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TMI Blog1957 (3) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the Kalapahari Colliery. The second prosecution was for contravention of Sub-rule (a) of Rule 3 of the Mines Creche Rules. 1946 in respect of the Kalapahari Colliery and the third prosecution was for contravention of Sub-rule (a) of Rule 3 of the Mines Creche Rules., 1946 in respect of the Muslia Colliery. 3. It is the case for the prosecution that in the first case the pit-head bath, which is required to be constructed by the owners within a specified time was not constructed and there was thus a contravention of Sub-rule (1) of Rule 3 of the Coal Mines Pit-head Bath Rules. 1946. In the second and third cases the case for the prosecution is that in respect of the Kalapahari Colliery the Creches were not set up as required under Sub-rule (a) of Rule 3 of the Mines Creche Rules, 1946. 4. The defence of the petitioners in each of the cases was that they were not guilty and several points were raised during the trial as well as on appeal after conviction. As most of these points have been raised here before us I shall discuss these points one by one. 5. The three cases were disposed of by two Magistrates but the appeals were disposed of by one Judge. The findings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian Mines Act. This section is as follows: "73. Disobedience of orders. Whoever contravenes any provision of this Act or of any regulation, rule or bye-law or of any order made thereunder for the contravention of which no penalty is hereinbefore provided shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both, and, if the contravention is continued after conviction, with a further fine which may extend to one hundred rupees for each day on which the contravention is so continued." Then Section 79 of the Act lays clown the period of limitation in the following terms: "79. Limitation of prosecution.--No Court shall take cognizance of any offence under this Act, unless complaint thereof has been made-- (i) within six months of the date on which the offence is alleged to have been committed, or (ii) within six months of the date on which the alleged commission of the offence came to the knowledge of the Inspector, or (iii) in any case where a Court of inquiry has! been appointed by the Central Government under Section 24, within six months after the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... men and 4 for women. Category 'B' mine: 20 for men and 8 for women. Category 'C' mine: 24 for men and 10 for women. Category 'D' mine: 40 for men and 16 for women", "The Mines Creche Rules, 1946. 3. Provision of Creches.--(a) The owner of every mine shall construct thereat a creche in accordance with plans prepared in conformity with these rules and previously approved by the competent authority. Provided that where the competent authority is of the opinion that the situation, nature and extent of the workings or other places where women are employed are such as to render compliance with the provisions of the Rules not reasonably practicable the competent authority may by order in writing exempt any owner of a mine from the provisions of the rule for such period as may be specified in the order: Provided further that where an exemption is granted under this rule the competent authority may require, within such period as may be specified in the order, a suitable room or rooms with an attendant and other necessary equipments to be provided and maintained at or near any working place or part of the mine; (b) Such creche shall be constructed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is argued on behalf of the petitioners that as the pithead baths and the creches were to be constructed by the 23rd January, 1948 and the 23rd July, 1947, respectively, at the latest, the offence in each case was completed as soon as the relevant period expired and there could be no question of the continuation of the offences. Mr. Banerjee, on the other hand, argues on behalf of the State that the omission on the part of those on whom a statutory duty is imposed to carry out that duty, continues so long as the omission is not made good and Mr. Banerjee further argues that if it is a continuing offence there is a fresh start of limitation every day. 10. The question, therefore, has first to be considered whether the offence in these cases, an offence consisting of an illegal omission, is in reality a continuing offence and if it is a continuing offence whether there would be a fresh starting point of limitation every day, so that in fact there will be no limitation at all so long as the omission continues. The question whether an illegal omission is a continuing offence or not can hardly be answered in a summary manner without considering the nature of the duty imposed, the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he could construct the pithead bath or the creche. It does not seem to me to mean that once the date expires the duty ceases to exist because, as I have already said, the only reason why these rules require pithead baths and creches to be installed is to provide certain amenities to the miners for the preservation of their health and for the proper care of the children of the female miners and if without these amenities the miners cannot be expected to preserve their health and the children of female miners cannot be properly looked after while the mothers are engaged, the non-performance of the duty, which the law imposes on the owner, will result in the absence of the amenities required for the preservation of the health of the miners and for the proper care of the children of the female miners during a part of the day when the mothers are engaged and the evils, which these rules seek to combat will still be there. The mere fact, therefore, that the specified date within which the baths and the creches were required under the rules to be constructed expired cannot possibly mean that the duty of the owner ended with the expiry of the date. That duty still remains. It continues til ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution was launched and the question of limitation was raised at the trial and the prosecution sought to meet it by arguing that the case was one of a continuing offence and therefore the prosecution had a fresh starting point of limitation for each of such offences. His Lordship after referring to Section 488 (2) which says that "whoever after having been convicted of any offence referred to.....continues to commit, such offence shall be punished ....." says that a continuing offence is after a conviction for the original offence and not before it and if an offence is committed and the Corporation takes no steps it cannot come to Court for punishment for continuing offence and as in the present case there was no previous conviction there was no case for continuing offence. 13. In the third case the point decided was that the first conviction was a wrong conviction so that in the eye of law it was no conviction at all and that being so a conviction under Section 488(2) of the Calcutta Municipal Act, 1923 cannot be maintained. This throws no light whatever on the Question of limitation. 14. With due deference to their Lordships I must say that the view expressed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inspector, whichever is later. If the view that in the case of continuing offences there is a fresh starting point of limitation every day were to prevail, it will be a complete nullification of this provision, for in that case so long as the duty is left undischarged the prosecution will have the benefit of a fresh starting point of limitation every day. The question to be considered here is whether such a nullification of the provision of limitation was intended by the legislature. The prosecution in arguing this way really invoked the aid of the principles laid down in Section 23 of the Limitation Act without actually referring to it. That section is in the following terms: "Section 23.--In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues". A continuing offence is certainly a continuing wrong independently of contract so that if this section were applicable to the present cases the prosecution would undoubtedly be right in saying that there will practically be no limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sub-section (2) of Section 29 is of general application and is not limited to cases where any special or local Act prescribes for any suit, appeal or application a period of limitation different from the Period prescribed therefor by the first schedule. If that is so, Section 23 of the Limitation Act is clearly made inapplicable to cases where the period of limitation is laid down in special or local Acts. The Mines Act is certainly a special Act dealing with mines, so that Section 23 of the Limitation Act is expressly made inapplicable to cases under the Mines Act. That being so, the question arises whether the Court will be entitled to invoke the aid of the principles laid down in Section 23 of the Indian Limitation Act although that section is in express terms made inapplicable to such cases. Although the Limitation Act has made it inapplicable to certain cases, a special or local Act may, therefore, very well either make it applicable or may incorporate the principles enunciated there so as to make it applicable but that has not been done in the Mines Act. If a principle similar to the point enunciated in Section 23 of the Indian Limitation Act existed apart from and indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 3(a) of the Mines Creche Rules by the petitioners was a continuing one, and there can be no Question of the prosecution being barred under Section 42 of the Mines Act." With due respect to their Lordships of the Patna High Court I must say that the mere fact that an offence is a continuing offence does not solve the Question whether there is a fresh start of limitation on every day of the continuance of the offence unless We invoke the aid of the principle enunciated in Section 23 of the Indian Limitation Act and unless although that section has been expressly made inapplicable by Section 29(2), the Courts are still empowered to call in aid the principle of that section. Their Lordships do not appear to have considered this aspect of the matter at all with the result that they have not pointed out any principle or any authority that even though Section 23 of the Limitation Act has been made inapplicable to such cases the principle is still available for application thereto. In the absence of any such principle or authority I find it impossible to say that the principles enunciated in Section 23 of the Indian Limitation Act can be applied to such cases. The fact that the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be so deemed if he proves-- (a) that he was not in the habit of taking, and did not in respect of the matter in question take, any part in the management of the mine; and (b) that he had made all the financial and other provisions necessary to enable the manager to carry out his duties; and (c) that the offence was committed without his knowledge, consent or connivance. (3) Save as hereinbefore provided it shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act." The first sub-section of Section 18 makes the owner, the agent or the manager of every mine responsible for all operations, carried on in connection therewith and conducted in accordance with the provisions of the Act and of the regulations, rules or by-laws and of any orders made thereunder. Then the second sub-section provides that in the event of any contravention of any such provision by any person whosoever, the owner, agent and manager of mine shall each be deemed also to be guilty of such contravention unless he proves that he had taken all reasonable means by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson other than the owner, the agent and the manager, the owner, the agent and the manager shall be deemed also to be guilty. To my mind this is not quite correct. If the owner is guilty of the contravention independently of the provisions of Section 18 then of course in his case there is no question of constructive liability but in the case of the agent and the manager there-will be that question so that 'any person whosoever' does not necessarily exclude the owner, the agent and the manager. If the contravention is by the owner he will be liable even apart from the provisions of Section 18. If the contravention is by the manager he will be liable independently of this provision and if the contravention is by the agent. he will be liable apart from this provision but if any of these three is liable for the contravention apart from this provision the other two will be constructively liable so that the expression 'any person whosoever' cannot be taken to exclude the owner, the agent and the manager. Of course Sub-section (2) itself provides for this defence on the part of the owner, the agent or the manager that he had taken all reasonable, means by publishing and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue Section 18 it is necessary to refer to Section 17 also, which runs as follows: "17. Managers--Save as may be otherwise prescribed every mine shall be under one manager who shall have the prescribed qualifications and shall be responsible for the control, management and direction of the mine, and the owner or agent of every mine shall appoint himself or some other person having such qualifications, to be such manager." That the manager under Section 17 of the Mines Act is made responsible for the control, management and direction of the mines indicates sufficiently well that even for offences other than those committed by the manager himself, he would be responsible under the principle of constructive liability enunciated in Sub-section (2) of Section 18 and as the proviso makes a particular defence available to the owner or the agent and makes it expressly unavailable to the manager the reason for that must be that the manager can escape his liability only if he proves that he had taken all reasonable, means, by publishing and to the best of his power enforcing those provisions, to prevent such contravention and an additional defence which is thrown open by the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules framed under the new Act and the point raised by Mr. Mukherjee is that a law which really did not exist and which came into existence by means of a legislative fiction introduced by Section 10 (Sic-Section 24) or the General Clauses Act, would not be treated as a living piece of legislation the contravention, of which would be an offence. In support of this contention he has relied in the first place on a Supreme Court decision in the case of Shiv Bahadur Singh v. State of Vindhya Pradesh, and secondly on a decision of the Andhra High Court in the cass of Re, Lingareddi Venkatareddy, AIR 1956 Andhra 24 (H). In the case before the Supreme Court the case for the prosecution appears to have been that the accused entered into a conspiracy about the beginning of February, 1949 at Rewa within the United State of Vindhya Pradesh to obtain an illegal gratification for the purpose of revoking the previous order of stoppage of mining work and in pursuance of the said conspiracy one of them demanded on the 8th March, 1949 at Rewa illegal gratification from one, Nagindas Mehta, and that later on on the 11th April, 1949 another accused received a sum of ₹ 25,000/- towards it at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for violation of the rules made under the old Act was not permissible and their Lordships of the Andhra High Court after referring to Section 24 of the General Clauses Act under which any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions so re-enact-ed, ultimately hold that the phrase 'law in force' as interpreted by the Supreme Court in is conclusive against' the prosecution of the case before them, although their Lordships were not oblivious of the fact that the Supreme Court case referred to ex post facto legislation and ex post facto legislation only. In the case before the Andhra High Court as well as in the cases before us there is no question as to ex post facto legislation. When the Mines Act of 1923 was repealed in 1952 and replaced by the Act of 1952 under Section 24 of the General Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the agent and manager of a coal mine in respect of contravention of Rules regarding construction of creche and pithead baths prescribed respectively, in Mines Creche Rules. 1946 and Coal Mine's Pithead Bath Rules, 1946. I shall take up these two questions one after another. On the other questions raised in these Rules I am in agreement with the views expressed by my learned brother. 24. The facts leading up to the present Rules have been stated elaborately by my learned brother and I need not recapitulate them here, petitioners Nos. 1 to 4 of these Rules are admittedly owners of two collieries known as Kalipahari Colliery and Muslia Colliery. Petitioner No. 5, M. L. Daga, of the three Rules is the agent of the owners in respect of the above collieries. Petitioner no. 6, K. N. Nag of Revision Cases Nos. 297 and 304 is the manager of Kalipahari Colliery and petitioner No. 6 K. P. Chatterjee of Revision Case No. 303 is the manager of Muslia Colliery. It is an admitted fact that no pithead bath or creche was constructed in Kalipahari Colliery as required by the Rules to which I have already referred and no creche was constructed in the Muslia Colliery at least till the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re dated 6-12-1954--all the reports being within six months of the starting of the prosecution. Mr. Mukherjee appearing on behalf of the petitioners, however, satisfied us from the records that the Inspector had knowledge of these contraventions long before six months of the date of filing of the complaints and Mr. Banerjee appearing on behalf of the State was not in a position to controvert the correctness of that statement. The question is whether under such circumstances it should be held that the prosecutions are barred by limitation. 27. The lower appellate Court held on the authority of a Pull Bench decision of Patna High Court that the Prosecutions are not time-barred inasmuch as the contraventions which are the subject-matter for our consideration in these cases are in the nature of continuing offences, and as such offences continue from day to day a fresh offence is committed every day on which the act or omission continues and a fresh cause for complaint arises de die in diem and so no question of the prosecution being barred arises in such cases. The decision in the Patna Pull Bench case was given under the old Mines Act of 1923, Section 39 of which creates the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act in holding that the prosecution was not time-barred but they were not entitled to do this in view of Sub-section (2) of Section 29 of the above Act. 30. On the grounds mentioned above I am of opinion that the decision of the Pull Bench of the Patna High Court cannot be regarded as a correct decision. 31. Mr. Mukherjee on behalf of the petitioners challenged the correctness of the above decision on a third ground, viz., that the learned Judges were wrong in holding that an offence of the nature with which they were dealing and with which we are also concerned in the present Rules is a continuous offence. Mr. Mukherjee submitted that an offence of this nature can be regarded as a continuous offence only when there is some positive and fresh violation or infringement of any rule, or law from day to day. This point again has been considered elaborately by my learned brother who is of opinion that the offence in question is a continuous offence. I agree with this view of my learned brother arid I should only like to point out that there are indications in Section 73 of the Mines Act itself which would show that a contravention of any provisions of the Mines Act or of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 of the new Act read with Section 79 of the same makes it clear beyond doubt that after the contravention of any provision of the Mines Act or of any rule etc. prosecution must be launched against the offender or offenders within the period, of limitation prescribed in Section 79. The contravention may certainly continue but it is not open to the prosecution to select any particular date following the contravention and launch a prosecution within 6 months of that date on the footing that there was a fresh contravention on that date and that earlier contraventions should be ignored. In my opinion, if this were allowed to be done, Section 79 of the new Act of 1952 which provides a specific period of limitation would lose all its meaning. 33. Both Section 73 of the Mines Act of 1952 and 8 39 of the previous Act make continued contravention punishable with a further fine extending upto ₹ 100/- per day for each day on which the contravention is continued after the previous conviction of the accused. Both the sections are thus divisible into two distinct parts. The first part provides for punishment of a contravention which evidently signifies what I may conveniently call the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable. 35. In support of the above contention Mr. Mukherjee on behalf of the petitioners cited three cases before us, viz., ; and . I shall first of all deal with the last mentioned case. My learned brother does not think that this case is of much assistance to us. Unfortunately, I do not share this view. This case is relevant for our purpose not so much on the question of limitation as on the question whether in the absence of a previous conviction for the original or primary contravention, a prosecution can be launched outside the period of limitation on the ground of continued contravention of some statutory rules, where such continued contravention has been made punishable only after a conviction for original contravention of the rules. The case , involved a prosecution under the Calcutta Municipal Act for running a private market without a license, In order to understand the scope and import of this judgment it is necessary to quote Section 534(1) and Section 488 (2) of the above Act. They run in the-following terms: "Section 53(41). No person shall be liable to punishment for any offence against this Act or against any rule or bye-law made thereunder, unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions along with the owner. Although it is not necessary to deal, with this matter after our finding that the prosecutions are barred by limitation, yet I shall give my views en this question because this matter was argued by both sides and because my learned brother has expressed his views thereon which I am not in a position to share. 39. As to the guilt of the owner there cannot be any question because the Mines Creche Rules and Coal Mines Pithead Bath Rules enjoin on the owner to construct a creche and a pithead bath within a prescribed time and when that is not done, it must be held that the owner is guilty of contravention of the rules under Section 73 of the Mines Act 1952. The liability of the agent and of the manager may arise only constructively under Section 18 of the Act. Sub-section (1) and Sub-section (2) minus the proviso of Section 18 are relevant for our consideration and they run in the following terms: "Section 18(1). The owner, agent and manager of every mine shall be responsible that all operations carried on in connection therewith are conducted in accordance with the provisions of this Act and of the regulations, rules and bye-laws and of any orders m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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