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State Vs. Sevamal Pevamal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR242
AppellantState
RespondentSevamal Pevamal
Cases ReferredEmperor v. Karsandas Govindji (supra). That
Excerpt:
.....was not set up for the first time on 8th july 1959 but had been there for the last five or six years let us therefore now turn to the complaint to see what is the offence charged against the respondent in the complaint. strong reliance was placed by mr. karsandas govindji (supra). it is clearly stated by beaumont c. karsandas govindji (supra). that decision clearly establishes that so far as a continuing offence is concerned it is committed de die in diem i. the complain charged the respondent with having committed the offence on 8 july 1959 inasmuch as the encroachment or projection was continued on 8th july 1959 not with standing his conviction for the offence of setting up the same and since this offence was committed on 8th july 1949 that date should be taken as the terminus a..........that the complaint was barred by limitation. the argument of mr. b.r. sompura was that the offence committed by the respondent by continuing the encroachment or projection after the date of his conviction for the offence of setting up the encroachment or projection was a continuing offence which was committed from day to day and that inasmuch as such offence was committed on 8th july 1959 and the respondent was charged in respect of that offence the period of six months prescribed under the proviso to section 200(1) of the act should be computed from 8 july 1959 and not from the date of first conviction for the offence of setting up the encroachment or projection. if the period of six months was computed from 8th july 1959 the complaint was not barred by limitation and the.....
Judgment:

P.N. Bhagwati, J.

1. The respondent is the owner of & restaurant situate on Plot No. A In Ward No. 7 of the Municipality of Surat. On 8th July 1959 the Encroachment Inspector of the Surat Municipality visited the premises of the respondent when he found an encroachment made by the respondent on public street by affixing a wooden plank measuring about T x 1' in the front portion of his shop. This wooden plank was resting on posts and was projecting on the public street. The respondent had already been fined twice in respect of this encroachment or projection. The Encroach-ment Inspector thereupon filed a complaint against the respondent charging the respondent with having committed the offence under Section 152 of the Bombay Municipal Boroughs Act 1925 (hereinafter referred to by us as the Act). The complaint was filed before the Special Judicial Magistrate First Class Surat. The respondent appeared before the learned Magistrate and his defence was that the wooden plank had been there for 5 to 6 years and that he had not committed any offence by putting up or continuing the wooden plank. The respondent also contended that in any event the complaint was barred by reason of the provision contained in the proviso to Section 200(1) of the Act.

2. The prosecution led the evidence of the Encroachment Inspector and one clerk in the Surat Municipality called S.V. Karve who had accompanied the Encroachment inspector when the latter visited the premises of the respondent on 8th July 1959. The Encroachment Inspector deposed that on 8th July 1959 when he went to the premises of the respondent he found the encroachment on the public street by reason of the wooden plank affixed by the respondent in the front portion of his shop and that the encroachment was on the portion of the public street which was beyond the land let out to the respondent. The Encroachment Inspector stated that the wooden plank was fixed on 8th July 1959 but admitted that he had not seen it being fixed and that he had made the statement that it was fixed on 8th July 1959 merely on the basis that he had not seen it on the previous day when he had gone to the premises of the respondent. The statement of the Encroachment Inspector that the wooden plank was fixed on 8th July 1959 was challenged by the respondent who maintained that the wooden plank was there since the last five or six years. S.V. Karve in his evidence admitted that he had seen the projection made by the wooden plank before the complaint was filed by the Encroachment Inspector. The respondent also gave evidence and stated that the wooden plank was there for six years right from the time when the construction was put up on the plot of land let out to the respondent. The respondent admitted that two cases had been filed against him for the wooden plank and that he had been convicted on both the occasions on admission. On this evidence the learned Magistrate held that the encroachment or projection caused by the wooden plank had been there for the last five or six years as deposed to by the respondent and that the respondent had been fined twice in respect of this very encroachment or projection. The learned Magistrate rejected the evidence of the Encroachment Inspector on the ground that he had specifically stated in the complaint that the respondent had been fined twice in respect of the same encroachment or projection which he found on 8th July 1959 and the complaint clearly proceeded on the basis that the encroachment or projection was continuing since some years and that in respect of the very encroachment or projection the respondent had been fined twice. The learned Magistrate took the view that inasmuch as the respondent was convicted twice in respect of the encroachment or projection it was clear that the Encroachment Inspector knew about the encroachment or projection long before 8th July 1959 and that he had failed to prove that the complaint was filed within six months from the date when he came to know about it. The learned Magistrate accordingly held that the complaint was barred under the proviso to Section 200(1) of the Act and he acquitted the respondent of the offence under Section 152 of the Act. It is against this order of acquittal that the present appeal has been brought by the State before us.

3. Mr. B.R. Sompura the learned Assistant Government Pleader appearing on behalf of the State urged before us that though the respondent had been convicted for the offence of setting up the encroachment or projection in question the respondent had continued the encroachment or projection and that inasmuch as the encroachment or projection continued on 8th July 1959 when the Encroachment Inspector visited the premises of the respondent the respondent had committed the offence under Section 152 of the Act. Mr. B.R. Sompura drew our attention to Section 200 of the Act and pointed out to us that in view of the amendment of the proviso to Section 200(1) of the Act there was no scope left for the argument that the complaint was barred by limitation. The argument of Mr. B.R. Sompura was that the offence committed by the respondent by continuing the encroachment or projection after the date of his conviction for the offence of setting up the encroachment or projection was a continuing offence which was committed from day to day and that inasmuch as such offence was committed on 8th July 1959 and the respondent was charged in respect of that offence the period of six months prescribed under the proviso to Section 200(1) of the Act should be computed from 8 July 1959 and not from the date of first conviction for the offence of setting up the encroachment or projection. If the period of six months was computed from 8th July 1959 the complaint was not barred by limitation and the respondent was liable to be convicted under Section 152 of the Act. It was on the other hand contended by Mr. Nanavati learned advocate on behalf of the respondent that the complaint was on the basis that the wooden plank had been fixed on 8th July 1959 and that there was therefore a fresh encroachment or projection on that date and since that ease was not believed by the learned Magistrate the respondent was rightly acquitted by the learned Magistrate. Mr. Nanavati also argued in the alternative that even if the offence charged was that the respondent had continued the encroachment or projection on 8th July 1959 the period of six months prescribed under the proviso to Section 200(1) of the Act should be computed from the date of first conviction of the respondent for the offence of setting up the encroachment or projection and not from 8th July 1959 when the Encroachment Inspector visited the premises of the respondent and since the prosecution had not led any evidence to show what was the date of first conviction of the respondent the prosecution had failed to show that the complaint was filed within the prescribed period of six months and the learned Magistrate was therefore right in acquitting the respondent.

4. Before we proceed to examine these rival contentions we might set out Sections 152 and 200 of the Act which are the relevant sections bearing upon the determination of the questions arising before us;

152(1) Whoever in any area after it has become a municipal district or borough (a) shall have built or set up or shall build or set up any wall or any fence rail post stall verandah platform plinth step or any projecting structure or thing or other encroachment or obstruction or (b) shall deposit or cause to be placed or deposited am box bale package or merchandise or any other thing

in any public place or street in or over or upon any open drain gutter sewer or aqueduct in such place or street shall be punished with fine which may extend 10 twenty-five rupees and with further fine which may extend to five rupees for every day on which such projection encroachment obstruction or deposit continues after the date of first conviction for such offence. (2) The Chief Officer shall have power to remove any such obstruction or encroachment and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open space not being private property whether such space is vested in the Municipality or not provided that if the space be vested in Government the permission of the Collector shall have first been obtained the expense of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter VIII.

(3) Whoever not being duly authorized in that behalf removes earth sand or other material from or makes any encroachment in or upon any open space which is not private property shall be punished with fine which may extend to fifty rupees and in the case of encroachment with further fine which may extend to ten rupees for every day on which the encroachment continues after the date of first conviction for such offence.

(4) Nothing contained in this section shall prevent the Chief Officer from allowing any temporary occupation of or erections in any public street on occasions of festivals and ceremonies or the piling of fuel by-streets and spaces for not more than ten days and in such manner as not to inconvenience the public or any individual or from allowing the occupation of or temporary erection of structures on any such streets or spaces for any other purpose in accordance with by-laws made under the Act.

(5) Nothing contained in this section shall apply to any projection duly authorized under Sub-section (1) of Section 143.

200(1) The standing committee and subject to the provisions of Sub-section (3) the Chief Officer may direct any prosecution for any public nuisance whatever and may order proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of this Act or of any rule or by-law thereunder and may order the expenses of such prosecutions or other proceedings to be paid out of the Municipal fund.

Provided that no prosecution for an offence under this Act or by-laws framed thereunder shall be instituted except within six months next after the date of the commission of the offence or if such date is not known or the offence is a continuing one within six months next after the commission or discovery of such offence.

(2) Any prosecution under this Act or under any rule or by-law thereunder may save as therein otherwise provided be instituted before any Magistrate; and every fine or penalty imposed under or by virtue of this Act or any rule or by-law thereunder and any compensation expenses charges or damages for the recovery of which no special provision is otherwise made in this Act may be recovered on application to any Magistrate by the distress and sale of any movable property within the limits of his jurisdiction belonging to the person from whom the money is claimable.

(3) The Chief Officer shall not except with the previous approval of the standing committee direct a prosecution or order proceedings to be taken for the punishment of any person offending against the provisions of the following sections or Sub-sections namely:

Section 55; Sub-section (4) of Section 118: Section 171: and Sub-section (4) of Section 117: Sub-section (4) of Section 184.

5. Section 152 is in two p Articles The first part of the section provides that whoever shall have built or set up or shall build or set up any wall or any fence rail post stall verandah platform plinth step or any projecting structure or thing or other encroachment or obstruction or shall deposit or cause to be placed or deposited any box bale package or merchandise or any other thing in any public place or street or in or over or upon any open drain gutter sewer or aqueduct in such place or street shall be punished in the manner prescribed in that section. This part of the section makes it an offence to build or set up or deposit or cause to be placed or deposited any of the things mentioned therein and the act of building or setting up or depositing or causing to be placed or deposited any such projection encroachment obstruction or deposit is made penal by this part of the section The offence under this part of the section is complete once and for all as soon as the projection encroachment obstruction or deposit is built or set up or deposited or caused to be placed or deposited by the offender. The second part of the section deals with the continuance of the projection encroachment obstruction or deposit after the date of first conviction for the offence constituted by the act of building or setting up or depositing or causing to be placed or deposited the projection encroachment obstruction or deposit under the first part of the section. Before this part of the section is attracted two conditions are required to be fulfilled; firstly there must be a conviction for the offence constituted by the act of building or setting up or depositing or causing to be placed or deposited the projection encroachment obstruction or deposit under the first part of the section and secondly the projection encroachment obstruction or deposit must have continued after the date of such conviction. For every day during which the projection encroachment obstruction or deposit continues the person responsible for the projection encroachment obstruction or deposit is liable to pay fine as provided in the section. The offence set out in the second part of the section is thus a continuing offence which is committed de die in diem i.e. from day to day. The act of the offender in continuing the projection encroachment obstruction or deposit notwithstanding his conviction under the first part of the section constitutes the offence under the second part of the section and if that act continues from day to day a fresh offence is committed on every day on which the act continues and this is what is commonly known as a continuing offence. Now it is necessary to determine in the present case whether the offence charged against the respondent was an offence under the first part of the section or an offence under the second part of the section; for the argument is that if the offence charged was an offence under the first part of the section the terminus a quo for calculating the period of limitation prescribed under the proviso to Section 200(1) would be different from what it would be if the offence charged were an offence under the second part of the section inasmuch as the former offence would be an offence which is completed once and for all as soon as the offending act is done while the latter offence would be a continuing offence. It is also necessary to determine the true nature of the offence charged against the respondent in the complaint because if the complaint was for an encroachment or projection alleged to have been set up for the first time on 8th July 1959 constituting an offence under the first part of the section the prosecution must obviously fail having regard to the finding of the learned Magistrate that the encroachment or projection was not set up for the first time on 8th July 1959 but had been there for the last five or six years Let us therefore now turn to the complaint to see what is the offence charged against the respondent in the complaint.

6. The complaint alleges that the Encroachment Inspector found on 8th July 1959 that there was the encroachment or projection caused by the wooden plank affixed in front of the shop of the respondent. That complaint then alleges in clear and unmistakable terms that in respect of this very encroachment or projection the respondent had been already fined twice. This statement in the complaint leaves no doubt in our mind that the encroachment or projection in respect of which the Encroachment Inspector was filing the complaint was a continuing encroachment or projection and that the grave men of the complaint was that the respondent had continued the encroachment or projection on 8th July 1959 in spite of his two previous convictions in respect of the same. It may be mentioned that the learned Magistrate has also construed the complaint in the same manner. As a matter of fact it is on the basis of this construction of the complaint that the learned Magistrate has rejected the evidence of the Encroachment Inspector as he felt that the evidence of the Encroachment Inspector that the encroachment or projection was set up on 8th July 1959 was contrary to what was stated by him in the complaint. We cannot therefore accept the argument of Mr. Nanavati that the complaint charged the respondent with the offence of setting up the encroachment or projection on 8th July 1959. Mr. B.R. Sompura is right in his contention that the complaint was in respect of the encroachment or projection which was continuing on 8th July 1959 in spite of the conviction of the respondent for the offence of setting up the same and that the offence charged in the complaint was therefore one which fell within the second part of Section 152. If this is the true interpretation of the complaint the first argument advanced by Mr. Nanavati that the complaint was on the basis that the wooden plank had been fixed on 8th July 1959 constituting a fresh encroachment or projection on that date and that the case laid in the complaint not having been believed by the learned Magistrate the respondent was entitled to be acquitted must be negatived. We will now proceed to consider the second argument advanced by Mr. Nanavati which turns on a true interpretation of the limitative provision contained in the proviso to Section 200(1) of the Act.

7. The offence charged against the respondent in the complaint being an offence which fell within the second part of Section 152 was of a continuing nature and it was in respect of the commission of such offence on 8th July 1959 that the respondent was charged in the complaint. Since the offence was a continuing offence it is the latter part of the proviso to Section 200(1) which must apply and we must consider whether having regard to the limitative provision contained in the latter pan of the proviso the prosecution for the offence charged against the respondent was barred by limitation. We may mention here that this proviso was amended by Act 35 of 1955 and prior to its amendment it ran as under:

Provided that no prosecution for an offence under this Act or by-laws framed thereunder shall be instituted except within six months next after the commission of such offence.

8. The proviso as it stood unamended made a composite provision both for defences which were committed once and for all and for offences which were continuing offences. By the amendment however a separate provision was made in respect of continuing offences and the provision made was that if the offence was a continuing one the prosecution should be instituted within six months next after the commission or discovery of such offence. Now if the offence is a continuing offence it is committed de die in diem i.e. from day to day and there is a fresh cause of action every day for which the offender can be prosecuted. If an act of the offender constitutes an offence and if that act continues from day to day a fresh offence is committed on every day on which the act continues. If the act prohibited is continuing an encroachment or projection after the date of first conviction for the offence of setting up the same an offence is committed every day on which the encroachment or projection is continued. On any day on which the offender is showing to have continued the encroachment or projection notwithstanding his conviction for the offence of setting up the same the offence is committed and the period of six months in such a case has to be computed from that date which is the date of commission of the offence with which the offender is charged. If as in the present case the offence is alleged to have been committed on 8 July 1959 the period of six months must be computed from that date for it is on that date that the offence is committed. The language of the proviso is plain and simple and having regard to the concept of a continuing offence which involves the proposition that the offence is committed on every day on which the offending act continues it is clear that a fresh period of limitation starts on every day on which the offence is committed in respect of the commission of the offence on that day. This being the position the prosecution for the offence alleged to have been committed by the respondent on 8th July 1959 by continuing the encroachment or projection on 8th July 1959 notwithstanding his conviction for the offence of setting up the same cannot be said to be barred by limitation under the proviso to Section 200(1) of the Act. Mr. Nanavati however relied upon a decision of the Bombay High Court reported in Emperor v. Bechardas XXXII Bombay Law Reporter 768 where Broomfield J. observed that the limitation for a prosecution for a continuing offence runs from the time when the offence is first committed. Strong reliance was placed by Mr. Nanavati on this observation and it was argued by Mr. Nanavati that limitation for a prosecution for the offence of continuing an encroachment or projection must run from the time when the offence was first committed i.e. from the date of first conviction of the respondent tor the offence of setting up the encroachment or protection which is the date when the respondent ought to have discontinued the encroachment or projection we however do not think that this observation can be relied upon by Mr. Nanavati in support of his argument. This observation was made by Broomfield J. while construing the proviso to Section 200 before its amendment when the basis of the provision contained in the proviso was different from what it is now alter the amendment. After the amendment we find that a separate provision is made lor continuing offences and they are dealt with on a separate basis. A distinction is now made by the Legislature between offences which are complete as soon as the offending act or thing is done and offences which are continuing offences and we cannot ignore this distinction while interpreting the provision contained in the amended proviso to Section 200(1). The decision cited by Mr. Nanavati Cannot therefore help us in arriving at a proper construction of the amended proviso. It may also be mentioned that in a subsequent decision of the Bombay High Court reported in Emperor v. Karsandas Govindji XLIV Bombay Law Reporter 756 to which our attention has been very rightly and fairly drawn by Mr. Nanavati Beaumont C.J. referring to the heard-note of the decision in Emperor v. Bechardas (supra) observed as follows:

The head-note in emperor v. Bechardas says: Limitation for a prosecution for a continuing offence runs from the time, when the offence is first committed. If the expression the offence is first committed refers to the date when the act constitutions the offence first took place the statement is obviously wrong because it would abolish altogether the distinction which has been recognized over and over again continues and therefore constitutes a fresh offence on every day on which it continues.

9. As we have pointed out earlier the division of Broomfield J. in Emperor Bechardas (supra) having been given in the context of the unamended proviso to Section 200(1) cannot be treated as a binding authority on the interpretation of the amended proviso and we are free to put our own interpretation on the amended proviso unhampered by that decision. But even if that decision were regarded as an authority throwing light on the interpretation of the amended proviso we are afraid that we cannot accept that decision as laying down the correct law in view of the later decision in Emperor v. Karsandas Govindji (supra). It is clearly stated by Beaumont C.J. in the decision in Emperor v. Karsandas Govindji (supra) that if the observation of Broomfield J. in Emperor v. Bechardas (supra) means that limitation for a prosecution for a continuing offence runs from the time when the offence first took place that observation does not represent correct law and we ourselves are of the same view. We prefer to follow the reasoning of Beaumont C.J. in the decision in Emperor v. Karsandas Govindji (supra). That decision clearly establishes that so far as a continuing offence is concerned it is committed de die in diem i.e. from day to day and if the offending act continues from day to day a fresh offence is committed on every day on which the act continues. In the present case the act which constituted the offence was the act of continuing the encroachment or projection after the date of conviction of the respondent for the offence of setting up the same under the first part of Section 152 and since that act continued from day to day fresh offence was committed on every day on which the act continued. The complain charged the respondent with having committed the offence on 8 July 1959 inasmuch as the encroachment or projection was continued on 8th July 1959 not with standing his conviction for the offence of setting up the same and since this offence was committed on 8th July 1949 that date should be taken as the terminus a quo for the purpose of calculating the period of limitation prescribed by the proviso to Section 200(1) of the Act. If this is the correct view of the matter as we hold in is this argument of Mr. Nanavati must be rejected.

10. We are under the aforesaid circumstances of the opinion that the respondent as guilty of the offence under Section 152 of the Act inasmuch as he continued the encroachment or projection on 8th July 1959 after the date of his conviction for the offence of setting up the same. We therefore allow the appeal of the State set aside the order of acquittal passed against the respondent convict the respondent of the offence under Section 152 of the Act and sentence him to pay a fine of Rs. 10/and in default to suffer simple imprisonment for seven days.


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