1. This is a revision petition against the appellate judgment of the Assistant Sessions Judge of Cuttack maintaining the conviction of the petitioner under Section 35(1) of the Orissa Shops and Commercial Establishments Act, 1956 (Orissa Act 30 of 1956--hereinafter referred to as the Act), and the sentence of fine passed on him by a second-class magistrate of Cuttaok.
2. The petitioner is the employer of a firm known as Surajmal Kashiprasad of Buxibazaar, Cuttack. On 31 October 1959 the assistant labour officer and inspector of shops and commercial establishments, Guttaok, filed a complaint against the petitioner for his prosecution under Section 35(1) of the Act for contravention of Section 4(1) of the Act and Rule 4 of the Orissa Shops and Commercial Establishments Rules, 1958, thereinafter referred to as the rules.
3. The petition of complaint may be quoted In full:
Petition of Complaint.
In the Court of the Subdivisions Magistrate,
State (on the complaint of the Assistant
Labour Officer and inspector of Shops and
Commercial Establishments, Cuttaok City)
Sri Kashiprasad, employer of Surajmal
Kashiprasad, Buxibazaar, Cuttaok.
I complain that Sri Kashiprasad, employer of Surajmal Kasbiprasad, Buxibazaar. Cuttack-1, has contravened the provisions made under Section 4(1) of the Orissa Shops and Commercial Establishments Act, 1956 (Orissa Act 30 of 1966), and Rule 4 of the Orissa Shops and Commercial Establishments Bales, 1958. On the enforcement of the provisions made under the said Act in the municipal area of Cuttaok City with effect from 15 August 1958, the employer Kashiprasad was due to apply for registration in the prescribed manner within thirty days from the said date, or within thirty days of the opening of his establishment. The employer of the establishment was requested in my letter No. 376 L.O. dated 21 January 1959, letter No. 945 L.O. dated 25 July 1959, and letter No. 1271 L.O. dated 11 September 1959, to apply for registration of his establishment within five days from the receipt of this letter. But the said employer has failed to comply with the legal provisions of the Orissa Shops and Commercial Establishments Act, and the establishment is not yet registered. Copies of my letter No. 376 dated 21 July 1959, No. 945 L.O. dated 25 July 1959 and No. 1271 L.O. dated 11 September 1959, are enclosed herewith for reference.
I therefore request that Sri Kashiprasad, employer of Surajmall Kashiprasad, maybe punished under Section 35(1) of the Orissa Shops and Commercial Establishments Act for violating of Section 4(1) of the said Act and Rule 4 made thereunder.
31 January 1960,
Assistant Labour Officer and
Inspector of Shops and Commercial
4. Section 4 of the Act is as follows comitting Sub-section (3) which is not material for the purpose of this case:
4. (1) Within the period specified in Sub-section (4), the employer of every establishment shall send to the inspector of the area concerned a statement in the prescribed form together with such fees as may be prescribed, containing-
(a) the name of the employer and the manager, if any;
(b) the postal address of the establishment;
(c) the name, if any, of the establishment;
(d) the category of the establishment, that is, whether it is a shop, commercial establishment, hotel, restaurant, case, boarding or eating-house, theatre or other place of public amusement or entertainmeat; and
(e) such other particulars as may be prescribed.
(2) On receipt of the statement and the fees, the inspector shall, on being satisfied about the correctness of the statement, register the establishment in the register of establishments in such manner as may be prescribed and shall issue in the prescribed form the registration certificate to the employer. The registration certificate shall be prominently displayed at the establishment.
(3) * * *(4) Within thirty days from the date mentioned in column 2 below in respect of an establishment mentioned in column 1, the statement together with the fees shall be sent to the inspector under Sub-section (1): Establishment Date from which period of thirty days to com-mence(i) Establishment ex The date on which isting on the date this Act comes into on which this Act force.comes into force(ii) New establishment The date on which the establishmentcommences its work.* * *
Rule 4 of the rules may also be quoted:
4. Within the period specified in Sub-section (4) of Section 4 of the Act, the employer of every establishment shall submit to the inspector of the area concerned an application in form 1 together with the necessary treasury challan in token of payment of the prescribed fee, for registration or renewal of registration of the establishment:
Provided that an application for renewal of registration shall be made so as to reach the inspector not less than two months before the date on which the Current registration expires, and if the application is so made, the premises shall be held to be duly registered until such date as the inspector renews or otherwise disposes of the application.
Section 35(1) of the Act reads as follows:
35. (1) Whoever contravenes any of the provisions of Sections 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 24, 25, 26, 27 and 29 shall on conviction be punished with a fine which for a first offence may extend to two hundred and fifty rupees and for a second or subsequent offence five hundred rupees.
Section 37, however, prescribes a period of limitation for prosecutions launched under this Act in the following terms:
37. No Court shall take cognizance of any offence under this Act or under any rule or order made thereunder unless complaint thereof is made within six months of the date on which the offence is alleged to have been committed.
5. The whole scheme of the Act thus appears to be that in respect of old establishments that were in existence prior to the commencement of the Act, the employer concerned should submit a statement required by Section 4(1) along with the prescribed fee, within thirty days of the commencement of the Act. Section 4(2) says that on receipt of such statement and the fee the inspector shall register the establishment, and also issue a registration certificate to the employer. The employer is further directed to display prominently the certificate at his establishment.
6. It is admitted that the Act came into force in the municipal town of Cutback on 15 August 1958. The petitioner's establishment was in existence in the said municipality prior to the commencement of the Act. Hence, by virtue of Section 4(4) of the Act, the employer was bound to send to the inspector of the area concerned the statement required under Section 4(1) of the Act within thirty days from 15 August 1953, i.e., on or before 14 September 1958. Admittedly no such statement was submitted. Rule 4 is only supplementary to the provisions of Section 4(1) of the Act. It does not create a new offence. Clause (e) of Sub-section (1) of Section 4 says that the statement shall contain 'such other particulars as may be prescribed.' By way of clarification, therefore, Rule 4 says that the prescribed particulars shall be those described in form 1.
7. The main point of law urged before the lower appellate Court as well as before me by Mr. C.V. Murthi on behalf of the petitioner was that the date of the offence alleged to have been committed by the petitioner was 15 September 1958, i.e., one month after the coming into force of the Act (15 August 1958) and that as, admittedly, the petition of complaint was filed on 31 October 1959--more than one month thereafter, It was barred by limitation, and that the Sub-divisional Magistrate bad no jurisdiction to take cognizance of the offence. Tills is the sole point for decision in this revision petition.
8. The obvious question which arises for consideration is what was the date on which there was a contravention of the provisions of Section 4(1) of the Act, read with Rule 4 of the rules. If the aforesaid Sub-section (1) of Section 4 is construed along with Sub-section (4) of the same section, the inference is that if the required statement was not submitted within thirty days from the date of commencement of the Act, that is, before 16 September 1958, there was a contravention of the statutory provision of the Sub-section. Hence on 15 September 1958 the offence of contravention of a statutory provision of the Act was completed. If the period of six months specified in Section 37 of the Act for the purpose of filing a petition of complaint is taken into consideration, it is clear that the complaint should have been filed within six months from the aforesaid date.
9. The learned advocate on behalf of the State, however, contended that the offence of non-submission of the statement was a continuing offence and though it was actually committed for the first time only on 15 September 1958, it contended to be committed every day until the required statement was sent to the authority concerned. Hence it was urged that Section 37 of the Act has no application to continuing offences of this type. This argument appears to have found favour with the lower appellate Court.
10. It is true as a general statement that when an offence is of a continuing nature, any period of limitation for launching prosecution may not apply to that offence. But as pointed out by Criom Johnson, J., in (1953) 2 W.L.R. 350 at 357:
As a general rule the Court is not, I think, eager to find continuing offences created by a statute and certainly not without express words which make clear that that was the intention of the legislature when the statute was passed.
Ordinarily, if the legislature intends a particular offence to be a continuing offence it provides that
for every day that the act in question continues or remains unabated as the case may be, it shall be a 'continuing offence and a penalty is fixed for every day or week or month during which the state of affairs exists.' --per Lord Goddard (ibid., p. 354).
11. In Indian statutes also provision of such dally fines is common. In the Act, however, no such provision is found. It is true that the absence of such provision for a daily fine is not conclusive and even in the absence of such a provision an offence may be a continuing offence if from the very nature of the offence it can be held that it is susceptible of continuance--see Marshall v. Smith (1873) 8 L.R.C.P. 416.
12. It is difficult understand how the omission to send the prescribed statement within the stipulated period can be held to be a continuing omission. Section 4(4) of the Act definitely requires the statement to be submitted within thirty days and the offence was complete only on the expiry of that period. If the legislature intended that until the submission of the statement some penalty must be imposed on the employer, it would have provided for dally fines in the penal sections.
13. The learned advocate for the State urged that due to the omission of the petitioner to submit the required statement the establishment was not registered and that the offence of non-registration was a continuing offence. There might have been some force in this contention, if in the petition of complaint it was further alleged that the petitioner had committed an offence under Sub-section (2) of Section 4 of the Act. That sub-section (already quoted) says that the establishment shall be registered on receipt of the statement and the prescribed fee and further that the registration certificate shall be prominently displayed at the establishment. The omission to prominently display the certificate of registration may be a continuing omission until it is rectified, and consequently if the petitioner had been prosecuted for contravention of Sub-section (2) of Section 4 of the Act, it may me urged, with Borne Justification, that the offence was a continuing offence, for which the period of limitation prescribed in Section 37 may not be applicable. But the petition of complaint (quoted above) expressly says that the petitioner was to be prosecuted for contravention of Sub-section (1) of Section 4 and of Rule 4 of the rules. It is true that in the aforesaid petition of complaint there is a reference to the petitioner's refusal to apply for registration bat it is not stated that in consequence of non-registration the petitioner did not display prominently at his establishment the certificate of registration and consequently contravened the provisions of Sub-section (2) of Section 4 of the Act.
14. In my opinion the principle laid down in 1956 II L.L.J. 153 applied with full force here. There the occupier of a factory was prosecuted under Section 92 of the Factories Act for
(a) omission to send a written notice of occupation in form 3 as required by Section 7(1) of the Act and the Bombay Factories Rules made under that Act.
(b) omission to submit an application in from 2 for registration of the factory as required by Section 6 of the aforesaid Act read with Rule 4 of the aforesaid rules, and
(c) omission to apply for the grant of a licence to run the factory as required by I Section 6 of the Act read with Rule 4 of the aforesaid rules.
The learned Judges held that the contraventions described in (a) and (b) above will not amount to continuing' offences and that the contravention described In (c), namely, running of the factory without a licence, would alone be continuing offence. The provisions of the Factories Act referred above are very similar to those in Section 4 (?) of the Act. Section 7(1) of the Factories lot requires the occupier of a factory to send to the chief inspector of factories is, written notice containing some specified particulars and Sub-section (2) of that section further says that in respect of factories which were in existence prior to the commencement of the Factories Act that application shall be sent, within thirty days from much commencement. The close similarity between the language of Sub-section (1) of Section 7 of the Factories Act and that of Sub-sections (1) and (4) of Section 4 of the Act may be noticed. Similarly Section 6 of the Factories Act read with Rule 4 of the Bombay Factories Rules requires the occupier of a factory to submit to the chief inspector of factories an application in form 2 for registration of the factory and grant of licence. After discussing the previous Bombay decision on the subject the learned Judges held that the conduct of the occupier in using his premises as a factory from day to day without obtaining a licence was alone a continuing offence. With respect, I would adopt this reasoning of the learned Judges.
15. The English decision cited above--(1953) 2 W.L.R. 350--also throws some light on this question. There the question for consideration was whether the offence of letting out on hire a building against the provisions of Section 7(1) of the Building Materials and Housing Act, 1945, was a continuing offence or whether that offence was completed on the day the building was let out on rent. Their lordships held that the words 'lets or offers to let' occurring in that section did not create a continuing offence and that the offence was completed on the day the building in question was actually let out on hire.
16. It was then contended that if this view be taken the owners of many establishments that were in existence prior to the commencement of the Act may, with impunity, refuse to comply with the provisions of Section 4(1) and it would be almost impossible for the inspector to know within six months from the commencement of the Act all the establisments existing In a particular area, and then to ascertain whether they have submitted the required statements or not, and then to initiate prosecution within the period of six months fixed in Section 37. This difficulty can be well appreciated, but I think the remedy lies with the legislature. In the corresponding provision of the Factories Act (Section 106) this difficulty was solved by saying that the period of limitation would start, not from the date of the alleged commission of the offence bat from the date on which the alleged commission of the offence came to the knowledge of the inspector. A similar provision is found in the Indian Mines Act also where in Section 79(2) the period of limitation for initiating prosecution was stated to commence from the date on which the alleged commission of the offence came to the knowledge of the Inspector. The Orissa legislature also could have made such a provision in Section 37 of the Act with a view to give adquate interval to the inspector to make enquiries and ascertain whether any of the statutory provisions have been complied with or not. Merely because there will be practical difficulties in enforcing the provisions of Section 4(1) of the Act, in view of the limitations imposed by that, contravention of that section, would amount to a continuing offence.
17. For these reasons the revision petition is allowed, the conviction and sentence are set aside, and the petitioner is acquitted. Fine, if paid, shall be refunded.