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Case Number

Criminal Appeal No. 498 of 1951 with Criminal Appeals Nos. 499, 500, 501, 503, 504, 505 and 506 of 1951

Attorney(S)

State of B.G Thakor, Additional Assistant Government Pleader, for the State.
K.J Khandalawalla with Messrs Haridas and Co., for the accused.

Judges

Mr. Bhagwati
Mr. Vyas, JJ.

Acts

sections of the City of Bombay Municipal Act III of 1888
s. 123(7) or 118(4) of the Bombay City Municipalities Act
s. 471 of the City of Bombay Municipal Act, III of 1888,
s. 471(b) of the City of Bombay Municipal Act, 1888,
s. 507(2) of the City of Bombay Municipal Act, 1888,
s. 158 of the English Public Health Act of 1875,

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Smart Summary

Structured Summary of the Opinion (Bhagwati, J. and Vyas, J.)

Factual and Procedural Background

These appeals arise from eight criminal matters in which the learned Presidency Magistrate, 8th Court, Girgaum, Bombay, had acquitted eight accused (tenants). The accused were charged under s. 471 of the City of Bombay Municipal Act, 1888, for failing to afford the owner of premises facilities as ordered by the Chief Judge of the Court of Small Causes (under s. 507 of the Act), thereby contravening s. 507(3).

Procedural timeline (as stated in the opinion):

The Municipality issued a requisition under s. 354 to the landlord to remove structures that were in ruins or likely to fall.
The landlord applied to the Chief Judge of the Court of Small Causes for an order under s. 507; on March 16, 1950 the Chief Judge made such an order requiring the tenants to hand over vacant possession on or before April 16, 1950.
The tenants did not vacate, preventing the landlord from complying with the municipal requisition; the Municipality treated this default as a continuing offence and, taking July 3, 1950 as a date of commission, filed complaints (the appeals record that prosecutions were launched on September 19, 1950).
The learned Presidency Magistrate held the prosecutions time-barred under s. 514(c) (three months after the commission of the offence), concluding the relevant date of commission was April 16, 1950 (and thus acquitted the accused).
The Government of Bombay appealed against those orders of acquittal.

Legal Issues Presented

Whether the failure of the tenants to afford reasonable facilities to the owner in compliance with the Chief Judge's order (s. 507(3)) constituted a continuing offence or an offence complete at a single point in time.
If the offence is continuing, from what point in time does the three-month limitation period under s. 514(c) of the City of Bombay Municipal Act run — from the first commission of the offence or from any date during which the continuing offence persisted (e.g., the date alleged by the Municipality such as July 3, 1950)?
Whether the learned Presidency Magistrate was correct in holding the prosecutions time-barred and thereby acquitting the accused, or whether those conclusions should be set aside and the cases remanded for disposal according to law.

Arguments of the Parties

Appellant (State of Bombay / Municipality)

Contended that the tenants' refusal to comply with the Chief Judge's order was a continuing offence and therefore limitation should be calculated with regard to the dates during which the offence continued.
Argued that the Municipality's choice of July 3, 1950 (and later dates) as dates of commission was permissible because the default was continuing and the prosecution launched on September 19, 1950 was within the three-month period measured against those continuing dates.
Relied on the decision in State v. Babu Gulam Mohamed, which held that where refusal continued beyond the date fixed by the Chief Judge a continuing offence existed and the prosecution was properly within time.

Respondents (Tenants / Defence)

Argued that the offence was complete on the expiry of the eight-day period fixed by the Chief Judge (i.e., the date fixed for vacation, April 16, 1950, and following eight days), and that the limitation period under s. 514(c) ran from that first commission; therefore complaints filed on September 19, 1950 were time-barred.
Sought to distinguish the decision in State v. Babu Gulam Mohamed and urged reliance on appellate decisions including Emperor v. Bechardas (and references to Narain Chandra Chatterjee v. Corporation of Calcutta and Emperor v. Chhaganlal), which the respondents read as supporting the proposition that limitation runs from the date when the offence was first committed.
Pressed for a reference to a full bench for clarification of the law regarding limitation and continuing offences.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Babu Gulam Mohamed	Held that where a tenant refused to comply with an order of the Chief Judge (to vacate), the refusal continued and the offence was continuing; limitation should be calculated with reference to the period during which the offence continued (so a prosecution filed after the first date but within three months of a continuing date could be within time).	The court accepted this ratio as dispositive and followed it: it concluded the offence in the present appeals was continuing and that prosecutions launched were within time. The court refused to differ from or refer the decision to a full bench.
Emperor v. Bechardas	Two points: (1) whether failure to remove a building after conviction was a "continuing contravention" (held not to be), and (2) whether limitation for a continuing offence runs from the time the offence is first committed (Mirza and Broomfield JJ. expressed the view that limitation runs from the first commission).	The court considered this authority but rejected importing the word "first" into s. 514(c)'s phrase "after the commission of such offence". The opinion critiques the conclusion that limitation must always run from the first commission and distinguishes facts where daily fresh offences are clearly committed.
Emperor v. Karsandas Govindji	Beaumont C.J. observed that the head-note in Emperor v. Bechardas (stating limitation runs from first commission) was misleading, and emphasized the distinction between an act which constitutes an offence once and for all and acts which constitute fresh offences on each day the prohibited activity continues (example: working a factory without permission results in daily offences).	The court relied on these observations to show that where an offence produces a fresh offence each day (as here, daily failure to comply), limitation can be reckoned with reference to those successive offences; this supported affirming State v. Babu Gulam Mohamed and holding the present prosecutions were within time.
Narain Chandra Chatterjee v. Corporation of Calcutta	Jenkins C.J. observed that if a by-law had been framed differently, the starting point for limitation might be the time when the offence was first committed; he guarded against being taken to accept that view because the point was not decided.	The court noted this case to show that earlier judges had been cautious and had not finally decided the point whether limitation must always be computed from first commission. The present court treated these remarks as not decisive.
Emperor v. Chhaganlal	Fawcett J. (in discussing Narain Chandra Chatterjee) was inclined to the view that limitation might run from the date when the offence was first committed, but the point was not decided on the merits in that case.	The court recorded that these opinions existed but emphasized that neither Jenkins C.J. nor Fawcett J. decided the point and therefore they did not control the present decision.
Marshall v. Smith (English authorities) and s. 158 Public Health Act 1875 (as cited in Welsh & Son v. West Ham Corporation)	Reference to English provision (s. 158) enacted to make existence of a work or building a continuing offence but subject to a one-year limit measured from the day the offence was committed; used to illustrate one judicial approach to the meaning of "continuing offence" and the computation of limitation.	The opinion reproduces Mr. Justice Broomfield's reliance on this material as background to the argument that limitation runs from first commission; the court nonetheless rejected the necessity of reading "first" into s. 514(c) in the present statutory context and distinguished the English provision.
Welsh & Son v. West Ham Corporation	Used as the source where the English s.158 was quoted in context (see reference above).	Cited in the discussion of English approaches to continuing offences and limitation; the present court considered but did not adopt the approach of reading a "first commission" limitation rule into s. 514(c).

Court's Reasoning and Analysis

The court's legal analysis proceeded in interconnected steps, focusing on the text of the relevant statutory provisions and on prior authorities:

Statutory framework and character of the offence:
The court examined s. 507, s. 471, s. 472 and s. 514 of the City of Bombay Municipal Act, 1888 (as set out in the opinion).

Section 507 gives the Chief Judge power to order an occupier to afford reasonable facilities to an owner; it provides that after eight days from such order the occupier is incumbent to afford the facilities and that continued refusal absolves the owner from liability. The court observed that by the very terms of s. 507 a continuous refusal by the occupier is contemplated and that “in the nature of it the offence, if any, which would be committed by the occupier would be a continuing offence.”
Definition and punishment of the offence:
The court examined s. 471 (offence for failure to comply) and s. 472 (punishment for continuing offences).

Section 471 prescribes the offence of failing to comply with requisitions; the appendix table explicitly treats non-compliance with s. 507(3) as an offence punishable by fine. Section 472 contemplates daily fines for continuing contraventions and thereby recognizes the possibility of day-by-day continuation of an offence.
Limitation provision and competing interpretations:
Section 514(c) prescribes prosecution “within three months next after the commission of such offence.”

The central dispute concerned whether “the commission of such offence” in s. 514(c) means (a) the first commission (so that limitation runs from that single point), or (b) any date during the continuance of a continuing offence (so that limitation may be reckoned with reference to a date when the continuing offence was ongoing and thus remain within time).
Precedent analysis and choice of ratio:
The court held State v. Babu Gulam Mohamed to be directly on point and correct: where an occupier refused to comply with the Chief Judge's order and that refusal continued, the offence was continuing and limitation should be calculated with reference to the period during which the offence continued (so a prosecution brought within three months of a date on which the continuing offence persisted was within time).

The court considered Emperor v. Bechardas (where Mirza and Broomfield JJ. had adopted the “first commission” view) but rejected the textual innovation of inserting the word “first” into s. 514(c); the court explained that the phrase “next after the commission of such offence” was not properly read as “next after the first commission of such offence.”

At the same time, the court acknowledged that in some circumstances daily fresh offences are clearly committed (e.g., working a factory each day without permission), in which case each day of continuance constitutes a fresh offence. The court used Emperor v. Karsandas Govindji (Beaumont C.J.) to illustrate and support the distinction between a single offence and a sequence of daily offences.
Application of law to the facts:
The court concluded that the tenants’ refusal to afford facilities, as ordered by the Chief Judge (date to vacate April 16, 1950), was a continuing offence: it began on the date fixed (or shortly thereafter—April 24th is noted as the expiry of eight days in one passage) and continued thereafter. Therefore, the charge framed as alleging commission on July 3, 1950 related to an offence that was still continuing on that date and was properly framed.

Consequently, prosecutions launched thereafter (the complaints) were within the three-month period prescribed by s. 514(c) as properly interpreted in the context of continuing offences of this nature.
Disposition and remedy:
The court held that the learned Presidency Magistrate erred in accepting the defense argument that the prosecutions were time-barred; the appeals were allowed and the cases remanded to the Magistrate for disposal according to law, with observations recorded about the continuing nature of the offence and limitation.

Holding and Implications

Holding: APPEALS ALLOWED; the Magistrate's orders of acquittal are set aside and the cases are remanded to the learned Presidency Magistrate for disposal according to law.

Direct implications for the parties:

The prosecutions against the eight accused are not time-barred on the ground relied upon by the learned Magistrate; the matters must be reheard/heard further consistent with the court's observations.
The learned Magistrate's acceptance of the plea that the limitation ran from the first commission and thereby barred the complaints was held to be incorrect in law in these circumstances.

Broader legal implications (as stated in the opinion):

The court endorsed the ratio in State v. Babu Gulam Mohamed that where the statutory scheme contemplates a continuing refusal (as under s. 507) the offence is continuing and limitation may be computed with reference to dates during which the offence continued.
The court declined to adopt the broad proposition (ascribed to some members of the appellate bench in Emperor v. Bechardas) that limitation for every continuing offence must be computed only from the first commission; instead, it analysed the statutory language and distinctions in prior authorities and applied the continuing-offence approach appropriate to the statutory context.
The court expressly declined to refer the matter to a full bench and found no reason to differ from the State v. Babu Gulam Mohamed decision.

The opinion does not purport to lay down a universal rule for all continuing offences; rather, it interprets the statutory provisions in the context of the City of Bombay Municipal Act and the particular statutory offences under consideration.

Disposition recorded in the opinion: "Appeals allowed: cases remanded."

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The State Of Bombay v. Messrs Devraj Tulsi (Original Accused)

Bhagwati, J.:—

These are eight criminal appeals against the orders passed by the learned Presidency Magistrate, 8th Court, Girgaum, Bombay, acquitting the accused in each case. The eight accused were charged with having committed offences punishable under s. 471 of the City of Bombay Municipal Act, III of 1888, in so far as they failed to afford to the owner of the premises facilities as ordered by the Chief Judge of the Court of Small Causes for enabling the landlord to comply with municipal requisitions under s. 354 of the Act and thereby contravened s. 507(3) of the Act. The eight accused were the tenants of the owner of the building and the Municipality had issued to the landlord a requisition under s. 354 of the Act to remove the structures etc. which were in ruins or likely to fall. The tenants apparently did not hand over possession of the premises to the landlord, with the result that the landlord was unable to comply with the requisition of the Municipality. He, therefore, approached the Chief Judge of the Court of Small Causes for the requisite order under s. 507 of the Act and the Chief Judge made an order on March 16, 1950, ordering each of the accused to hand over to the landlord vacant possession of the premises on or before April 16, 1950. This again the tenants would not do, with the result that the tenants were guilty of having contravened the orders under s. 507(3) of the Act. This default on the part of the tenants was taken by the Municipality to be a continuing offence, and in so far as on July 3, 1950, and thereafter the default continued, the Municipality took July 3, 1950, as the date of the commission of the offence and filed the complaints against each of the accused under s. 471 of the Act in the terms noted above. The learned Presidency Magistrate before whom all these eight cases came for hearing was of the opinion that the prosecutions were barred under s. 514(c) of the Act which lays down that:

“No person shall be liable to punishment for any offence made punishable by this Act, unless complaint of such offence is made before a Presidency Magistrate within the time hereinafter prescribed in that behalf, namely:—

(c) if the offence be against any other provision of this Act, within three months next after the commission of such offence.”

He was of the opinion that the date given by the Chief Judge of the Court of Small Causes to vacate was April 16, 1950, and the prosecutions were barred, having been filed more than three months after the commission of the offence, the date of the commission, according to him, being April 16, 1950. He rejected the plea which was urged before him by the learned advocate for the Municipality that the offences committed by the accused were continuing offences, that therefore the period of limitation did not commence from April 16, 1950, and that the offence was just as well committed on July 3, 1950, as on any other date, and therefore the prosecutions which were launched on September 19, 1950, were well within time. Accepting the plea of the learned advocate for the defence, he, therefore, acquitted the accused in each case. These criminal appeals have been filed by the Government of Bombay against these orders of acquittal.

The point which arises before us is covered by the decision of Mr. Justice Rajadhyaksha and Mr. Justice Dixit in State v. Babu Gulam Mohamed. The case there was, so far as the point of limitation was concerned, on all fours with the case before us. In that case a requisition had been made by the Municipality on the landlord and on an application made by the landlord to the Chief Judge of the Court of Small Causes an order had been made on August 14, 1950, directing the applicant and the other tenants to afford all reasonable facilities to the owner of the premises for complying with the requisition contained in the Municipal notice and August 21, 1950, was fixed as the date within which the tenants had to vacate in order to enable the landlord to carry out the requisition. The prosecution was, however, launched on November 23, 1950, and the question that arose for consideration of their Lordships was whether the prosecution was beyond time having regard to the provisions of s. 507(3) of the Act. The learned Judges there came to the conclusion that if limitation commenced on August 22, 1950, the effect of s. 514 read with s. 523 of the Act was that the prosecution was obviously time-barred. They however proceeded to consider an argument which was advanced before them that the offence was a continuing offence, that the offence consisted in the refusal of the tenant in complying with the order made by the learned Chief Judge and the order made by the learned Chief Judge was that the tenant, viz., the present applicant, should vacate the premises and that therefore there was after the period of eight days a refusal on the part of the applicant to vacate the premises and the refusal continued because the order was not complied with. The learned Judges, therefore, held that there was as much on August 22, 1950, a refusal on the part of the applicant to vacate the premises as it was on August 23, 1950, and on the following days and the prosecution was filed by the Municipality on November 23, 1950, and it was clear therefore that the prosecution was well within time. The learned Judges, therefore, held that the offence being a continuing offence, the period of three months within which the prosecution should have been launched was to be calculated with reference to the date or dates during which the offence was continuing.

This ratio without anything more would have been determinative of the appeals before us. The learned advocates, however, who appeared for the respondents in the appeals before us sought to distinguish this case and also attempted to argue that the ratio of the decision of Mr. Justice Rajadhyaksha and Mr. Justice Dixit was wrong, particularly, having regard to the two decisions of our appellate Court reported in Emperor v. Bechardas, in and Emperor v. Karsandas Govindji. We, therefore, listened to the arguments which were advanced before us, which, if accepted, would either make us differ from the ratio of the decision of Mr. Justice Rajadhyaksha and Mr. Justice Dixit or refer these criminal appeals to a full bench.

The relevant sections of the City of Bombay Municipal Act III of 1888 which fall to be considered by us are as under: Section 507 gives the remedy to the owner of building or land against the occupier who prevents his complying with any provisions of the Act, and it lays down that if the owner of any building or land is prevented by the occupier thereof from complying with any provision of the Act or of any regulation or by-law made thereunder, the owner may apply to the Chief Judge of the Small Cause Court and the Chief Judge on receipt of any such application may make a written order requiring the occupier of the building or land to afford all reasonable facilities to the owner for complying with the said provision or requisition. It further provides that after eight days from the date of any such order it shall be incumbent on the said occupier to afford all such reasonable facilities to the owner for the purpose aforesaid as shall be prescribed in the said order, and in the event of his continued refusal so to do, the owner shall be discharged, during the continuance of such refusal, from any liability which he would otherwise incur by reason of his failure to comply with the said provision or requisition. It may be noted that the default of the occupier with which the Chief Judge of the Small Causes Court would be concerned in this section would be the default on his part to afford all reasonable facilities to the owner for complying with the provision or requisition of the Municipality. If within the time which is prescribed by the Chief Judge in this behalf the occupier affords such reasonable facilities, the terms of the order would be complied with and there would be no default on his part. If, however, he, the occupier, refuses so to do, and continues to do so, the owner is absolved from all liability by reason of the non-compliance by him of the provision or requisition made upon him by the Municipality. The section, therefore, in terms provides for the result of a continued refusal by the occupier to afford all reasonable facilities to the owner for the purpose therein mentioned and absolves the owner from any liability which he would otherwise incur during the continuance of such refusal. By the very terms of that section therefore a continuous refusal by the occupier to afford all reasonable facilities to the owner is contemplated and in the nature of it the offence, if any, which would be committed by the occupier would be a continuing offence. It would not be merely the non-compliance on the date or dates specified. It would be non-compliance which would, though it commenced on the date or dates specified, continue all throughout the period of such refusal by him, and it would certainly be a continuing offence committed by him.

That this non-compliance is an offence is provided by s. 471 of the Act which says that:

“Whoever……

(b) fails to comply with any requisition lawfully made upon him under any of the said sections, sub-sections, or clauses,

shall be punished, for each such offence, with fine which may extend to the amount mentioned in that behalf in the third column of the said table.”

In the table we find the last offence provided, viz. the non-compliance of the terms of any order passed under s. 507(3), the subject being defined as the “occupier of building or land to afford owner facilities for complying with provisions of this Act, etc., after eight days from issue of order by Chief Judge of Small Causes Court”, the fine which may be imposed being prescribed as Rs. 200. This is the offence as laid down in s. 471 of the Act. In so far, however, as some of the offences which are laid down in this section may as well be continuing offences, a provision is further made in s. 472 providing for the punishment of such continuing offences and s. 472 lays down that:

“Whoever, after having been convicted of……

(b) failing to comply with any requisition lawfully made upon him under any of the said sections, sub-sections or clauses,

continues to contravene the said provision or to neglect to comply with the said requisition, or fails to remove or rectify any work or thing done in contravention of the said provision, as the case may be, shall be punished, for each day that he continues so to offend, with fine which may extend to the amount mentioned in that behalf in the third column of the said table.”

The table again has reference in the last item thereof to s. 507(3), the subject being the same as mentioned above the daily fine which may be imposed being Rs. 50. The last section which we need refer to in this connection is s. 514 which prescribes the period of limitation within which complaints of the offences punishable under the Act shall be entertained, and it lays down that:

(c) if the offence be against any other provision of this Act, within three months next after the commission of such offence.”

The argument which has been advanced before us is that the period of three months which is prescribed in s. 514 of the Act should be calculated from the point of time next after the commission of the offence. It has been strenuously urged before us that the moment the order made by the Chief Judge of the Small Causes Court is disobeyed the offence is complete. Once the offence is complete, it is committed. If the offence is committed, the period of three months next after the commission of the offence can only be calculated from the point of time when the offence is committed. The argument, therefore, which has been advanced before us is that on the expiration of the period of eight days from the order of the Chief Judge, Small Causes Court, or in any event after the expiration of eight days from April 16, 1950, i.e from April 24, 1950, the period of limitation commenced to run against the Municipality and the prosecutions which were launched in the appeals before us on September 19, 1950, were certainly beyond time. Reliance was placed in support of this argument on a decision of our appellate Court reached by a division bench constituted by Mr. Justice Mirza and Mr. Justice Broomfield in Emperor v. Bechardas. Two points were involved in the case before the learned Judges: (1) whether failure to remove a building in respect of which a person has been convicted under s. 123(7) or 118(4) of the Bombay City Municipalities Act is not a “continuing contravention” within the meaning of those sections and (2) whether limitation for a prosecution for a continuing offence runs from the time when the offence is first committed. The learned Judges held that failure to remove the building under those circumstances was not a continuing contravention. But in so far as the point of limitation was concerned, they were of the opinion that limitation for a prosecution for a continuing offence runs from the time when the offence is first committed. The grounds given by Mr. Justice Broomfield at page 781 are clear and categoric in this behalf, and he observes:

“In this connection I may refer again to s. 158 of the English Public Health Act of 1875, which was enacted in consequence of the decision in Marshall v. Smith. I have quoted the section already; it is given in Welsh & Son v. West Ham Corporation. It seems to me worth noting that, though this provision was expressly enacted in order to make the mere existence of a work or building a continuing offence, it was also enacted at the same time that a penalty should not be incurred in respect thereof after the expiration of one year from the day when the offence was committed or the by-law was broken. I do not think it can be doubted that those words mean that time runs from the first commission of the offence, and does not begin to run from day to day as long as the work or building is in existence.”

The effect of this decision is that for the purpose of considering the starting point of limitation you have to consider the point of time which is co terminus with the first commission of the offence. Whereas s. 514(c) of the Act talks of the period of three months next after the commission of the offence, the learned Judges there were of the opinion that the words “next after the commission of the offence” should be read as meaning “next after the first commission of such offence.” With the utmost respect to the learned Judges, there was no warrant for introducing the words “the first” before “commission of such offence” and reading the section which was in express terms “within three months next after the commission of offence” as meaning “within three months next after the first commission of such offence.” The phrase “continuing offence” has been the source of a great confusion of thought. An offence is committed the moment certain ingredients or conditions are fulfilled. The terms of an order may not be complied with and the moment these terms are not complied with within the period prescribed in this behalf, there would certainly arise the commission of an offence by the offending party. He has failed to comply with the terms of the order and he has committed the offence. In those cases, however, where the offence is a continuing offence, the question that may arise for consideration of the Court would be whether it is the same offence which is being continued for all the time or whether at each period of time denoted by a second or an hour or a day or a week or a fortnight or a month or a year, fresh offences are committed one after the other. To my mind it is a misnomer to say that fresh offences are committed at each period of time when particularly the non-compliance of the order which constitutes the offence is the omission to do an act which has been ordered to be done. It may be that where a positive act is ordered to be done, a case or cases may arise where by reason of the breach of the terms of the order you may have commission of a series of offences from day to day, just as it happened in the case before Chief Justice Beaumont and Mr. Justice Wasoodew in Emperor v. Karsandas Govindji, where the offence which the accused was charged with having committed was working a factory contrary to the provisions of the order. For each day that the factory was working there was a breach of the terms of the order, and therefore it could be said in such a case that for each day that the factory was working, a distinct offence was committed. No offence would be committed if the factory was not working on a particular day, but in so far as the factory was working on any particular day in contravention of the order, a fresh offence would be committed. The learned Chief Justice there pointed out commenting on the decision of our appellate Court in Emperor v. Bechardas (p. 760):

“……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 recognised 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 s. 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 s. 514 is no bar to the prosecution.”

The learned Chief Justice therefore gave vent to the expression of his opinion to the effect following (p. 759):

“……the expression (continuing offence) has a well recognised 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.”

These remarks appear to throw some doubt on the position enunciated above in regard to the nature of the continuing offence. It is not necessary to comment any farther on these remarks except to observe that these remarks must be taken in the context in which they have been made and they do not necessarily militate against the conclusion which we have reached and the opinion which we have above expressed in regard to the connotation of the term “continuing offence”.

These are the only two cases which it is necessary to refer to out of the various cases which were cited at the bar. On a consideration of the whole position, therefore, we have come to the conclusion that the decision which was reached by the learned Judges Mr. Justice Rajadhyaksha and Mr. Justice Dixit in State v. Babu Gulam Mohamed was correct and there is no reason to differ from the same or to refer the same to a full bench as urged before us.

The result, therefore, is that even on July 3, 1950, which was the date mentioned as the date of the commission of the offences in the charges framed against the several accused, there was a continuing offence and the offence which had started on April 16, 1950, or in any event on April 24, 1950, was continuing and the charge as framed in respect of the offence which continued to be committed even on that date, July 3, 1950, was properly framed, that the prosecution which was launched in respect of the charge was well within time having regard to the provisions of s. 514(c) of the Act as we have interpreted above, and that the learned Presidency Magistrate was wrong when he accepted the pleas put forward before him by the learned advocates for the accused and acquitted them.

The result, therefore, will be that the criminal appeals will be allowed and the cases will be remanded to the learned Presidency Magistrate for disposal according to law, having regard to the observations which we have made above.

Vyas, J.:—There is no doubt that the offence in these cases under s. 471(b) of the City of Bombay Municipal Act, 1888, was a continuing offence. The gravamen of it lay in failing to comply with the requisition of the Chief Judge, Small Causes Court which was made by the Chief Judge under s. 507(2) of the City of Bombay Municipal Act, 1888, and therefore every day the respondents failed to comply with the requisition after April 16, 1950, which was the last date fixed by the Chief Judge for the vacating of the premises by the respondents, they committed a fresh offence under s. 471(b) of the Act above mentioned. The offence was committed first on April 16, 1950, and thereafter every day a fresh offence was committed by the respondents who persisted in refusing to comply with the Chief Judge's requisition issued by him under s. 507(2) of the Act. That being so a question at once arises as to what is the starting point of limitation for the purpose of s. 514(c) of the Act. Section 514(c) says:

“(c) if the offence be against any other provision of this Act, within three months next after the commission of such offence.”

This raises a question as to the point of time from which the period of three months should be counted. The learned Magistrate took the view that the starting point of limitation would be April 16, 1950, the date on which the offence under s. 471(b) of the City of Bombay Municipal Act, 1888, was committed, and held that the complaints which were filed on September 19, 1950, were time-barred. For the State of Bombay this finding is challenged.

Mr. Thakor appearing for the State of Bombay says that every day following April 16, 1950, would be a starting point for limitation, since the offence was first committed by the respondents on April 16, 1950, and thereafter a fresh offence was committed by them day after day. The learned advocates appearing for the respondents contend, on the other hand, that the starting point would be the date when the offence was first committed, viz., April 16, 1950, and accordingly the complaints which were filed more than three months after the above mentioned date would be time-barred.

Mr. Thakore relies on a decision of this Court in State v. Babu Gulam Mohamed in which Mr. Justice Dixit delivering the judgment of the bench observed:

“The offence (which in that case also was an offence under s. 471(b) of the City of Bombay Municipal Act, 1888) consists in the refusal of the tenant in complying with the order made by the learned Chief Judge and the order made by this learned Chief Judge was that the tenant, viz., the present applicant should vacate the premises. There was, therefore, after the period of eight days a refusal on the part of the applicant to vacate the premises and the refusal continued because the order was not complied with. It is clear, therefore, that there was as much on the August 22, 1950 a refusal on the part of the applicant to vacate the premises as it was on the August 23, 1950 and on the following days and the prosecution was filed by the Municipality on November 23, 1950. It is clear, therefore, that the prosecution is well within time.”

For the respondents it is contended that Mr. Justice Dixit's view is wrong and that we should refer the case to the full bench for clarification and decision.

On their (respondents') behalf our attention is invited to the case of Emperor v. Bechardas in which a reference was made to Narain Chandra Chatterjee v. Corporation of Calcutta and Emperor v. Chhaganlal. In Narain Chandra Chatterjee v. Corporation of Calcutta Jenkins C.J observed (p. 548):

“Had the bye-law been correctly framed, it would have been a question whether limitation would not run from the time when the offence was first committed, for it is to be noticed that the words of the section are that the complaint must be made within three months next after the commission of such offence. There are authorities which bear on that point, but the question does not arise in the view I take of this case, and I, therefore, do no more now than guard myself against being taken to accede to the argument that has been addressed to us on that point.”

In the course of his judgment in Emperor v. Chhaganlal. Mr. Justice Fawcett referred to the case of Narain Chandra Chatterjee v. Corporation of Calcutta and observed that Jenkins C.J was inclined to take the view that the date for the starting point of limitation was the date when the offence was first committed. Mr. Justice Fawcett also was inclined to the same view. It is to be noted, however, that neither Jenkins C.J, nor Fawcett J. decided the point, and they disposed of the cases on other grounds.

But in Emperor v. Bechardas Mirza and Broomfield JJ. expressed their views clearly. Mr. Justice Mirza observed (p. 773):—

“I would hold on this point that the period of six months within which a prosecution has to be brought under s. 200 of the Act is in the case of a continuing offence to be computed from the commencement of the offence when it came to the notice of the Municipality.”

And Mr. Justice Broomfield in a concurring judgment said (p. 781):

“……But in the present case the point must be decided one way or the other, and in my opinion it should be decided in the sense that limitation for a prosecution for a continuing offence runs from the time when the offence was first committed, etc., etc.”

The respondents rely on the above decision of Mirza and Broomfield JJ. and contend that limitation for a prosecution even for a continuing offence must run from the time when the offence was first committed, and in that view we should hold that the complaints are time-barred.

There is a serious difficulty, however, in our accepting the view of Mr. Justice Mirza and Mr. Justice Broomfield in view of the decision of this Court in Emperor v. Karsandas Govindji in which Beaumont C.J said that the head-note in the case of Emperor v. Bechardas was a misleading one and observed;

“……The head note in Emperor v. Bechardas (supra) 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.”

Another distinction between Emperor v. Bechardas and our present case is that whereas in the former case the offence was not a continuing one, in the case before us it is a continuing offence. In other words, here there was an offence committed by the respondents every day after April 16, 1950. Therefore, in the light of the decision in Emperor v. Karsandas Govindji it could be correctly said that on July 3, 1950, there was as much an offence under s. 471(b) of the City of Bombay Municipal Act, 1888, committed as there was on April 16, 1950. In this view of the matter the judgment of Mr. Justice Rajadhyaksha and Mr. Justice Dixit in State v. Babu Gulam Mohamed is, with respect, correct, and there is no reason to refer the matter to the full bench. We must hold accordingly that the complaints against the various respondents were not time-barred.

The appeals are accordingly allowed, the Magistrate's order in each case is set aside and the cases are remanded to the Magistrate for disposal according to law.

Appeals allowed: cases remanded.

K.B.S

The State Of Bombay v. Messrs Devraj Tulsi (Original Accused)

Structured Summary of the Opinion (Bhagwati, J. and Vyas, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (State of Bombay / Municipality)

Respondents (Tenants / Defence)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

The State Of Bombay v. Messrs Devraj Tulsi (Original Accused)

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