L.N. Chhangani, J.
1. This is an appeal by the Municipal Council, Ganganagar, on leave granted under Section 417, Sub-section (3), Criminal P. C., and is directed against the appellate order of the Sessions Judge, Ganganagar, dated 23rd of February 1963, by which he accepted the respondent Ravatram's appeal, set aside his conviction under Section 203 of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred as the Act) and acquitted him of the offence.
2. The facts leading to the appeal are not in controversy and lie in a very narrow compass. On behalf of the Municipal Council, Ganganagar, a complaint dated 2nd November 1961, was presented in the Court of Sub-Divisional Magistrate, Ganganagar, for respondent's prosecution under. Section 203 of the Act. It was alleged that the respondent made an encroachment by constructing a room and a compound wall around the room in Harijan Colony Ward No. 18. It was further stated in the complaint that the respondent had been previously prosecuted in the Court of Sub-Divisional Magistrate and was fined Rs. 20/- on 25th May 1959. This complaint was transferred to the Court of Tehsildar and Magistrate Second Class, Ganganagar. The accused was examined on 11th of August 1962, and his plea was recorded. He admitted that he had made an encroachment but pleaded that the encroachment had been made six or seven years before. Thereafter, the Municipal Council examined one witness Kishanlal P. W. 1 on 19-9-1962. The accused also examined two witnesses Chothuram D. W. 1 and Moolaram D.W. 2 on 3-10-1962. The Magistrate after considering the evidence of the parties found the accused guilty under Section 203 of the Act and convicted him for that offence and sentenced him to a fine of Rs. 20/- by his order dated. 25-10-1962. He also gave a direction in his order that the accused-respondent would remove the encroachment within three months.
The respondent filed an appeal in the Court of Sessions Judge, Ganganagar. The Sessions Judge found that the Magistrate had not stated any date of the commission of the offence in his judgment. Before him the counsel for the parties agreed that the encroachment had been made more than six months before the date of the filing of the complaint. He, therefore, held that the prosecution of the respondent was barred under the proviso of Section 265 of the Act. In arriving at this conclusion the learned Sessions Judge held in the first instance that the encroachment was not a continuing offence and secondly, that proviso to Section 265 of the Act applied to cases of continuing offence. He accordingly accepted the appeal and set aside the conviction of the appellant (respondent here) and acquitted him.
3. The counsel for the respondent in the first instance raised a preliminary objection that the present appeal is clearly time barred and deserves to be dismissed on that ground. The facts necessary for the disposal of the preliminary objection are briefly these -
The order of acquittal was pronounced by the Sessions Judge on 23rd of February, 1963. The appellant submitted an application for leave to appeal under Section 417, Sub-section (3), Criminal P. C. on 3rd of May, 1963. In the application for leave the grounds on which the order of acquittal was sought to be challenged were mentioned in sufficient detail. The applicant however, omitted to enclose a separate memorandum of appeal along with the petition for leave to appeal. However, the appellant filed a separate memorandum of appeal on 30th of August, 1963. This Court granted leave to appeal on 19th September, 1963. From the above statement it is obvious that the memorandum of appeal filed on 30th of August, 1963 was certainly after the expiry of three months from 23rd February, 1963, the order of acquittal, and it is this fact which is being emphasised by the counsel for the respondent for his contention that the appeal should be treated as time-barred under Article 157 of the Limitation Act of 1908 which was then in force.
4. Before I proceed to refer to the submissions of the learned counsel for the respondent, it will be proper to notice the statutory provisions relevant for the determination of the question. Section 417, Sub-sections 3 and 4, Criminal P. C. read as follows :
Section 417 (3)
'If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.' Section 417 (4)
'No application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal.' Article 157 of the Limitation Act, 1908 reads as follows : 'Under the Code of Criminal Procedure, 1898, from an order of acquittalThree monthsThe date of the order appealed from.'
5. The learned counsel for the respondent contends that the provisions of Article 157 which are clear and unambiguous cannot be avoided by the complainant. The appeal as required by this Article, must be presented within 3 months of the date of the order of acquittal. Since the present appeal was not filed within 3 months of the order of acquittal it must be held time barred. In dealing with this contention, it will be proper to mention a few important facts. At the time when the Limitation Act, 1908 including Article 157 was enacted, the Criminal Procedure, as it then stood, had provisions for appeals against acquittals by the State. There was no provision in the Code for an appeal by a complainant on leave obtained by the High Court. Article 157 thus provided period of limitation for appeals against acquittal which were then permissible and there was no occasion for making provisions for appeals to be filed on leave obtained from the High Court.
It was only by the Amending Act No. XXVI of 1955 that Section 417 of the Criminal P. C. was substantially amended and some provision was made for appeal by complainant on leave to be obtained from the High Court. The relevant provisions in this behalf are Sub-sections 3 and 4 of the section which have already been reproduced above. When this provision for appeal by a complainant in certain cases was introduced, the legislature thought it proper to provide for special law of limitation in this connection. By Sub-section 4 the legislature provided 60 days limitation for an application for leave to appeal. No provision was, however, made to prescribe the period of limitation within which an appeal could be filed after the grant of leave by the High Court. In this state of affairs two rival views could be and have been expressed. The respondent contended that Article 157 should govern such cases and the appeal must have been filed within three months of the date of the order of acquittal. In this connection the learned counsel referred to the practice under which memorandum of appeals are filed along with the application for leave to appeal. Besides, it was contended that Article 157 is very widely worded and any appeal against acquittal including the appeal provided for by Sub-section 3 of Section 417, Criminal P. C. must be governed by its provisions. The other view is that while providing for appeal on leave under Subsection 3, the legislature enacted the special law of limitation in Sub-section 4 and that special law should govern the case and oust the applicability of the general law of limitation. In this connection, reliance is placed upon the language of Sub-section 3 which contemplates the presentation of appeals only after the grant of leave.
8. I have considered very carefully the relevant provisions and am inclined to come to the conclusion that Article 157 of the Limitation Act cannot be attracted in the present case. Under Sub-section 3 of Section 417, the grant of special leave is a condition precedent to the presentation of the appeal by the complainant. Naturally, there can be a proper and effective presentation of the appeal only after the grant of leave. There may be presented along with application for leave to appeal memorandum of appeal but that memorandum of appeal cannot be treated to have been validly or effectively presented under Subsection 3. The application for leave to appeal can be presented within 60 days of the date of the order of acquittal. It cannot be presumed that such application would be disposed of within a period of three months from the date of the order of acqutital or within a period of one month from the last date for presenting application for leave to appeal. If it is held that the appeals under Sub-section 3 must be filed within three months of the date of acquittal, many of the appeals would have to be rejected as time barred on account of non-disposal of the application for leave to appeal in this Court within the period of limitation. This certainly leads to anomalous and absurd results and the legislature cannot be presumed to contemplate such anomalous results.
The proper and the reasonable view to take in the circumstances is that Sub-section 4 of Section 417 provides for a special law of limitation for application for leave to appeal. The legislature did not think it proper to prescribe any separate period of limitation for appeals to be presented in pursuance of the orders of grant of leave to appeal. The legislature might have very well contemplated that an appeal will be presented within a reasonable period from the date of the order. In this connection it will be proper to refer to Rule 9 of Order XXI of the Supreme Court Rules, 1950. Under that rule, as soon as the leave is granted the application for leave to appeal itself is treated as appeal itself. On the basis of the principle behind the rules of the Supreme Court it may be reasonably inferred that the legislature at that stage did not think it proper to provide for, limitation for appeals pursuant to the orders of limitation and either contemplated the applications for leave to appeal would themselves be treated as appeals or that appeals would be filed within a reasonable period of the date of the grant of leave. In taking this view, I am supported by the policy of the legislature as indicated in the subsequent amendment of the law on the point in the Limitation Act of 1963. Article 114 of the Limitation Act of 1963 makes provision for appeals against acquittal and reads as follows :
Description of AppealPeriod of limitation.Time from which period begins to run.
114.Appeal froman order of acquittal--Ninety days.The date of the order appealed from.(a) under subsection (1) or sub-section (2) of section 417 of the Code of Criminal Procedure, 1898;
(b) under subsection (3) of section 417 of that Code.Thirty days.The date of the grant of special leave.
Under this Article, appeals have been treated under two categories-
1. Appeals from order of acquittal under Subsection (1) and Sub-section (2) of Section 417, and
2. the period of limitation prescribed for such appeals is 90 days from the date of the order appealed from.
3. For the second category of appeal, 30 days time has been provided from the date of the grant of the special leave.
Thus, on a proper consideration of the relevant provisions of the Criminal Procedure Code and the law of limitation and the legislative policy, I have no hesitation in corning to the conclusion that Article 157 of the Limitation Act cannot be relied upon for treating this appeal as time barred. Even if this Article is held to apply, I will invoke Section 5 of the Limitation Act for entertaining the appeal even after the expiry of limitation. The learned counsel for the respondent contends that there is no sufficient cause for the delay in filing the appeal and the appellant has placed no facts for holding that he was prevented by a sufficient cause.
The relevant facts may be recalled at this stage. The order of acquittal having been passed on 23rd of February, 1963, the appellant presented an application for leave to appeal within the prescribed time setting forth the grounds to challenge the order of acquittal. Even when this application was still pending and before its disposal, on 30th of August, 1963, the appellant presented a memorandum of appeal. The presentation of the memorandum of appeal was some time prior to the order granting leave. It appears to me that the learned counsel for the appellant was led to adopt this course on account of the ambiguous legal position in this behalf and this, in my opinion, should be treated as sufficient cause. The expression 'sufficient cause' has been deliberately left undefined and flexible by the legislature and it will be hardly proper to introduce rigidity in this expression. The expression 'sufficient cause' should be permitted to be developed by judicial inclusion or exclusion.
In these circumstances, I have considered it unnecessary to refer to the cases sought to be cited by the learned counsel for the respondent. The preliminary objection as to the bar of limitation against the appeal itself must fail and is hereby rejected.
7. Coming to the merits of the appeal, it may be stated at the outset that the parties are not at controversy so far as the factual position is concerned. The respondent admits that he encroached upon open space in the Harijan colony and the appellant admits that the encroachment took place some 6 to 7 years before the institution of the complaint. The crucial question for determination is whether the presentation of a complaint 6 or 7 years after the encroachment is barred by the proviso to Section 265 of the Act. At this stage, the provisions of Sections 203 and 265 of the Act so far as relevant for the purposes of this appeal, may be reproduced :
'203. 3. Whoever, not being duly authorised 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 an 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:'
'265-Proviso
Provided that no prosecution for an offence under this Act or rule or bye-law framed thereunder shall be instituted except within six months next after the commission of such offence.' In the light of the arguments advanced at the Bar two questions call for determination:--
1. Whether the proviso to Section 265 of the Act makes no distinction between the continuing offence and a non-continuing offence and requires that even a complaint in respect of a continuing offence should be brought within six months of the first contravention.
2. Whether the encroachment in the present case is a continuing offence or not.
The learned Judge of the appellate Court emphasised the difference in the language of Section 318 of Assam Municipal Act, 1923, providing for separate starting points for limitation for non-continuing offence and continuing offence and the language of the proviso to Section 265 of the Rajasthan Municipalities Act and appears to have taken the view that proviso to Section 265 applies to all offences irrespective of whether they are continuing or not. It appears to me that the learned Sessions Judge has not properly understood the conception underlying the expression 'continuing offence'. The expression 'continuing offence' has been the subject-matter of discussion in a number of cases and it will be useful to refer to a few of them.
8. In the State v. Kunja Behari Chandra, AIR 1954 Pat 371 (FB), a Full Bench of the Patna High Court stated that the expression 'continuing offence' means that, 'if can 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 or omission continues.' These observations were no doubt made in connection with the prosecution under the Mines Act but the observations made with regard to continuing offences are of a general nature and can apply with equal force to contraventions of offences under the Municipal Act.
9. The expression 'continuing offence' also came up for consideration before a Division Bench of the Bombay High Court presided over by Gajendragadkar and Shah JJ. as they then were in State v. Bhiwandiwalla, (S) A I R 1955 Bom 161. Gajendragadkar J., after referring to certain observations of Beaumont C. J., stated the position in the following terms-
'Even so, this 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 we may have offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences.'
It is evident from the observations extracted above that continuing offence is an offence 'de die in diem' and that in other words, the offence is 'committed from day to day. If this is the meaning, I see no reason why the prosecution for fresh offence committed within a period of six months from the date of the institution of the complaint should be barred under the terms of the proviso to Section 265. The fact that the Assam Legislature made provision for both 'continuing and non-continuing offences' may have been by way of abundant caution but the presence of distinction in the Assam Municipal Act and absence in the Rajasthan Municipalities Act is hardly a sufficient factor for ignoring the well recognised settled conception behind the expression 'continuing offence' and to hold that the proviso to Section 265 must also bar prosecution for day to day offences committed in connection with what may be called 'continuing offence'. In this view of the law, I do not accept the interpretation of Section 265 adopted by the Sessions Judge and hold that the proviso does not bar prosecution in respect of continuing offences.
10. The next question is whether encroachment on open space in contravention of the provisions of the Municipal Act is a continuing offence or not. It may be generally stated that in the absence of statutory provisions to the contrary in an enactment the question whether an encroachment is a continuing offence or not, cannot be answered in the abstract and must depend upon the facts of individual cases. It will be useful in this connection to refer to the judgment of their Lordships of the Supreme Court in Balkrishna Savalram Pujari Waghmare v. Shree Dhyaneshvyar Maharaj Sansthan, AIR 1959 SC 798. Dealing with Section 23 of the Limitation Act which provides for torts and breach of contract constituting continuing wrongs, Gajendragadkar J. as he was then, speaking on behalf of the Court, laid down the position as follows :
'It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.' At a later stage it was observed : 'There can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of Section 23 in such a case.'
The principle behind the observations extracted above made in relation to breaches of contract and civil wrongs independent of contracts is equally applicable to the cases of continuing offences as held in State v. Umashanker, AIR 1962 Madh Pra 311. On the basis of the principles laid down in the above case the learned counsel for the respondent contended that the encroachment in the present case cannot be treated as a continuing wrong and a continuing offence. Had it not been for specific provisions of Section 203 the contention of the learned counsel for the respondent would have certainly prevailed. Different position is, however, brought about by the provisions of Section 203. Section 203 of the Act provides for the imposition of the daily fines in cases of encroachment continuing after the 1st date of conviction. On the language of Section 203, Sub-section (3) the learned counsel for the appellant appears to be right when he submits that encroachment has been made a continuing offence absolutely by the legislature irrespective of the general considerations indicated in AIR 1959 S C 798. In support of this conclusion, reference may be made to Hurmat v. Emperor, AIR 1932 All 109 and Velayudam Servai v. Special Officer, Panchayat Board, Ramnad, AIR 1944 Mad 134. In AIR 1932 All 109, Sulaiman J. delivering the judgment of the Division Bench of the Allahabad High Court observed that the expression ''first conviction' suggests that the recurring fine is to be imposed on the second conviction. To the same effect is the view taken in the second case.
11. In the light of the principles laid down in the case referred to above and on the language of Section 203 of the Act, I have no hesitation in coming to the conclusion that encroachment has been made a continuing offence and that it is an offence in 'de die in diem' and that prosecution for an offence arising, out of encroachment cannot be barred under the proviso of Section 265 of the Act.
12. The learned counsel for the respondent raised an argument that if this view is held it will be open to the Municipal Council to prosecute persons in encroachment even after the expiry of very long periods. The answer to this argument is that if under any law relating to prescription the person encroaching upon the land acquires rights in the property and the rights in favour of the Municipal Council are extinguished at that stage encroachment will cease to be an encroachment and there should be no prosecution. On this view of the matter, there can be no anomaly in adopting the contention canvassed on behalf of the appellant.
13. In the light of the above discussions, I hold that the proviso to Section 265 of the Act, does not bar prosecution in respect of continuing offence and that encroachment is a continuing offence under the provisions of the Rajasthan Municipalities Act. In this view of the law, the respondent, in my opinion, is guilty of an offence under Section 203 of the Act. The trial Magistrate was right in convicting him. The Sessions Judge Ganganagar went wrong in setting aside the conviction and acquitting him. The appeal is, therefore, allowed, acquittal of the respondent is set aside and his conviction by the trial Court under Section 203 of the Act is restored.
14. In the end the counsel for the respondent pointed out that the direction contained in the order of the trial Magistrate for the removal of the encroachment is not warranted by the provisions of| Section 203 of the Act. The learned counsel for the appellant concedes to it. That direction does not appear to be sustainable in law and is quashed.
15. The counsel for the respondent prays for leave to appeal to the Supreme Court. I do not see any good ground to grant the leave applied for. The prayer is rejected.