression "continuing offence" means that if an act or omission constituting an offence continues from day to day then, fresh offence is committed every day on which the act or omission is repreated, recurred or continued. A continuing wrong or a continuing offence is nothing but a breach of a duty enjoined by a statute or an act of which itself is a continuing one. The non-performance of the duty from day to day is a continuing wrong. It is the very essence of a continuing wrong, a source of injury frequented every day which make the person doing it liable for the act or omission complained of. The offence may be committed by a positive act prohibited by law or by the omission to do that which the law makes it obligatory on the emphasis supplied - part of the person to do on pain of punishment. So far as the first is concerned, there can be no doubt that an offence is committed at every time when the positive act is repeated. In the latter case, it makes no difference so long as the law expects the door of the act to fulfil an obligation cast under the Act. Consequently every day when that omission is not rectified or perpetrated by the performance of the negative duty, an offence is committed. No doubt, technically every moment's omission is punishable as a separate offence. To continue means to remain in existence not to cease. Therefore, if the omission continues de die in diem then fresh offence is committed on every every day on which the omission to obtain licence and continuing to purchase or sale of the notified agricultural produce, etc., within the notified market area is continued. Thus the continued contravention of transacting the sale or purchase without a valid licence issued under R. 50 is a continuing offence de die in diem."
16. A reading of S. 7 clearly shows that a person acquires a right to do trade in the notified agricultural produce only on obtaining a licence and doing trade without licence is an offence and its continuance shall also be a continuing offence because every day and every moment he continues to contravene S. 7 and therefore this Court has held that it is a continuing offence. Though the offences under S. 7 and S. 12(1) were clubbed in S. 23 of the Act, their field of operation is distinct and separate. Section 23(1) reads :
"Whoever contravenes the provisions of S. 7 or fails to pay the fees levied under sub-section (1), S. 12, shall be punishable with fine which may extend to five hundred rupees, and in the case of a continuing contravention with a further fine which may extend to one hundred rupees for every day during which the contravention is continued after conviction therefor.
17. A reading of this provision would show that the failure to pay market fee levied under sub-section (1) of S. 12 is an offence. In the case of continuing contravention, power is given to the Magistrate to impose further fine. The immediate question is, whether failure to pay the market fee is a continuing offence. This question directly arose in State of Bihar v. Deokaran . Therein the question was whether the failure to furnish the returns under Mining Act was a continuing offence. There also the failure thereof was prescribed to be an offence punishable with as a punishment with fine. Bar of limitation of six months was created. It was contended that it is a continuing offence. In that context, their Lordships of the Supreme Court, speaking through Shelat, J. held in para 4 :
"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 21-1-1960. 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."
18. The continuing offence was explained in para 5 and the case law in that regard was considered, and it was held that the failure to file annual returns is not a continuing offence. A Division Bench of the Bombay High Court in State v. Bhiwandiwala also considered this question and held that failure to apply for registration is not a continuing offence. But if the respondent without applying for licence continues to conduct his business, it amounts to a continuing offence. In that view it held that the latter action is a continuing offence and the former is not a continuing offence.
19. In E.PF. Organization v. Shalimar Biscuits (1979) 1 APLJ (H.C.) 173 one of us (K. Punnayya, J.) had to consider the case whether the failure on the part of the employer under the Employees Provident Fund Scheme and the Family Pension Fund Act (19 of 1952) to deposit the employer's share of the provident fund is a continuing offence. It was contended therein that by operation of sub-section (2) of S. 468 of the Code, the prosecution was barred by limitation. It was also contended that failure to deposit the employer's share of the provident fund is a continuing offence. While considering that question it was held that there is nothing in the Act or the Scheme to show that non-payment continued to be a recurring offence with each passing day. If the Legislature had intended that defaults committed by employers would be continuing offences then that would have been clearly indicated in the Act or the Schemes. In that view it was held that the prosecution was barred by limitation.
20. In Tripura Sundari v. Vijayawada Municipality 1982 Mad LJ (Cri) 448 : (1982 Cri LJ NOC 180) (Andh Pra) our learned brother, Chennakesav Reddi, J. was called upon to consider the question whether failure to obtain licence for installation of electric motor was continuing offence. While considering that question, it was held that establishment of an electric motor without prior permission is completed as soon as the installation was made and therefore though the contravention continues, it is not a continuing contravention and the limitation beings to run on the date when the installation was made or the workshop established.
21. Under sub-section (2) of S. 12, the market fee shall be paid by the purchaser on the notified agricultural produce, etc. In case the trader himself if is a purchaser he too has to pay the same.
22. It is well settled that conditions of the licence are statutory, being Part of the statutory rules and the trader is enjoined to abide by law. Under R. 65 of the Rules, every commission agent shall effect payment in accordance with the tak patti (sale slip). It is common knowledge that tak patti contains various items including the market fee. Under condition 3 of Form VIII of the Licence or renewal, the licensee (trader) shall submit to the Committee not later than 25th of every month true and correct information regarding purchase, sale and storage of agricultural produce produced by him in the preceding month to enable the market committee to determine the fee payable by him and collect the said fee under S. 12 of the Act, due on such transaction as per the provisions of the Act, Rules, Bye-laws Condition 5 enjoins the licencee that he shall pay and also facilitate collection of the dues to the market committee. Under Condition No. 8, the licensee where he himself is the owner of the notified agricultural produce, etc., he shall collect the market fee from the purchaser and remit the same to the market committee. The failure to pay when demanded constitutes an offence. The limitation begins to run from the date of failure to pay the market fee. As soon as he makes default in payment, he commits the offence and the offence is complete on his failure to pay. Though he persist in non-payment, the contravention does not continue to be a continuing contravention but comes to a terminus with the due date. In case trader was convicted under S. 23 read with S. 12(1) and thereafter continues to disobey, it constitutes a continuing contravention and thereby becomes continuing offence. Under these circumstances, in respect of the offences created under sub-section (1) of S. 12, it is not a continuing offence but the offence is complete as soon as he fails to pay the market fee though the consequence subsists till payment is made. Accordingly we hold that the offence under S. 12(1) is not a continuing offence.
23. The next question is whether the respondent had given any explanation for the delay occasioned. It is no doubt true that the petitioner had invoked the jurisdiction of this Court by filing a writ petition, obtained stay of collection and ultimately the writ petition was dismissed. Thereafter, action in the civil suit was laid in a representative capacity and the Committee was prevented from collecting. That suit was also dismissed. After the demand, yet another attempt was made but proved to be abortive. Thereafter, on 15-12-1976, notice was given for prosecution and in Ex. P-5 reply, the petitioner requested extension of time for payment till the end of January 1977. The resolution was passed authorising the Secretary to lay prosecution of 31-1-1977. Therefore, on the facts in this case, the limitation begins to run from 1-2-1977, when the petitioner failed to pay the market fee as promised, on 31-1-1977. But the prosecution was laid on 30-1-1978. i.e., one year thereafter. Under sub-section (2)(a) of S. 468 of the Code, the limitation prescribed is six months. It expired by July 31, 1977. Therefore the Court has been given power under S. 473 of the Code to take cognizance of the offence. The Courts below held that proper explanation for the delay was given and they were satisfied with the explanation. Thereby they exercised the power under the first part of S. 473 of the Code. From the evidence on record it is clear that P.W. 1, the Secretary of the Market Committee did not give any explanation for the delay between August 1, 1977 to January 30, 1978. The explanation offered is only for the period anterior to the passing of the resolution. Therefore, the Courts below committed error of law in holding that the respondent has given satisfactory explanation for the delay. It is case of no explanation at all. Realising this difficulty, Mr. Prasad, has contended that this Court can exercise the power, having all the powers of the trial Court, under the latter clause of S. 473 of the Code viz. "that is necessary to take cognizance in the interests of justice." The immediate question is whether we would be justified to exercise this power.
24. It is true that the Act is a fiscal enactment like Sales Tax Act, Income-tax Act, etc., the object being not only to eliminate middlemen but the ameliorate the economic conditions of the grower by facilitating remunerative price to the produce and also to provide speedy, inexpensive and efficacious remedies of collection of the market fee so as to enable the market committees to spend the fee collected for providing amenities required under the Act S. 26(2) empowers the Committee to recover all sums due to it in the same manner as arresrs of land revenue. It is already noticed that under S. 23(2), in addition to the imposition of fine, the Magistrate is also empowered to recover summarily the fee payable under S. 7 or under sub-section (1) of S. 12 and costs and to pay over to the market committee. These two remedies are in addition to the ordinary right of civil action. Under R. 70, the trader, commission agent etc., are required to maintain accounts in such manner and submit such reports and returns to such authority as may be specified by the market committee in that behalf. The failure thereof entails under sub-r. (2) thereof with a penal consequence R. 75 provides check posts to verify the payment of the prescribed fee and the collection in respect of such notified agricultural produce, etc. R. 76 provides penalty for evasion. We have already noticed the provisions under S. 12(2); conditions of licence, tak pattis, etc.
25. A conspectus of the above provisions tirade the trader with inescapable obligation to pay the market fee to the market committee and evasion of it is penalised. The limitation prescribed under Chap XXXVI of the Code relates not only in respect of the offences under the I.P.C. but also of the special enactment. The scope of obliteration of the evidence in respect of the offences under the Penal Code may be greater than in the cases where there would be documentary evidence adumbrated under the relevant provisions of the Act, Rules and Bye-laws.
26. Under the first part of S. 473 of the Code, it is the duty of the prosecution to explain the delay to the satisfaction of the Magistrate. But under the latter part, power to given to the Court, despite non-explanation of the delay. On the facts and circumstances and in the interests of justice, if the Court is of opinion that the cognizance may be taken, it could exercise that power. This is undoubtedly a discretionary power. Though it is prima facie unfettered, Legislature gave large leeway to meet the desired result of rendering effectual and substantial justice meeting divergent situations. Yet it is subject to an implied limitation to the exercise of the said power in good faith for the purpose for which it is granted after taking into consideration all the relevant facts and circumstances. It must not be exercised arbitrarily or capriciously. It is not glossed with private opinion but should be according to rules, reason and justice. In this context the contention of Mr. Bali Reddy is that the second clause of S. 473 of the Code could be invoked only when there is halting gap of explanation and sufficiency thereof to condone the delay. The exercise of the power should not be fettered in such a narrow circumference. This gamut of the operation of the second part of S. 473 could not be circumscribed within a limited ambit or field. The Parliament appears to have given this power with definite purpose to meet varied situations. While considering S. 18. Gaming Act, 1845. Viscound Simon in Hill v. Williana Hill (Parklane) Ltd. (1949) A.C. 530 at 546 & 547 (HL) held that "when the legislature enacts a particular phrase in a statute, the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should. If possible be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out .... The presumption, therefore, is that the second limb of S. 18 is not coincident with the first limb." It is equally settled law that in interpretation of the provisions of a statute the Court should endeavour to read together all the provisions harmoniously to give effect to every section, clause or word so as to give "force and effect" to it in implementation thereof and in the process of construction it would not be construed so as to render any provision redundant or tautologous surplusage. Keeping these settled principles in view and the facts and circumstances in this case, it must be held that the two clause are independent to operate in different fields and cannot be caged in a strait jacket formula. In a given case it may bridge the gap as contended by Sri. Bali Reddy. But where the explanation is offered and found to be acceptable, then there is no need to invoke the latter clause of S. 473. But where the explanation offered and found to be unacceptable and yet on the facts and circumstances the interests of justice requires the Court to take cognizance of the offence despite the bar of limitation, the Court could exercise the power. The paramountcy is always the interest of justice. In such situation, the latter clause would be brought into play. To invoke that power, as stated earlier, the Court has to exercise its discretion bona fide, reasonably but no arbitrarily and capriciously, keeping in view the object of the relevant Act, the purpose for which the power is given under the Act, Rules etc., and the relevant facts and circumstances of each case.
27. As stated earlier, the object of the Act is fiscal enactment and the trader is a trustee de son tort, the right to collection is mainly dependent upon the documentary evidence and the scope for the fading away of the memory is minimal the offence is a statutory offence mens rea is not an essential ingredient as held by one of us (K. Ramaswamy, J) in T. Prakash Rao v. Agricultural Market Committee, Tenali (1984) 1 A.P. LJ (HC) 180 : (AIR 1985 NOC 7) : (at 188 para 31) and of the Supreme Court in P. K. Tejali v. M. R. Dange and State of Gujarat v. Kansara Manilal . The statute gave power to the Magistrate to collect the market fee and licence fee and to pay over to the Committee thereby the Legislature confided the power in the Court to exercise the power in appropriate cases as an efficacious and inexpensive process to achieve the public purpose. The Court would in appropriate cases take these and other relevant facts and circumstances and the Court would exercise the power the take cognizance of the offence, despite the fact that the limitation prescribed under S. 473 of the Code expired by efflux of time under sub-section (2)(a) of S. 468 of the Code.
28. But the question is whether this Court would exercise that power. Admittedly the Courts below did not exercise the power under latter clause of S. 473 of the Code. Normally, where there is no occasion for the prejudice to the accused and the justice requires, this Court may recourse to the latter clause of S. 473. But the accused has a right to assail the reasoning given by the trial Court in an appeal or revision. If the power is exercised for the first time we do not know what would be the reasons the Courts below would have given and then the petitioner would be deprived of a valuable right. Therefore, though we have the power, it is not safe to invoke the power under the latter clause of S. 473 for the first time in the revisional jurisdiction by this Court. On the facts and circumstances though we are satisfied that the petitioner is facilitated to have unjust enrichment, yet as a sentinal to maintain rule of law, it is the duty of this Court to interpret the law and to leave to the other organs to adopt the appropriate course open under law to effectuate the provisions of the Act. Under these circumstances we hold that the respondent failed to explain the delay and on that ground the prosecution is barred by limitation. Accordingly, the Criminal Revision Case is allowed and the conviction and the directions are set aside.
29. Petition allowed.