Chandra Reddy, J.
1. This case in revision is directed against the order of the Sub-Divisional Magistrate confirming the conviction and sentence of fine of Rs. 50/- under Section 116(3) of the Madras Village Panchayats Act.
2. The respondent was elected President of the Panchayat Board of Nallamothuvaripalem, hamlet of Karlapalem, on the 17th of January, 1953. The petitioner was the President up to that date. He handed over some of the properties of the Panchayat to the respondent on the 25th of February 1953 as seen from Exhibits P-2 and P-3. A notice was issued to him calling upon him to hand over the other items mentioned therein. He did not comply with this demand, and so another notice was issued on the 27th of November, 1953, but to no purpose. Consequently, a complaint was filed against him by the present President under Section 116(3) of the Village Panchayats Act.
3. In support of the prosecution, three witnesses were examined. They spoke to the failure of the petitioner to deliver a Radio, 8 cement pipes and papers relating to a civil case.
4. Various defences were raised by the petitioner, the chief of them being that all the properties were delivered as required of him by notice dated 30th March 1953, that the prosecution was incompetent as the sanction of the Government was not obtained and lastly, it was barred by limitation.
5. The Courts below rejected all the defences and convicted the petitioner as mentioned above.
6. In support of this petition, Mr. Rajeswara Rao repeated the same points that were urged unsuccessfully before the lower court.
7. It is convenient to deal first with the argument that want of sanction has vitiated the proceedings in the courts below. This is based on Section 106 of the Village Panchayats Act, which recites:
When the President, Executive Authority or any member is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no court shall take cognisance of such offence except with the previous sanction of the Government.
According to Mr. Rajeswara Rao, an Ex-President also comes within the purview of the section. It was while acting or purporting to act in the discharge of his official duty that he failed to deliver the properties of the Panchayat. He reinforced his argument by citing a decision of Lakshmana Rao J., in Subbayya v. Venkata Narasayya 49 Mad LW 555 : AIR 1939 Mad 598(A).
There, the Vice-President of a Panchayat Board was acting as President owing to a vacancy in that office. On the election of a President, he declined to hand over charge to the latter, as the validity of his election was disputed. The learned Judge thought that since the offence was committed by the petitioner therein while acting or purporting to act in the discharge of his official duty, sanction was required under Section 227-A of the Madras Local Boards Act, which is in pari materia with Section 106 of the Village Panchayats Act.
No reasons are given why Section 227-A of the Madras Local Boards Act was applied to the case. It may be due to the fact that since the election of the President was in question, the Vice-President was deemed to continue to be the President and his refusal to comply with the demand of the newly elected President was while acting or purporting to act in the discharge of his duty.
8. This question was considered in Chenghiah Chetty, In re : 55 Mad LW 755 : (AIR 1942 Mad 745(2))(B). Mr. Justice Horwill decided that no sanction was needed to prosecute an Ex : President for failure to hand over charge to the newly elected President. This opinion is shared by Mr. Justice Burn in Bakthavatsalu v. Ramanuja AIR 1933 Mad 326(C), These two rulings are in accordance with the terms of Section 106 of the Village Panchayats Act and with respect I adopt the reasoning of the learned Judges.
It is difficult to see how a person who ceased to be the President could be said to be a President for purposes of S 106 of the Act. The section in terms can apply only to a person who is acting as President or Vice President. This argument, is therefore, rejected.
9. The second contention put forward by Mr. Rajeswara Rao is that as the complaint was not filed within three months of the election of the new President, it is barred by limitation. There is substance in this contention,
10. The relevant provision is enacted in Section 103 of the Village Panchayats Act.
Save as otherwise expressly provided in this Act, no person shall be tried for any offence against this Act or any Rule or by-law made thereunder, unless complaint is made within three months of the commission of the offence by the Police, the executive authority or a person expressly authorised in this behalf by the Panchayat or executive authority; but nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognisance of offences upon information received or upon their own knowledge or suspicion:Provided that failure to take out a licence or obtain permission under this Act shall, for the purpose of this section, be deemed to be a continuing offence until the expiration of the period, if any, for which the licence or permission is required and if no period is specified complaint maybe made at any time within twelve months from the commencement of the offence.
11. This section requires that all offences, except those specifically excluded in the Act, should be complained against within three months. An exception is made in regard to some offences mentioned in the proviso to that section. Barring them, all crimes committed under the Act come within the ambit of Section 103.
12. It is argued for the respondent that the failure to hand over charge under Section 116(3) being a continuing offence, it is saved by the proviso and does not fall within the main section. In support of this contention, Mr. Venkatasubba Rao relied on two rulings of the Madras High Court in Raghavachariar v. President Union Board Tiruvellore AIR 1926 Mad 806(D) : and Ramachandra Chetty, In re : AIR 1926 Mad 763(E).
In the first case, the Union Board served the accused with a notice in respect of an encroachment. The reply of the accused to that was that there was no encroachment and invited the Board to make a fresh enquiry.
This was done, and a fresh notice was served on the accused for the same purpose. It was pleaded on behalf of the accused that as the complaint was not filed within three months of the first notice, it would not be entertained.
This defence was negatived by Waller and Madhavan Nair JJ., on the ground that the first notice was disregarded by both parties, and therefore it was certainly competent for the President of the Board to issue a fresh notice after the close of the inquiry which was initiated at the suggestion of the accused. Consequently the complaint filed within three months of the second notice was not time-barred.
13. The offences involved in the second case was under Sections 146 and 149 of the District Municipalities Act. There, a notice was first served on the accused under Sections 146 and 149 and 313 of the Madras District Municipalities Act in June 1934. A few days thereafter, the accused put in a petition to the Chairman requesting him to inspect the latrine.
In reply an endorsement was sent on August, 11th, asking him to obey the notice in one week and threatening him with prosecution in default thereof. At the same time, the Chairman also directed the Health Officer to report further, and the report was not favourable to the accused. On 22nd October, a fresh notice was sent to the petitioner, which was served on November 6th. As he failed to comply with this notice, he was prosecuted.
The main defence was that the prosecution was barred under Section 347 of the District Municipalities Act, which is analogous to Section 105 of the Madras Village Panchayats Act. This objection was disallowed by Devadoss and Waller JJ., on the ground that the offence consisted in disobeying the terms of the notice. The Bench was not prepared to follow the decision of Srinivasa Ayyangar J., in Ramanujachariar v. Kailasam Iyer ILR 48 Mad 870 : AIR 1925 Mad 1067(F), where the learned Judges expressed the opinion that prosecution for non-compliance with a requisition of the local authority to remove an obstruction must be instituted within three months thereof as provided by Section 223 of the Local Boards Act.
It may be mentioned that Section 223 is in pari materia with Section 103 of this Act. They preferred to accept the contrary view expressed by Mr. Justice Jackson in Cr. R. C. No. 164 of 1925(Mad)(G), In my judgment, the two Bench decisions of the Madras High Court are not authorities for the proposition put forward by Mr. Venkatasubba Rao.
14. The gravamen of the charge against the petitioner under Section 116(3) of the Village Panchayats Act is his failure to hand over the properties belonging to the Panchayat and not refusal to comply with the requisition contained in the notice. The ex-President has to hand over charge without any requisition from the new President. No demand need be made on him unlike in Section 116(3)(b) of the Act.
15. It was next urged by Mr. Venkatasubba Rao that the offence under Section 116(3)(a) is a continuing one and every day the ex-President fails to hand over the properties, he commits a distinct offence, and therefore, does not fall within the terms of Section 103. According to him, the matters mentioned in the proviso are only illustrative and not exhaustive. This is to overlook the language of the Section 'Save as otherwise expressly provided etc.'
The connotation of this clause is that only such matters as are specifically excluded from the operation of the section that do not fall within it. The provisions of Section 103 are imperative, and prosecution must be launched within three months of the commission of every offence except those specifically excluded from the purview of the section. It is only those classes of offence which are specified in the proviso that are excluded from the operation of Section 103 and these offences are failure to take out a licence or obtain permission under the Act.
It is these two kinds of cases alone that are treated as continuing offences. The expression used is 'Deemed to be a continuing offence' which means it is by virtue of the fiction introduced in this proviso that they become continuing offences. It means that but for this fiction, they could not be continuing offences. This fiction cannot be extended to cases which are not specifically enumerated in that section. Except these two categories of offences, all others are governed by Section 103, the main section.
16. Mr. Rajeswara Rao relied on a ruling of the Bombay High Court in Bechardas Narotamdas v. Emperor AIR 1930 Bom 340(H), It was held in that case that even in respect of a continuing offence, the complaint must be filed within three months from the first commission of the offence. A different view was taken by Mr. Justice Happell in Pavayamal v. District Board, Salem AIR 1947 Mad 429(I). It is not necessary for me to resolve the conflict, as in the present case, we are not considering the question of a continuing offence,
17. Section 103 being a mandatory one, failure to launch a prosecution within three months of the commission of the first offence vitiates the proceedings. The complaint having been filed in this case more than three months after the failure to hand over records after the election of the new President, it is time-barred.
18. It follows that the conviction is unsustainable and has to be quashed. In this view of the matter, it is not necessary to go into the merits of the case.
19. The Criminal Revision Petition is allowed. The fine, if paid, will be refunded.