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State of Bombay Vs. Devraj Tulsi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 498, 499 to 501 and 503 to 506 of 1951
Judge
Reported inAIR1952Bom146; (1952)54BOMLR40; ILR1952Bom886
ActsCity of Bombay Municipal Act, 1888 - Sections 118(4), 123(7), 200, 354, 471, 507, 507(3), 514 and 523;
AppellantState of Bombay
RespondentDevraj Tulsi and ors.
Appellant AdvocateB.G. Thakore, Additional Assistant Government Pleader
Respondent AdvocateK.J. Khandalawalla, Adv. and ;Haridas and Co.
Excerpt:
city of bombay municipal act (bom. iii of 1888,), sections 471, 507, 514 (c) - non-compliance by accused of order made under section 507 (2)--whether such default a continuing offence under section 471 (b).;by the very terms of section 507 of the city of bombay municipal act, 1888, 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 under section 471 (b) of the act by the occupier would be a continuing offence. it would not be merely the non-compliance on the date or dates specified in the order made under section 507 (2) of the act. it would be a non-compliance which would, though it commenced on the date or dates specified, continue all throughout/the period of such.....bhagwati, j.[1] these are eight criminal appeals against the orders passed by the learned presidency magistrate 8th court, girgaum, bom. bay, acquitting the accused in each case. the eight accused were charged with having committed offences punishable under section 471. city of bom. bay municipal act, iii [3] of 1888, in so fat 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 section 354 of the act and thereby contravened section 507 (3) of the act. the eight accused were the tenants of the owner of she building and the municipality had issued to the landlord a requisition under section 354 of the act to remove the structures etc., which were in.....
Judgment:

Bhagwati, J.

[1] These are eight criminal appeals against the orders passed by the learned Presidency Magistrate 8th Court, Girgaum, Bom. bay, acquitting the accused in each case. The eight accused were charged with having committed offences punishable under Section 471. City of Bom. bay Municipal Act, III [3] of 1888, in so fat 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 Section 354 of the Act and thereby contravened Section 507 (3) of the Act. The eight accused were the tenants of The owner of she building and the Municipality had issued to the landlord a requisition under Section 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 enable 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 Section 507 of the Act and the Chief Judge made an order on 16 3 1960, ordering each of the accused to hand over to the landlord vacant possession of the premises on or before 16 4-1950 This again the tenants would not do, with the result that the tenants were guilty of having contravened the orders under Section 507 (9) of the Act. This default on the part of she tenants was taken by the Municipality to be a continuing offence, and in so far as on 3-7-1950, and thereafter the default continued, the Municipality took 3-7-1950, as the date of the commission of the offence and filed the complaints against each of the accused under Section 471 of the Act in the terms noted above. The learned Presidency Ma-gistrate before whom all these eight cases came for heading was of the opinion that the prosecutions were barred under Section 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 otter provision of this Act, within three months next after the commission of such offences.'

He was of the opinion that the date given by the Chief Judge of the Court of Small Causes to vacate was 16-4-1950, and the prosecutions were barred, having been tiled more than three months after the commission of the offence, the date of the commission, according to him, being 16-4-1950. 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 16-4-1950, and that the offence was just as well committed on 3-7-1950, as on any other date, and therefore the prosecutions which were hunched on 19-9-1950, 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.

[2] The point which arises before us is covered by the decision of Rajadhyabsha and Dixit JJ, in State v. Babu Gulam, Mohamed, cri Rovn. Apln, NO. 114 of 1951. 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 land, lord to the Chief Judge of the Court of Small Causes an order had been made on 14-8-1950, 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 21-8-1950, 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 23-11-1950, and the question that arose for consideration of their Lordships was whether the prosecution was beyond time having regard to the provisions of Section 507 (3) of the Act. The learned Judges there came to the conclusion that if limitation commenced on 22-8-1950, the effect of Section 514 read with Section 323 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 consist-ed 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, shouldvacate 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 com-plied with. The learned Judges, therefore, hold that there was as much on 22-8-1950, a refusal on the part of the applicant to vacate the premises as it was on 23-8-1950, and an the following days and the prosecution was filed by the Municipality on 23-11-1950, and it was clear there are that the prosecution was well within time. The learned Judges, therefore, hold 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.

[3] 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 Raja-dhyaksha and Dixit J.J. was wrong, particularly, having regard to the two decisions of our appellate Court reported in Emperor v. Bechandas 32 Bom. L. R. 768 and Emperor v. Karsandas Govindji 44 Bom. L. R. 756. We, therefore, listen-ed to the arguments which were advanced before us, which, if accepted, would either make us differ from the ratio of the decision of Raja-dhyaksha and Dixit JJ. or refer these criminal appeals to a full bench.

[4] The relevant sections of the City of Bombay Municipal Act III (9) 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 o 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 pro-vision or requisition. It may be noted that the default of the occupier with which the Chief Judge of the Small Causes Court would be con-corned 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, ho, 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 reasonablefacilities to the owner is contemplated and in the nature of it the offence, if any, which would becommitted 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,

[5] That this non-compliance is an offence is provided by Section 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, stall be punishes, 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 Section 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 Section 471 of the Act. In as 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 Section 472 providing for the punishment of such continuing offences and Section 472 lays down that:

'Whoever, after having been convicted of . . .

(b) tailing 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 remoro or rectify say 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 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 Section 607 (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 Section fill which prescribes the period of limitation within which complaints of the offences punishable under the act shall be entertained, and it 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.'

[6] The argument which his been advanced before us is that the period of three months which is prescribed in Section 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 as 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 16th April 1950. i, e. from 24th April 1950 the period of limitation ccmmenced to run against the Municipality and the prosecutions which were launched in the appeals before us on 19th September 1850, were certainly be-yond time. Reliance was placed in support of this argument on a decision of our appellate Court reached by a division bench constituted by Mirza and Broomfield JJ. in Emperor v. Bechardas 32 Bom. L. R. 768. 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 Section 123 (7) or 118 (4), 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 of-fence 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 Broomfield J. at p. 781 are clear and categoric in this behalf, and he observes :

'In this connection Imayrefer again to Section 158, English Public Health Act of 1875, which was enacted in consequence of the decision in Marshall v. Smith (1873) L. B 416. I have quoted the section already; it is given in Welsh it Son v. West Ham Corporation, (1900) 1 Q. B. 324. It seems to me worth nothing 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 doubled 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 a. fill (e) 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 meaning 'nest 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' baa been the source of a great confussion 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 ho 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 he 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 nan 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 aeh 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 today, just as it happened in the case before Beaumont C. J. and Wasoodew J. in Emperor v. Karsandas Govindji 44 Bom. L. R. 756, 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 Empsror v. Bechardas 32 Bom. L. R. 768 : '.....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 net which constitutes an offence once and for all, and an act which continues and, therefore, constitutes a fresli offence on every day on which it continues. Under Section 390, the pgta-blishing of a factory without permission is En offence committed once and for nil when The factor/is established but The working of a factory without fenniseion is an offence which arises on every day on which the factory is so worked; and 83 the prosecution in this case is for working the factory two days before the date of the summons, it is plain that Section 514 is no bar to the prosecution.'

[7] 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 continue; 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 way 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 further on there 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.'

[8] These are the only two cases which it is necessary to refer 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 decision which was reached by the learned Judges Rajadhyaksha and Dixit JJ. in State v. Babu Gulam Mohamed, Cri. Kevn. Appln. nO. 11 of 1951, 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.

[9] The result, therefore, is that even on 3-7.1950. 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 16-4-1950, or in any event on 21-4-1950, was continuing and the charge as framed in respect of the offence_which continued to be committed even aa that date 3 7 1950, was pro-pstly framed, that the prosecution which was launched in respect of the charge was well within time, having regard to the provisions of Section 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.

[10] the result, therefore, will he 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.

[11] There is no doubt that the offence in these cases under Section 471 (b), 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 Section 507 (2), City of Bombay Municipal Act, 1888, and therefore every day the respondents failed to comply with the requisition after 16-4-1950. 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 Section 471 (b) of the Act above mentioned. the offence was committed first on 10-4-1960, and thereafter everyday a fiesb offence was committed by the respondents who persisted in refusing to comply with the Chief Judge's requisition issued by him under Section 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 Section 614 (c) of the Act. Section 514 (c) says :

'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 mouths nest after the commission of such offence.'

This raises a question as to the paint 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 16-4-1950, the date on which the offence under Section 471 (b), City of Bombay Municipal Act, 1888, was committed, and held that the complaints which were filed on 10-9-1950, were time barred. For the State of Bombay this finding is challenged.

[12] Mr. Thakore appearing for the State of Bombay says that every day following 16-4-1950, would be a starting point for limitation, since the offence was first committed by the respondents on16-4-1950, and thereafter a fresh offence was committed by them day after Jay. 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. 16-4-1950, and accordingly the complaints which were filed more than three months after the above mentioned date would be time-barred.

[13]. Mr. Thakore rrelies on a decision of this Court in State v. Babu Gulam Mohamed, cri. Revn. Appln. No. 114 of 1951 in which Dixit J. delivering the judgment of the bench observed :

'The offence (which in that case also was an offence under Section 471 (b), 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 the learned Chief Judge was that the tenant, viz., the present applicant should vacate the promises. 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 92 8-1950 a refusal on the part of the applicant to vacate the premises as it was on 23 8-1950 and on the following days and The prosecution was filed by the Municipally oil 23-11-1950 It is clear, therefore, that The prosecution is well within time.' For the respondent it is contended that Dixit J/s view is wrong and that we should refer the , case to the Fall Bench for clarification and decision.

[14]. On their (respondents') behalf our attention is invited to the case of Emperor v. Bechardas 82 Bom. L. R. 768 in whioh a reference was made to Narain Chandra, v. Corporation of Calcutta 37 cal. 545 and ttmperor v. Chhaganlal, 89 Bom. L. R. 733. In Naratn Chandra v. Corforation of Calcutta, Jenkins 0. J. observed (p. 649):

'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 tilt 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 Empsror v. Chhaganlal, Fawcett J. referred to the case of flaram Chandra 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. Fawcett J. also was inclined to the same view. It is to be noted, however, that neither Jenkina 0. J. nor Faweett J. decided the point, and they disposed of the cases on other grounds.

[15] But in Emperor V. Bgchardas, 83 Bom. L.B. 768 Mirza and Broomfield JJ. expressed their views clearly. Mirza J. observed (p. 778):

''I would hold on this point that the period of sis morths within which a prosecution has to be brought under B. 200 pf the Act is in The case of a continuing offence to be computed from the commencement of the offence when it cams to the notice of the Municipality.' And Broomfield J. in a concurring judgment said (p. 781):

'. , . . But in the present case the point must be decided one was or the other, and in my opinion it should be decided is the sense tint limitation for a precaution for a continuing offence runs from the time when the offence was first committed, etc., etc.'

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

[16] There is a serious difficulty, however, in our accepting the view of Mirza and Broomfield JJ.in view of the decision of the Court in Emperor v. Karsandas Govindji 44 Bom. L. R. 756 in which Baairmant C. J. said that the head note in the case of Emperor v. Bechardas, Section 2 Bom. L.R. 768 was a misleading one and observed: '...... The head-note in Emperor v.(supra) says 'Limitation for a prosecution for a continuing offence from The time when the offence is first committed.' If the expression 'the offence is first committed refers to the dare when the act constituting the offence first took place, the abatement 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 set which continues, and, therefore, constitutes a ire eh offence on every day on which it continues.' Another distinction between Emperor v. Bechardas and our present case is that whereas in the formar cage the offence was not a continuing one, in the cases before us it is continuing offence. In other words, here there was an offence committed by the respondents every day after 16th April 1860, Therefore, in the light of the decision in Emperor v. Karsandas Govindji, it could be correctly said that on 3rd July 1950, there was as much an offence under Section 471 (b), City of Bombay Municipal Act, 188S, committed as there was on 16th April 1930. In this view of the mutter the judgment of Rajadhyaksha and Dixit JJ. in State v. Babu Guland Mohamed, cri. Revn. Appln. 114 of 1951 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.

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

[18] Cases remanded.


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