M.C. Desai, J.
1. The applicant is the owner of a cinematograph; he gave exhibitions by means of it in a building not licensed under the U. P. Cinemas (Regulation) Act (Act 3 of 1956) and was prosecuted under Section 8 of the Act for infringement of the provisions of Section 3. He was convicted on 26-2-1958 and sentenced to a fine of Rs. 500/- and was 'further sentenced under the above sections in the case of continuing offence to a fine of Rs. 100/- for each day during which the offence shall continue'. This judgment was passed against him by Sri K.C. Sinha, a first class Magistrate. The applicant filed an appeal which was dismissed and the judgment was confirmed.
He did not come up in revision against that judgment. Since the applicant was further sentenced to a daily fine Sri C.M. Srivastava, successor of SriK.C. Sinha, got an enquiry made from the Inspector who reported that the applicant, continued giving exhibitions by means of a cinematograph upto 31-3-58. Consequently on 24-6-1959 Sri C.N. Srivastava passed the order, now sought to be revised, issuing a warrant of levy of Rs. 3400/- as the amount of the further fine to which the applicant was sentenced on 26-2-1958. The period from 26-2-1958 to 31-3-1958 was computed to be thirty four days.
2. There is no force in the applicant's contention that Sri C.N. Srivastava had no jurisdiction to pass the order of levy of fine and that he could' not do so without issuing a notice to the applicant. Sri C.N. Srivastava only executed the order passed by his predecessor, Sri K.C. Sinha. The order of Sri K.C. Sinha was bound to be executed and since Sri C.N. Srivastava took up all the work left by him he was competent to execute the order. No. question of any hearing or of issuing a notice to- the applicant arises because there is no law that requires that a notice should be given before a warrant of levy of fine is issued against 'the person' sentenced to fine. The applicant was bound to pay the fine at the rate of Rs. 100/- per day during which the offence continued. If he disputed that the offence continued or that it was continued for so many days he 'could object to the attachment of his property but the attachment does not become illegal' because he was not heard before the warrant was issued.
3. The real question however is whether the order of Sri K.C. Sinha imposing a further daily fine of Rs. 100/- treating the offence as a continuning offence was correct. If the offence was not a continuing offence he had no jurisdiction to impose it and Sri C.N. Srivastava would have no jurisdiction to recover it or to issue a warrant of levy. If it was without jurisdiction, Sri C.N. Shivastava was bound to refrain from enforcing it. Actually if the offence was not a continuing offence, Sri C.N. Srivastava was bound to find that it did not continue for any day after 26-2-1958.
If the offence was not a continuing one, it could not be continued at all and even if Sri K.C. Sinha imposed a daily fine treating it as a continuing offence, when Sri C.N. Srivastava proceeded to calculate the amount of the tine to be realised he should have found that the offence did not really continue at all and that consequently no amount was due from the applicant. If instead he found that Rs. 3,400/- were due from him it would be an illegality which can be revised by the court.
4. The offence of which the applicant was convicted under Section 8 was that of giving exhibitions by means of a cinematograph in an unlicensed building. It was thus an offence that had to be a continuing offence in order to give jurisdiction to> the Magistrate to impose a further daily fine. Now the offence in its very nature could not be said to be a continuing offence. A continuing offence means an offence that continues, the word 'continue' being used as an intransitive verb. 'Continue' means 'to remain in existence or in its present condition; to last, endure persist in being'. Another meaning of it is 'to remain stayed'. (See Murray's dictionary).
These meanings show that the act amounting to art offence must be a continuous act in order to make the offence a continuing offence. It must be an act that remains in existence or in its present condition, i.e., it exists from moment to moment; it must be an act that lasts or endures for a certain period. An act of giving an exhibition by means of a cinematograph continues only so long as the exhibition lasts; once the exhibition finishes the act ceases to remain in existence or to continue. If after an interval another exhibition is given by means of the cinamatograph it is a repetition of the act and not its continuation.
The applicant was convicted for giving a particular exhibition at a particular time by means of his cinematograph, when it finished the offence came to an end and there could not possibly arise any question of its being continued, though it could be repeated. 'Continuing offence' means an offence that continues from moment to moment without any interruption or break. It is an offence that must continue without requiring any act on the part of the offender to keep it in existence. It is an offence which would come to an end only when the accused does an act to terminate it.
There is no evidence here that the applicant continuously gave exhibition by means of a cinematograph from 26-2-58 to 31-5-1959; all that is on the record is a report by the Inspector about the fact that the applicant regularly gave exhibition by means of a cinematograph. I may take it that an exhibition lasts for about three hours and that one exhibition is separated from another by some interval which may be of some minutes or may be of some hours. This means that there is no continuous exhibition by means of a cinematograph. As soon as one exhibition finishes the offence ceases to be committed. In the interval between one exhibition and the next one, whatever may be its duration, there is no commission of any offence.
In a continuing offence there cannot be any break like this. It is not known whether the applicant gave one exhibition or two or more exhibitions every day or he gave an exhibition once in two or more days. Ordinarily two or three exhibitions are given daily in cinema houses but no owner of a cinema is bound by any law to give one or more exhibitions daily and it is open to him to give an exhibition once in two or more days. If an offence of giving an exhibition by means of a cinematograph were a continuing offence, it would be a continuing offence, regardless of the duration of interval between two consecutive exhibitions. The unit of time for which the further fine is imposed is a. day; this fixing a day as the unit would be inconsistent with the interval between two exhibitions being of more than a day.
If at least one exhibition is given in a day there would be no anomaly in fixing the unit as one day but if the owner of a cinematograph is not bound to give at least one exhibition a day fixing the unit at one day would be anomalous if he gives an exhibition once in two or more days. If by continuing offence is meant a continuous act there would be nothing anomalous in fixing the unit as one day. The words 'everyday during which the offence continues' mean that the offence is a continuous offenceand not a continual one; it must be committed every day. If breaks are allowed, since there is no limit fixed for the maximum duration of break by any law they can be of any duration and if they are of a duration of more than a day, every day during which the offence continues' would be rendered meaningless.
5. The words 'continuous offence' should be interpreted in the same manner as the words 'continuing breach of contract' and 'continuing the wrong independent of contract' occurring in Section 23 of the Limitation Act. A continuing offence is a continuing wrong punishable by a criminal court while continuing breach of contract or a continuing tort is a continuing wrong for which damages can be awarded by a civil court. Thus continuing breach of contract, continuing tort and continuing offence are all continuing wrongs. What is the meaning of 'continuing' would not depend upon whether a civil court or a criminal court has jurisdiction over the wrong. Therefore, whatever meaning is given to the words 'continuing breach of contract' and 'continuing wrong independent of the contract' in Section 23 at the Limitation Act the same must be given to the words 'continuing offence' in Section 3 of the U. P. Cinemas (Regulation) Act. It was conceded that 'continuing' in Section 23 means 'continuous'.
6. I, therefore, hold that the offence committed by the applicant was not a continuing offenceand that he was not liable to a further daily fine.Even if a further daily fine was imposed it cannotbe realised. The application is allowed, the orderof the Magistrate dated 24-6-1959 is set aside and the warrant of levy of fine is cancelled. If the finehas been realised it shall be refunded.