JUDGMENT : ( 1. ) THIS order shall also govern the disposal of Cr. Revision no. 84 of 1980 (The Mandsaur Electric Supply Co. Ltd. Mandsaur v. Madhya pradesh Government Eke. Department) as both these revisions arising between the same parties raise a common question of law about limitation. ( 2. ) THE facts, giving rise to these petitions, are as follows: That the the petitioner Mandsaur Electric Supply Co Ltd. , is a limited Company of which other accused are the Directors and Office Bearers. This company was incorporated in 1938 with various objects, one of them being to generate and distribute electricity at Mandsaur for which they were granted a license by the erstwhile Gwalior State. That after the formation of M. P. the work of generation of electricity was discontinued and only distribution was continued. That in 1971-72 the State Government acquired and took possession of the power house and its assets. ( 3. ) ACCORDING to the M. P. Government Notification dated 21-11-1957, it was incumbent upon the petitioner-accused persons to submit their yearly statements of accounts to the Chairman of the M. P. Electricity Board by 30th September every year, after the close of the financial year of 31st March. The accused persons failed to submit the yearly account for the year 1972-73, which they should have submitted by 30th September, 1973 to the Chairman m. P. Electricity Board, despite repeated demands made by the Government and the Electricity Board. The State Government by its memo dated 24-7-1973 directed the accused persons to get their accounts audited by m/s. D. C. Jain and Co. but they failed to get the same audited. A prosecution was, therefore, launched against the accused persons for violating the provisions of section 11 read with Part II of the Schedule of the Indian electricity Act, 1910 and further read with Rule 26 of the Indian Electricity rules, 1956 punishable under section 47 of the Indian Electricity Act read with Rule 141 of the Electricity Rules, 1956. On these facts a complaint bearing Cr. Case No. 236 of 77 was filed in the Court of the Chief Judicial magistrate, Mandsaur on 5-2-1977. ( 4. On these facts a complaint bearing Cr. Case No. 236 of 77 was filed in the Court of the Chief Judicial magistrate, Mandsaur on 5-2-1977. ( 4. ) SIMILARLY another prosecution was launched against these accused persons on 2-5-1977 in the same Court on an allegation that the accused persons had charged their customers more than the reasonable returns between the year 1955-56 to 1969-70 as found by the Rating Committee in pursuance of which the State Government had directed the Company by its letter dated 4-10-1974 to distribute the same to the consumers which the petitioners failed to do. Therefore, for violating the provisions of section 57a of the Electricity (Supply) Act, 1948 read with Schedule VI, Part II thereof, punishable under section 47 of the Indian Electricity Act, 1910 this prosecution was launched as the petitioners had defaulted in making the payment to the tune of Rs. 243522. 75 to its consumers. This criminal case was numbered as 863 of 1977. ( 5. ) IN both these cases a preliminary objection was raised on behalf of the petitioners that the prosecution launched was barred by limitation in view of the provisions of section 468, Code of Criminal Procedure, 1973 as, considering the sentence of fine of Rs. 100 provided in section 47 of the indian Electricity Act, the prosecution ought to have been filed within six months from the date of the offence as per section 468 (2) (a), Criminal procedure Code and consequently complaints having been filed beyond the prescribed period of limitation of 6 months, from the date of the offence, the trial Court was barred from taking cognizance of these offences. ( 6. ) IN reply, it was urged on behalf of the respondent-State that the offences being continuing one as contemplated by section 472, Criminal procedure Code there was no bar of limitation and even if it is barred by limitation, still this was a fit case where the delay should be condoned as provided by section 473, Criminal Procedure Code. ( 7. ) THE learned Magistrate, after hearing the parties upheld the said preliminary objection and discharged the accused persons in both these cases. Against these orders the respondent-State filed Crimina Revision no. ( 7. ) THE learned Magistrate, after hearing the parties upheld the said preliminary objection and discharged the accused persons in both these cases. Against these orders the respondent-State filed Crimina Revision no. 104 of 1978 and Criminal Revision No. 105 of 78 which were allowed by the lower Revisional Court by its order passed on 17th December, 1979 and 31st December, 1979 by holding that the offence being a continuing one there was no bar of limitation and consequently remanded both these cases to the trial Court for disposal according to law. Being aggrieved the petitioner-Company has filed these two revisions separately. ( 8. ) IT is not in dispute that the Company had to submit their accounts for the year 1972-73 up to 30th September 1973 and it is further not in dispute that for this violation the complaint was riled on 5-2-1977, which admittedly has been filed beyond the period of six months. Similarly it is also not in dispute that for violating the provisions of section 57a of the Electricity (Supply) Act, 1948 the Company was asked to pay the amount to its consumers by the State by its final letter dated 4-10-1974, within a period of two months from that date and that for this violation the complaint was filed on 2-5-1977, which also obviously is filed beyond the prescribed period of limitation of six months, as for such an offence under section 47 of the Indian electricity Act, the penalty is only of payment of fine of Rs. 100. ( 9. ) CRIMINAL Revision No. 83 of 1980 relates to violation of section 11 of the Indian Electricity Act for not submitting the annual returns of the accounts for the year 1972-73. Criminal Revision No. 84 of 1980 relates to the question for violation of section 57a of the Electricity (Supply) Act, 1948 with Schedule VI, Part II thereof for not distributing the surplus amount to the consumers as directed by the State Government, which according to the prosecution is also punishable under section 47 of the Indian Electricity act, 1910. ( 10. ( 10. ) THE learned counsel for the petitioner-Company did not dispute that submission of yearly statement of accounts was necessary for calculating the clear profits which was ultimately to be distributed amongst the consumers according to section 57 read with Schedule VI, Part II of the Electricity (Supply) Act, 1948 for which, according to section 11 of the Indian Electricity act the Company as licensee had to submit the annual accounts to the state Government or to such Authority as the State Government may appoint in this behalf on or before the prescribed date in each year. ( 11. ) HOWEVER, the learned counsel for the petitioners submitted that in both the cases the offence in question being not a continuing offence the lower Revisional Court has committed an error in holding that the offences in question ace continuing offences. What is a continuing offence is not defined in the Code of Criminal Procedure. Whether an offence is a continuing one would depend upon the nature and type of that offence and the specific provision made in a particular statute making the same to be a continuing offence. It has been held in Shri Krishna Sanghi and ethers v. State m. P. ( 1976 MPLJ 559 =1976 J L J 613) that whenever a complaint or a challan is filed at the instance of any person or any police officer, the Court must first see that section 468 of the code is attracted or not. If it does, it should not register the case, but give an opportunity to the person or the police officer filing the complaint or challan to satisfy it on the point of limitation for purposes of condonation of delay. As regards the condonation of delay it should not be done as a matter of course. The delay has to be condoned with exercise of judicial discretion. Section 473 of the Code empowers the Court to condone such delay if sufficient cause has been shown or if the interest of justice makes it necessary to do so. But the application of the section would always depend upon the facts and circumstances of each case on which the Court would be required to exercise its judicial discretion in the matter, like an application under section 5 of the Limitation Act, 1963. ( 12. But the application of the section would always depend upon the facts and circumstances of each case on which the Court would be required to exercise its judicial discretion in the matter, like an application under section 5 of the Limitation Act, 1963. ( 12. ) THE provisions of section 473 of the said Code should also be liberally construed like section 5 of the Limitation Act so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to the prosecutor but cannot be construed too liberally because the government is the prosecutor or prosecution is upon police report. After the delay is condoned by the Court on its being satisfied by the process referred to above, then alone it would register the case and proceed with the same in accordance with law. Though the Code does not provide that before condoning the delay the accused person should be heard, still principles of natural justice demand that the accused persons must be heard before passing an order in that regard, as such an order is bound to affect a valuable right which accrues to the accused and which cannot be allowed to be taken away lightly. As such they have to be heard when an application under section 473 of the Code is moved by the prosecution before cognizance is taken. ( 13. ) ADMITTEDLY, in these cases, the prosecution did not file any application under section 473 of the said Code nor any such prayer was made on behalf of the State even at the time of the hearing of these petitions as it has been their contention that the offences in question being continuing offences bar of limitation does not come in the way of the prosecution. ( 14. ) IN State of Bihar v. Deokaran Nenshi and another (A I R 1973 S C 908) while considering the provisions of section 66 and section 79 of the Mines Act, 1952, it has been held that a complaint for failure to furnish return by prescribed date must be filed within a period of six months as there is a distinction between offence which takes place when an act or omission is committed once and for all and a continuing offence. It has been held therein that continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a 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 its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. ( 15. ) SIMILARLY in the decision reported in State v. Umashanker ( 1962 MPLJ 723 = 1962 JLJ 789 .) while considering the provisions of section 33 of the Factories Act, 1948, which is punishable under section 92 of that Act, similar question arose which offence can be said to be a continuing offence. Section 33 of the Factories Act provided that the fermenting vats of the distillery shall be securely fenced. If they are not so fenced, there is a contravention of the provisions of a section under the Act, which is punishable as an offence under section 92 of the said Act. The omission to securely fence the fermentation vats is a continuing offence, i. e. , it is an offence de die in diem so that every days non-compliance with the provisions of section 33 constituted a new offence and so long as a complaint is filed within three months of the day when the offence is alleged to have been committed or to have come to the knowledge of the Inspector, it is within time. ( 16. ( 16. ) IT has further been held that the conception underlying the word continuing is the same whether it is considered in relation to breaches of contracts wrongs independent of contracts or offences-the conception being that so far as breaches and wrongs are concerned-they give rise to a fresh cause of action de die in diem so long as the wrongful state of affairs subsists, and so far as offences are concerned they give rise to a fresh offence de die in diem so long as the omission which has been made penal by the Statute is not rectified. ( 17. ) AN offence may be committed by the doing of a positive act prohibited by law or by the omission to do that which the law makes it obligatory to do on pain of punishment. So far as the first is concerned, there can be no doubt that an offence is committed as many times as the positive act is done. In the latter case also, the position is not different. Law expects the fulfilment of an obligation every moment and consequently every day that the omission is not rectified by the performance of the positive duty, an offence is committed. No doubt, technically every moments contravention of any of the provisions of the Act is punishable as a separate offence; but as repetition in the same transaction of several criminal acts of exactly the same character constitutes one crime, we take into account all the contraventions of the day and call it one offence. Section 92 of the factories Act uses the expression the contravention is continued which means that the contravention should remain in existence, not to cease. ( 18. ) THEREFORE, it is necessary to find out whether the wording of section 47 of the Indian Electricity Act, 1910 provides that the offences mention-ed therein would be continuing offences when compared with the wording of sections 41, 42 and 43 of the Act, which are as follows: "47. ( 18. ) THEREFORE, it is necessary to find out whether the wording of section 47 of the Indian Electricity Act, 1910 provides that the offences mention-ed therein would be continuing offences when compared with the wording of sections 41, 42 and 43 of the Act, which are as follows: "47. Penalty for offences not otherwise provided for.- Whoever, in any case not already provided for by sections 39 to 46 (both inclusive), makes default in complying with any of the provisions of this Act, or with any other issued under it, or, in the case of a licensee, with any of the conditions of his licence, or in the case of a licensees case of a person who has obtained the sanction of the State Government under section 28, with any of the conditions of the sanction, shall be punishable with fine which may extend to one hundred rupees, and in the case of a continuing default, with a daily fine which may extend to twenty rupees: provided that, where a person has made default in complying with any of the provisions of sections 13, 14, 15, 17 and 32, as the case may be, he shall not be so punishable if the Court is of opinion that the case was one of emergency and that the offender complied with the said provisions as far as was reasonable in the circumstances. " * * * "41. Penalty for unauthorised supply of energy by non-licensees.-Whoever, in contravention of the provisions of section 28, engages in the business of supplying energy shall be punishable with fine which may extend to three thousand rupees; and, in the case of a continuing contravention, with a daily fine which may extend to three hundred rupees. 42. " * * * "41. Penalty for unauthorised supply of energy by non-licensees.-Whoever, in contravention of the provisions of section 28, engages in the business of supplying energy shall be punishable with fine which may extend to three thousand rupees; and, in the case of a continuing contravention, with a daily fine which may extend to three hundred rupees. 42. Penalty for illegal or defective supply or for non-compliance with order.-Whoever- (a) being a licensee or a person who has obtained the sanction of the State Government under section 28 to engage in the business of supplying energy to the public, save as permitted under section 27 or section 51, or by his license or as the case may be, by the conditions of sanction, supplies energy or lays down or places any electric supply-line or works outside the area of supply; or (b) being a licensee or person who has obtained sanction of the state Government as aforesaid, in contravention of the provisions of this Act or of the rules thereunder, or in breach of the conditions of license or of the sanction, as the case may be, and without reasonable excuse, the burden of proving which shall lie on him, discontinues the supply of energy or fails to supply energy; or (c) makes default in complying with any of the provisions of an order or of any notice or requisition issued under section 5 or section 6; or (d) makes default in complying with any directions issued to him under section 22a; or (e) makes default in complying with any order issued to him under section 22b or sub-section (2) of section 34; shall be punishable with fine which may extend to one thousand rupees, and, in the case of a continuing offence or default, with a daily fine which may extend to one hundred rupees. 43. Penalty for illegal transmission or use of energy.- Whoever, in Contravention of the provisions of section 30, transmits or uses energy without giving the notice required thereby, shall be punishable with fine which may extend to1 five hundred rupees, and*, in the case of a continuing offence, with a daily fine which may extend to fifty rupees -. " In section 41 of the words used are in the case of a continuing contravention, with a daily fine. " In section 41 of the words used are in the case of a continuing contravention, with a daily fine. In section 42 the wordings are in the case of a continuing offence or default with a daily fine and in the wordings of section 43 it is mentioned in the case of continuing offence, with daily fine, but in section 47 the words mentioned are in the case of a continuing default, with a daily fine. ( 19. ) THE words "daily fine" have been defined in section 2 of the Indian electricity Act, 1910, which is as follows: "daily fine" means a fine for each day on which an offence is continued after conviction therefor. " this definition makes it clear that whenever the question of liability of an accused for daily fine arises that can be taken into consideration only after the first conviction and not before that. Merely because the said section 47 provides the quantum of daily fine to Rs. 20, it would only relate to a continuing default and not to a continuing offence and this continuing default also can come into operation after there is a conviction as per the definition of daily fine. In order to hold an accused liable for a continuing offence, there must be a specific provision to that effect in a particular Statute, in relation to a particular type or nature of offence. ( 20. ) IN Emperor v. Karsandas Govindji Ved ( AIR 1942 Bom 326) the question was as to the proper construction of section 390 (1) of the Bombay City Municipal Act, 1888. That sub-section provided that no person shall newly establish in any premises any factory in which it is intended that steam, water or other mechanical power shall be employed without the previous written permission of the Commissioner, nor shall any person work or allowed to be worked, any such factory, without such permission. The sub-section thus lay down two distinct offences- (1) establishing new factory in which mechanical power was intended to be used without the permission and (2) working such a factory in which mechanical power was intended to be used without permission. The sub-section thus lay down two distinct offences- (1) establishing new factory in which mechanical power was intended to be used without the permission and (2) working such a factory in which mechanical power was intended to be used without permission. The High Court held that the first offence would be completed when a new factory was established without permission, an offence completed for once and all, while the other offence would be committed whenever such a factory without the permission was worked i. e on every day that it was worked without the permission. The distinction between the two kinds of offences lay between an which constituted an offence once and for all and an act which continued and, therefore, constituted a fresh offence every time on which it was continued. ( 21. ) SIMILARLY in State v. Bhiwandiwala (air 1955 Bom. 161), three offences were charged against the respondent- (1) failure to submit a written notice of occupation of his factory as required by section 7 (1) of the Factories Act, 1948, (2) failure to submit an application for registration and grant of licence as required by section 6 of the Act read with Rule 4 of the Bombay Factories rules, 1950 and (3) for using the premises as a factory without a license. It has been held that the first two offences were offences completed on failure to submit the notice and the application for registration and license and a complaint in respect of them would be barred if it was lodged beyond the period of three months from the date of offence under section 106 of the Act. But a prosecution in respect of the third offence would not be so barred as that offence was a continuing offence in the sense that using the premises as a factory without registration and licence was an offence committed every time that the premises were used as a factory. ( 22. But a prosecution in respect of the third offence would not be so barred as that offence was a continuing offence in the sense that using the premises as a factory without registration and licence was an offence committed every time that the premises were used as a factory. ( 22. ) SIMILARLY the Patna High Court in State of Bihar v. J. P. Singh (1963 B L J R 782) has held that conducting a restaurant without having it registered and without maintaining registers required by the Bihar Shops and Establishements Act viii of 1954 and the rules framed thereunder were continuing offence as every time a restaurant was run without its being registered and without maintaining the requisite registers was an offence and, therefore, the period of limitation under section 36 of the Act would begin to run from the date of the occurrence of each of the defaults. ( 23. ) THEREFORE, it is clear that every offence cannot be said to be a continuing offence. If a person constructs a house or a wall without the permission of the Municipality, the offence is complete as soon as the construction is over. In such a case even though the house or the wall stands, still it would not be a continuing offence because the offence was completed once only after the construction was over. ( 24. ) IN the present case, according to section 11 the failure to furnish annual accounts for the year 1972-73 by 30th September 1973 was an offence. The language of section 47 of the Indian Electricity Act provides that the licensee would be liable to the penalty if he were to commit an infringement of section 11 which consist in the failure to furnish the accounts on or before 30th September, 1973. The infringement, therefore, occurred on 30th September 1973 of the relevant year and is complete when the Company failed to furnish the same by that date. That section does not lay down that the company or its directors or officials would be guilty of an offence if it continues to carry on its business without furnishing the accounts or that the offence continues until the requirement of section 11 is complied with; in other words section 11 does not render a continued disobedience or noncompliance of it an offence. As stated above in the case of a construction of a wall in violation of a Rule or Bye-law of a Local Body, the offence would be complete once and for all as soon as such construction is made. There is, therefore, nothing in section 11 or section 47 which renders the continued non-compliance a continuing offence until its requirement is carried out. ( 25. ) THEREFORE, I am of opinion that non-furnishing the accounts by the specific date is by itself not a continuing offence in this case. Besides, s. 47 deals in terms with default in complying with any of the provisions of the Act or with any Order issued under it or in the case of a licensee with any of the conditions of his license, but it does not deal with the breach of any of the Rules made thereunder. The Rules are not part of the Act and a provision giving them the same force as if they had been enacted by the act does not make them so. It is to be noticed that when the Legislature intends to deal with breaches of the Rules apart from the Act, they say so, e. g. , S. 34 (2) (c) deals with an act in accordance with the provisions of Act or any of the Rules made thereunder and S. 42 (b) provides a penalty for a breach of the provisions of the Act or of the Rules made thereunder. Therefore, the omission in S. 47 of any reference to a breach of the Rules was deliberate and, therefore, for the breach of Rule 26 Indian Electricity rules, 1956 the accused cannot be held liable under S. 47: please see Nazarally v. Natterwala (AIR 1936 Bom. 327 ). ( 26. ) SO far as violation of the provisions of S. 57-A of the Electricity (Supply) Act 1948 is concerned, learned counsel for the petitioner, apart from submitting the fact that that case was also barred by limitation due to which cognizance could not be taken, further submitted that for violation of any provision of the Electricity (Supply) Act, 1948 no prosecution could be launched under S. 47 of the Indian Electricity Act as the said S. 47 specifically relates to default in complying with any of the provisions of that Act only and not of any other Act. It is not in dispute that the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 are different Statutes. In support of his submission he further urged that for violating the provisions of S. 57-A of the Electricity (Supply) Act, 1948 a prosecution could be launched under S. 77 of the Electricity (Supply) Act, 1948 provided that section was applicable, but that Act having provided a particular section for penalties, the prosecution under S. 47 of the Indian Electricity Act is bad in law and even on that count, the prosecution deserves to be quashed even though the words continuing offence are present in S. 77. ( 27. ) THE learned counsel appearing for the State Shri M. L. Bansal was unable to controvert this submission of the learned counsel for the petitioner and, in my opinion, when the Electricity (Supply) Act, 1948 makes a specific provision for penalty for violating the provisions of that Act, a prosecution can be launched only under the provisions of that Act and for that violation no prosecution under S. 47 of the Indian Electricity Act can be launched as s. 47 restricts itself to the offences provided under the provisions of that Act or any order issued thereunder alone. It is no doubt true that S. 57-A of the Electricity (Supply) Act provides that the Sixth Schedule and the Seventh schedule shall be deemed to be incorporated in the licence of any licencee, but when a specific penalty is provided in S. 77 of the Electricity (Supply) Act, 1948 for failure to comply with or give effect to any direction made under the different provisions which also include clause (d) of sub-section (1) of s. 57-A, a prosecution should have been launched for that offence under the electricity (Supply) Act, 1948 and not under S. 47 of the Indian Electricity act, 1910. ( 28. ) THUS, with the admitted position that there having been no previous conviction of the petitioner for these offences and as a result of the aforesaid discussion, I am of opinion that the prosecutions launched against the petitioner were clearly barred by time and of which cognizance could not be taken on that ground alone nor do I find any valid ground to condone the delay in absence of any prayer made to that effect showing sufficient cause for the delay. ( 29. ( 29. ) IN the result both these revision petitions are, therefore, allowed. The impugned orders passed by the lower Revisional Court are set aside and that of the trial Court are restored. The revisions are disposed of accordingly. Revision allowed.