K. Ahmad, C.J.
1. This is a reference made under Section 438 Cr. P. C. by Shri S. K. Mohanty, A. D. M. (J), Samhalpur. It is directed against an order dated 23-6-1965 passed by the Magistrate 1st Class, Panposh. whereunder the accused Marchia Oram has been convicted under Section 385-A of the Orissa Municipal Act arid sentenced to pay a fine of Rs. 40/- in default, to undergo S. I. for 10 days and further to pay a daily fine of Rs. 0.50 paise from the date of the order till the petitioner obtains permission or demolishes the house.
2. This order of conviction is based on the allegation made on 13-12-1963 in the report of the Amin to the Executive Officer, Notified Area Council. Rourkela and on his evidence given by him at the trial court as P. W, 1 to the effect that the accused had been constructing a pucca house consisting of 5 rooms on a plot No. 459 in village Durga-pur without obtaining permission from the Municipality. This allegation by the trial court was found true.
3. In Revision the validity of the order was very much challenged by the accused. The learned A D. M. (J) has allowed the revision application and has referred the case to this Court on 3 points.
(1) Any prosecution under the Municipal Act is competent provided the same is filed within the prescribed time;
(2) In order that Section 385-A of the Orissa Municipal Act is attracted, there should be clear finding of the court that the accused is established to be the owner of the building which may also include the land; and
(3) The imposition of daily fine for each day can be sustained for the period during which the offence is proved to have continued after the 1st day, though in the instant case, there is no proof nor any finding as to the offence continuing from day to day beyond 23-6-1965 on which the daily fine has been imposed.
4. The first two points on the facts of this case are wholly misconceived.
5. The law relating to limitation for starting a prosecution under the Municipal Act is provided in its Section 347. This section inter alia provides that-
'Save as otherwise expressly provided in this Act, no person shall be tried for any offence against the provisions of this Act, or of any rule, regulation or by-law made under it, unless a complaint is made by the police or the Executive Officer of a municipal council, or by a person expressly authorised in this behalf by the municipal council or its Executive Officer, within three months of the commission of the offence.'
Obviously therefore the trial for any of the offences specified in this section is illegal, if the complaint is not made within 3 months of the commission of the offence. To this extent the learned A. D. M. is right and this is also true that the onus to prove the date of the commission of the offence is on the prosecution. But in the present case both the requirements of law as contended by Mr. Misra appearing for the Municipality are said to have been fully complied with. The petition of complaint in the present case was written on a printed form, and therein there is a specific column provided with the heading 'Place and time of occurrence'. As against this column there is a clear entry made 'Durgapur 13-12-1963'. Further there is also the positive evidence given by P. W. 1 to the effect that 'the accused constructed a house on 13-12-1963 in village Durgapur'. Therefore there was no controversy raised in the trial court as to the commission made by the prosecution in disclosing the date of the commission of the offence. Despite all the facts and circumstances the learned A. D. M. has--I fall to understand how--erroneously come to the conclusion that-
'The Amin's report 18-12-1963 exhibited as Ext. 1 does not disclose as to the date or period of commission of the offence from the prosecution report to acquire competency and jurisdiction. It is therefore difficult to say from which date the period of three months should be computed.'
This finding is just contrary to the aforesaid material evidence on the record and as such it Is not sustainable in Jaw.
6. Likewise the 2nd point also is based on misapprehension. The finding given by the learned A. D. M. in regard to this point is that-
'At any rate, in order to bring home the charge to the accused, it must be clearly put to him on the evidence of the prosecution whether the accused is a direct or indirect owner of the building in question as on that much depends for application of Section 385-A. In the instant case, there is no finding or evidence as already stated In this respect. As such, Section 385-A is not rightly to be attracted'
7. But there is the positive admission made by the accused in his statement under Section 342 Cr. P. C. that 'I was only repairing my old house'. Therefore this admission is conclusive on the point that the accused is the owner of the building in question, and as the admission made is unqualified, it is not necessary for the purposes of this case to decide as to whether the word 'building' as used in Section 385-A of the Municipal Act includes the land also whereon it standr This therefore disposes of the 2nd point.
8. The reference on the third point however is fully fortified and correct. The proviso to Section 347 lays down that-
'failure to take out a licence or obtain permission under this Act shall, for the purposes of this section, be deemed 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 may be made at any time within twelve months from the commencement of the offence.'
For the purposes of this section therefore the construction of any building without the permission of the Executive Officer is to be construed as a continuing offence. In other words this provides that the liability for the unauthorised construction continues until the expiration of the period, if any, for which the licence or permission is required. Thus the limitation as provided in the main body of the Section 347 will commence to run from moment to moment during this period. In that way the proviso has a twofold implication (1) on that it extends the period of limitation to the extent as stated therein and (2) that it constitutes every moment of the existence of the unauthorised construction a fresh offence during that period. As such in view of the latter concept the contemner may be convicted for each of the moments of the existence of the unauthorised construction during that period as if he is committing a new offence every moment. It will thus result in the multiplication of the criminal acts resulting in multiplicity of conviction and sentence. But for each conviction and sentence there must be a separate trial, though in one trial the commission of the continuing offence may be noticed up to the date the order is passed. If the accused is to be convicted for the subsequent continuity of the offence a fresh prosecution has to be taken for it. But in no case, for that possible continuity in future any anticipatory sentence can be imposed on him. Such a course is not permissible either on principle or authority vide In re, Fazla, AIR 1934 Lah 428 (1); Bal Kishun Das v. Emperor, AIR 1935 Pat 208 and Munshi Lal v. Emperor, AIR 1933 All 657. In the last case Kendall, J. has quoted with approval the earlier decision of that court in Amir Hasan Khan v. Emperor, AIR 1918 All 266 and has disposed of this point in these words-
'The liability to a daily fine in the event of a continuing breach has been imposed by the legislature in order that a person contumaciously disobeying an order lawfully issued by a Municipal Board may not claim to have purged his offence once and for all by payment of the fine imposed upon him for neglect or refusal to comply with the said order. The liability is to be enforced as often as the Municipal Board may consider necessary by the institution of a second prosecution in which the question for consideration will be, how many days have elapsed from the date of the first conviction under the same section during which the offender is proved to have persisted in the offence and secondly the appropriate amount of daily fine to be imposed under the circumstances of the case, subject to the prescribed maximum of Rs. 5 per diem.'
Therefore to the extent of the third point reference is accepted and the order of the Magistrate inflicting a further fine of 50 paise from the date of the order till the petitioner obtains permission or demolishes the house is set aside; but the rest of the Magistrate's order is maintained and the Reference in that regard is rejected.