Judgment:
Navin Chandea Shaema, J.
1. I have heard Shri R. P. Garg, appearing for the petitioner, Beguram.
2. Facts in brief are that Beguram was employed as fitter (maintenance) in M/s. Jaipur Udhyog Ltd., Sawai Madhopur. He retired on September 7, 1978, but did not vacate the free quarters of the company bearing No. 101/ 200 which had been allotted to him while he was in service. Consequently, Jaipur Udhyog Ltd. filed a criminal complaint against the petitioner in the court of the Chief Judicial Magistrate, Sawai Madhopur, for the offence under Section 630(1)(b) of the Companies Act. The Chief Judicial Magistrate, Sawai Madhopur, by his judgment dated September 11, 1986, held the petitioner guilty of the said offence and punished him with a fine of Rs. 200. Along with this sentence, the Chief Judicial Magistrate also passed an order under Sub-section (2) of Section 630 of the Companies Act ordering the petitioner to deliver up the said quarters to M/s. Jaipur Udhyog Ltd. within three months of the date of his judgment and in default thereof, the petitioner was to undergo simple imprisonment for a term up to two months. Against this conviction and sentence, the petitioner filed Criminal Appeal No. 53 of 1986 before the Sessions Judge, Sawai Madhopur. Along with the appeal, he filed an application under Section 389, Criminal Procedure Code, for suspension of the sentence and also of the order passed by the Chief Judicial Magistrate under sub-section (2) of Section 630 of the Companies Act.
3. The first contention advanced by Mr. Garg is that Section 630 of the Companies Act is only applicable with respect to movable property because Sub-section (2) of the said section used the words ' deliver up ' or 'refund' and these words, according to him, can relate only to movable property. There is no force in this contention. The word 'property'used in Section 630 of the Companies Act includes within its purview both movable as well as immovable property and there are no words, express or implied, in this section which can restrict the application of the word 'property' to only movable property. The words ' deliver up ' very well applies to the delivering up of the possession of immovable property. These words are, on the other hand, indicative of the fact that immovable properties are also covered in the scope of Section 630 of the Companies Act.
4. The next contention of Mr. Garg was that the petitioner had retired from the service of the company on September 1, 1978, and he continued to occupy the quarter No. 101/200 even after his retirement. According to him, the offence was committed by the petitioner on September 1, 1978, when despite his retirement from the employment of the company, he did not deliver, possession of the quarter which had been allotted to him. Learned counsel relied on Section 468(2) of the Criminal Procedure Code and contended that the period of limitation for taking cognizance of the offence which was punishable with fine only was six months, and, therefore, the Criminal Complaint No. 226 of 1982 filed by M/s. Jaipur Udhyog Ltd. was barred by limitation. I equally do not find any force in this contention. The petitioner was allotted the company's quarter No. 101/200 free of any rent so long as he was in the employment of the company. It was a case where the petitioner having been in possession lawfully of the said quarters up to September 1, 1978, wrongfully withheld the possession of the quarters. After September 1, 1978, the occupation by the petitioner of the quarters was in the capacity of a trespasser. Trespass is a continuing offence, and the matter is covered by Section 472 of the Criminal Procedure Code which expressly provides that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of time during which the offence continues. Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. Trespass is susceptible of continuance and does not end on the date on which it is initially committed.
5. The last contention of learned counsel for the petitioner was that the Sessions Judge, Sawai Madhopur, was under a duty to suspend the order in pursuance of section 389, Criminal Procedure Code, and he urged that the word ' may ' used in Section 389(1), Criminal Procedure Code, should be interpreted as containing a mandatory provision. There is no force in this argument also. Section 389, Criminal Procedure Code, gives discretionary power to the appellate court and the discretion has to be exercised judicially. Admittedly, the petitioner had retired from the employment ofthe company on September 1, 1978, and it would amount to giving him a reward for his trespass if he is allowed to continue a moment more. The Sessions Judge was right in rejecting the application of the petitioner under Section 389, Criminal Procedure Code. This petition has no merit in it and it is hereby dismissed.