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State Public Prosecutor Vs. Vilakku Syed Ismail Natchi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1970)2MLJ552
AppellantState Public Prosecutor
RespondentVilakku Syed Ismail Natchi
Cases ReferredState v. Kunja Bekari
Excerpt:
.....made upon him under or in pursuance of any of the said provisions, continues to contravene the said provision or the said rule or order, or continues to fail to comply with the said direction or requisition, shall be punishable for each day after the previous date of conviction during which he continues so to offend, with fine which may extend to the amount mentioned in that behalf in the fourth column of the said schedule. bhiwandiwalla (1956)iillj153bom .the expression 'continuing offence' though not a very happy expression has acquired a well-recognised meaning in criminal law. , 17th june, 1967 and that this would not fall within the meaning of failure to take out a licence or obtain permission under the act, which phraseology governs the operative portion of the proviso and..........panchayat union council, the commissioner or a person expressly authorised in this behalf by the panchayat, panchayat union council, executive authority or commissioner, but nothing herein shall affect the provisions of the code of criminal procedure, 1898 (central act v of 1898), in regard to the power of certain magistrates to take cognizance 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 purposes 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 may be made at any time within twelve months from the commencement of the.....
Judgment:

K.N. Mudaliyar, J.

1. The State appeals against the order of the District Magistrate (J), Tirunelveli, acquitting the respondent-accused of the offence under Section 82(1)(a) read with Section 181(2)(c) of the Madras Panchayat Act, 1958.

2. The respondent Vilakku Syed Ismail Nachi had occupied Panchayat street to the extent of 234 square feet in Kuthukal Street by constructing a portion of the house from 27th April, 1967. P.W. 1 issued notice for the removal of the said encroachment. She did not comply with the notice issued for the removal of the encroachment. P.W. 1 prosecuted her under Section 181 of Madras Panchayat Act. She admitted the offence in the Court of the Sub-Magistrate, Tiruchendur on 17th June, 1967. On 19th August, 1967 P.W. 1 issued through P.W. 3 notice marked Exhibit P-2. But that was refused by the respondent. The original was served on the respondent by affixture attested by the Village Munsif, P.W. 4. Exhibit P-2 is the duplicate copy of the notice served by affixture, with the Athakashi, Exhibit, P-4. Again the respondent did not comply with the notice for the removal of the encroachment. Ultimately, P.W. 1 filed the complaint on 19th September, 1967 which was taken cognizance of by the Court as a valid complaint on 20th September, 1967. On these facts, the trial Magistrate found the accused-respondent guilty of the offence ; but the District Magistrate (J) acquitted the respondent on the ground that the complaint filed on 19th September, 1967 was barred by limitation by reason of the fact that she was found guilty by the Sub-Magistrate, Tiruchendur on 17th June, 1967.

3. The learned Public Prosecutor argued that the acquittal of the respondent-accused is unjustified on the ground of proper construction of Sections 82(1)(a), 166 and 181(2)(c) of the Madras Panchayat Act, 1958. Section 82 embodied prohibition against obstructions in or over public roads, etc. The fact that the respondent-accused has encroached over the Panchayat land to the extent of 234 square feet remains uncontroverted. No person shall make any encroachment whatsoever whether permanent or temporary in or over public roads, except as permitted by rules made under the Panchayat Act and except in accordance with the conditions imposed by any licence made requisite by such rules.

4. Section 166 of the Panchayat Act, 1958, is extracted below.

Persons empowered to prosecute : Save as otherwise expressly provided in this Act, no person shall be tried for any offence against this Act or any rule or bylaw made thereunder unless complaint is made within three months of the commission of the offence, by the Police, the executive authority, the Panchayat Union Council, the commissioner or a person expressly authorised in this behalf by the Panchayat, panchayat union council, executive authority or commissioner, but nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898 (Central Act V of 1898), in regard to the power of certain Magistrates to take cognizance 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 purposes 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 may be made at any time within twelve months from the commencement of the offence.

The relevant part of Section 181(2)(c) reads as follows:

(2) Whoever after having been convicted of (c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under or in pursuance of any of the said provisions,

continues to contravene the said provision or the said rule or order, or continues to fail to comply with the said direction or requisition, shall be punishable for each day after the previous date of conviction during which he continues so to offend, with fine which may extend to the amount mentioned in that behalf in the fourth column of the said schedule.

5. The averment in Exhibit, P-1, that the respondent-accused constructed house encroaching the panchayat land on 13th April, 1967 is not disputed, i.e., the date of the commencement of the offence. The respondent pleaded guilty and she was convicted on 17th June, 1967. On 16th August, 1967 P.W. 1 issues Exhibit P-2 calling upon the respondent to remove the house constructed in a public road with a threat to take legal proceedings against the respondent under Section 181 (2) (c) for the respondent is continuing the said offence. It is on record that on 19th August, 1967 P.W. 3, the Maistry, brought P.W. 4, the Village Munsif to the house of the respondent and that the notice was affixed in the house of the respondent after the accused refused to receive the notice. Ultimately, the complaint was filed on 20th September, 1967 which was taken on file by the Sub-Magistrate, Tiruchendur.

6. The question that falls for consideration is now whether on a proper interpretation of Section 166 of the Madras Panchayats Act, 1958, the complaint filed on 20th September, 1967 is barred by limitation as contended for by the accused-respondent.

7. There is no doubt that this unauthorised encroachment of 234 square feet is a continuing offence within the meaning of the proviso to Sections 166 and 181 (2) (c). The expression ' continuing offence' has been defined in the following terms by a Division Bench of the Bombay High Court consisting of Gajendragadkar and Shah, JJ. in State v. Bhiwandiwalla : (1956)IILLJ153Bom .

The expression 'continuing offence' though not a very happy expression has acquired a well-recognised meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences.... In every case of a continuing offence it may be possible to describe the default as amounting to an omission or to a positive act on the part of the defaulter.

The same view appears to have been taken by a Full Bench of the Patna High Court in State v. Kunja Bekari : AIR1954Pat371 , It was held in that case that:

The expression ' continuing offence' means that, if an act or omission on the part of an accused constitutes an offence, and if that act or omission continues from day to day, then a fresh offence is committed on every day on which the act of omission continues.

Justice Sadasivan of the Kerala High Court has approved and followed the rationale of these two decisions. Applying this test, there is no difficulty in holding that the respondent-accused was committing a ' continuing offence' from 13th April, 1967, the date of the commencement of the offence, apart from the date of 17th June, 1967, the date of her conviction. When once it is held that the respondent-accused is guilty of continuing offence within the meaning of Section 166 of the Madras Panchayat Act, 1958, certainly P.W. 1 (the executive authority of the panchayat) has a right to make the complaint in time within 12 months from the commencement of the offence.

8. Mr. Ramaswami argued that the date has got to be reckoned from the date of conviction viz., 17th June, 1967 and that this would not fall within the meaning of failure to take out a licence or obtain permission under the Act, which phraseology governs the operative portion of the proviso and therefore the first part of Section 166 of the Panchayat Act, 1958 applies to the facts of this case. This argument is devoid of substance on a closer scrutiny. Section 82 contemplates the mandatory permission to be obtained by any person making any encroachment whatever. There is no doubt on the facts of this case that the accused-respondent did not obtain any permission from the executive authority of the panchayat. This would, in my opinion, certainly fall within the ambit of the phraseology ' failure to obtain permission under the Act'. If that be so and in my view it is undoubtedly so, the executive authority issued the necessary direction lawfully in Exhibit P-2. Mr. Ramaswami did not argue that Exhibit P-2 does not contain any direction lawfully given to him by the executive authority or any requisition lawfully made on him under the Act. Even the complaint mentions about the respondent-accused continuously contravening the Act even after her conviction. The complaint mentions Section 181 (2) (c) of the Madras Panchayat Act, 1958, in regard to the liability of the respondent for punishment. Section 181 (2) (c) mentions after the previous date of conviction when the accused is liable to be punished when she continues so to offend in not complying with any direction lawfully given to her or any requisition lawfully made on her. I hold that the complaint is not barred by limitation since the first part of Section 166 is totally inapplicable to the facts of this case. Both the learned Sub-Magistrate and the executive authority have properly conceived the scope and application of the relevant sections to the facts of this case.

9. The order of acquittal of the respondent is set aside. She is convicted under Section 181 (2) (c) of the Madras Panchayat Act, 1958 and sentenced to pay a fine of Re. 1 for each day of the continuing offence.

10. The learned Counsel for the respondent-accused states that the total number of days would amount to 187 days; that means that she is sentenced to pay a fine of Rs. 187, in default to suffer rigorous imprisonment for one month.

11. Time for payment--6 weeks.

12. The criminal appeal is allowed.


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