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TMI Blog1989 (7) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) and under section 220(3) of the Companies Act are "continuing offences" within the meaning of section 472, Criminal Procedure Code. An affirmative answer will warrant the discharge of the rules ; but a negative answer would require us to make the rules absolute and quash the prosecutions. We have decided to return an affirmative answer both on principle as well as on authorities. Here are the reasons. The expression "continuing offence", far from being a stranger, was quite a regular visitor to our criminal domain, particularly in respect of offences which are not mala in se, but are only mala prohibita, e.g , running a factory without a proper licence or using a structure erected without the necessary permission or a proper plan and the like ; but, after the passing of the Code of Criminal Procedure, 1973, it has now become a permanent entry in our criminal jurisdiction in view of section 472 of the Code and applies to all offences, whether mala in se or mala prohibita, which are punishable with fine only or with imprisonment for a term not exceeding three years. The expression "continuing offence" or "continuous offence" does not appear to have any fixed concept; its mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted, it is no longer in the power of the offender to effect its continuance or discontinuance, the offence cannot be said to be a continuing one. From that point of view, an offence committed as a result of failure to submit return, balance-sheet, profit and loss account or other documents within the date or period prescribed therefor, as required under section 160, 161 or 220 should not, ordinarily, be a continuing offence, but an offence completed on the expiry of the date or the period. Because, once documents are not submitted and the period prescribed for their submission has expired, it is no longer in the hands of the defaulter to continue the default or to discontinue the same. The default already being complete, the defaulter could not continue to do or repeat that very default any more or undo it. The decision of the Supreme Court in State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908 ; [1973] Cri. LJ 347 is a clear authority for the view that when law requires submission of returns within a certain period, and there is failure to do so, such non-compliance is ordinarily complete on the expiry of the period and is not a continuing offence. That was a case unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court decision in Deok aran Nenshi [1973] Crl. LJ 347 ; AIR 1973 SC 908, the failure to submit the annual return within the prescribed period was held not to be a continuing offence because, as already noted (at page 910 of AIR 1973 SC and at page 349 of Crl. LJ), there was nothing in the relevant law making the penal liability continue as long as the default in filing the return continued. This Supreme Court decision in Deokaran Nenshi, AIR 1973 SC 908; [1973] Crl. LJ 347, therefore, should be treated as an authority for the view that, if the penal liability for the default is continued and continuance of the default is also made punishable, say, with fine for each day of such continuance, as in section 162(1) of the Companies Act, the offence would be a continuing one. It must be noted, however, that, in the later decision of the Supreme C ourt in Bhagirath Kanoria, AIR 1984 SC 1688 ; [1986] 68 FJR 98, failure to pay the employer's contribution under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, within the time prescribed therefor has been held to be a continuing offence. A number of decisions of different High Courts, including two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch should ordinarily and, as far as possible, follow decisions rendered by Benches of co-ordinate jurisdiction, we would have to govern ourselves accordingly unless we can justify our departure. The Divison Bench decision in National Cotton Mills v. Assistant Registrar of Companies [1984] 56 Comp Cas 222 (Cal) ; [1984] Tax LR 2043 appears to be one directly on the point holding that an offence under section 162(1) of the Companies Act, 1956, is not a "continuing offence" within the meaning of section 472, Criminal Procedure Code, and, therefore, a complaint therefor would be barred by limitation under section 468(2), if filed beyond the period prescribed. The Division Bench appears to have relied mainly on the Supreme Court decision in Deokaran Nenshi [1973] Crl LJ 347 ; AIR 1973 SC 908 and also on two earlier Division Bench decisions of this court in Wire Machinery Manufacturing Corporation v. State [1978] Cal HN 293 ; [1978] Crl LJ 839 ; [1979] 49 Comp Cas 197 and in Krishna Kumar Dalmia v. State [1981] 2 Cal HN 301, both being decisions under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. In both these earlier Division Bench decisions, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , prohibiting erection of a building on the side of a new street in certain circumstances and providing penalty for such erection and a further penalty for every day during which the offence would continue, it was held that, while the offence of erection of the building was complete with its erection, its continuance made punishable de die in diem was a continuing offence. In fact, this is in perfect consonance with the observation made in Deokaran Nenshi, AIR 1973 SC 908, 909 that a continuing offence "is one of those offences which arise out of failure to obey or comply with a rule or its requirement and which involve a penalty the liability for which continues until the rule or its requirement is obeyed or complied with". We would like to think that the offences punishable under section 162(1) and also section 220(3) of the Companies Act squarely come within this principle, as they arise out of failure to obey or comply with the provisions of sections 159, 160, 161 and 220(1) requiring submission of returns, balance-sheet and other documents and which, as the penal provisions therefor in section 162(1) provide in express terms, involve a penalty of daily fine the liability for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1984 SC 1688, 1692 ; [1986] 68 FJR 98, 105, we would have to hold the offences under section 162(1) and section 220(3) to be continuing offences and would hold further, and this we say with all respect, that the decision of the Division Bench in National Cotton Mills [1984] 56 Comp Cas 222 (Cal) can no longer be taken to be good law, particularly in view of the earlier Division Bench decisions in Wire Machinery [1978] Crl LJ 839 ; [1979] 49 Comp Cas 197 and in Krishna Kumar [1981] 2 Cal HN 301 relied on in National Cotton Mills [1984] 56 Comp Cas 222 (Cal), having been overturned by the Supreme Court and the earlier decision of the Supreme Court in Deokaran Nenshi, AIR 1973 SC 908 ; [1973] Crl LJ 347, referred to therein, having been duly explained and distinguished by the Supreme Court in Bhagirath Kanoria, AIR 1984 SC 1688 ; [1986] 68 FJR 98. The Division Bench in National Cotton Mills [1984] 56 Comp Cas 222 (Cal) could not obviously consider the Supreme Court decision in Bhagirath Kanoria, AIR 1984 SC 1688 ; [1986] 68 FJR 98 as the latter was decided later. But there appears to be yet another Division Bench decision of this court in Eastern Paper Mills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his own opinion. To take such a view is to hold that the judge may be reduced to an automaton by the production of an earlier judgment". Now, the decision in Eastern Paper Mills [1988] Cal Crl LR (HC) 176, having been decided on May 13, 1988 (and reported obviously later), cannot be regarded to have stood for such length of period so as to attract the first factor referred to in those observations. And we may add, obviously with great respect, that the decision, after referring to the Supreme Court decisions in Deokaran Nenshi, AIR 1973 SC 908 ; [1973] Crl LJ 347 and in Bhagirath Kanoria, AIR 1984 SC 1688; [1986] 68 FJR 98, has not spelt out any adequate reasons as to how those two decisions, under two other different enactments, could lead us to hold that the offences under section 162(1) and section 220(3) of the Companies Act are not continuing offences. No notice at all appears to have been taken of the observation in Deokaran Nenshi, AIR 1973 SC 908, 909 that a continuing offence "is one of those offences which arises out of failure to obey or comply with a rule or its requirement and which involves a penalty the liability for which continues until the rule or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below for disposal of the cases as expeditiously as possible and in accordance with law. A.K. Nandi J. I have had the advantage of going through the judgment of my learned brother Bhattacharjee J. While agreeing with the process of his reasoning and the conclusion arrived at, I prefer to add a few lines to express views of my own. No precise definition of a continuing offence has been given in any statute, and the Supreme Court has held that it is not possible either to give a precise definition. Nevertheless, it has been sought to be defined in different judgments of the Supreme Court as also of the High Courts. Bhattacharjee J. has dealt with different decisions in his judgment. 1 shall deal with some of them only in order to express as to how I have understood them. In State of Bihar v. Deokaran Nenshi, AIR 1973 SC 908 ; [1973] Crl LJ 347, it was held that an act which continued constituted a fresh offence everyday on which it continued. A distinction is sought to be struck down an offence committed once and for all and a continuing offence. If law does not render a continued disobedience or non-compliance an offence, it is not a continuing offence. In order to const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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