Dineshwar Pd. Jain v. Swarup Chand Jain — 1980 DIGILAW 99 (PAT)

JUDGMENT By Court This is an application under Section 482 or the Code or Criminal Procedure, 1973 (hereinafter called as "the Code") for quashing the criminal proceeding which is pending against the petitioner in the court of Sri S. Mahton, Judicial Magistrate, Hazaribagh and has been numbered as T.R. No. 1485 or 1971. 2. The relevant facts are these: On 21.8.1976 Sri Swarup Chand Jain the sole opposite party in this case who is the president of the Bihar State Board of Sri Digambar Jain Religious Trust (hereinafter called 'the Board") filed a petition of complaint before the Chief Judicial Magistrate, Hazaribagh, alleging that Sri Dineshwar Prasad Jain who is petitioner in this case was the trustee of Sri Dharamnathjl Trust at Arrah in the former district of Shababad and as such had submitted returns under Section 59 of the Bihar Hindu Religious Trust Act, 1950 (hereinafter called the Act") for the period 1951-1952 to 1955-1956 but had omitted to send to the Board a budget or the estimated Income and expenditure of the trust in the next succeeding financial year which he was required to prepare before the 15th day of January in each year and forthwith to send the copy thereof to the Board under the provisions of Section 59 and 60 of the Act, and, therefore, had committed an offence punishable under section 67(1) of the Act, and praying that the petitioner be summoned to stand trial. It was also stated in the complaint that the complainant Sri Swarop Chand Jain had been appointed President of the Board by Notification dated 13.4.1976 of the Government of Bihar. The learned Chief Judicial Magistrate, Hazaribagh on receipt of that application on that very date, namely, 21.8.1976 passed an order taking cognizance of the offence under Section 68(1) of the Act, and directing issue of summons against the person named as accused in the petition of complaint. By the said order the learned Chief Judicial Magistrate transferred the case to the Court of Sri S.N. Mahton, Judicial Magistrate for disposal. 3. The accused who, as I have already stated, is the petitioner, even before appearing in the court below in person, has filed this present application for quashing the criminal proceeding initiated against him. By the said order the learned Chief Judicial Magistrate transferred the case to the Court of Sri S.N. Mahton, Judicial Magistrate for disposal. 3. The accused who, as I have already stated, is the petitioner, even before appearing in the court below in person, has filed this present application for quashing the criminal proceeding initiated against him. The application first came up for hearing before a learned Single Judge of this Court but the learned single Judge of this Court directed this case to be placed before a Division Bench and so the case has come up before us. 4. To appreciate the arguments advanced it is necessary to refer the relevant statutory provisions. Under Section 67(1) of the Act, if a trustee falls without reasonable cause to comply with the provisions of sub-section (1) of Section 59 or of 60 and or certain other section of the Act, or to do certain other Act, which it is not necessity to set out, he shall be punished with fine which may extend in the case of first offence to Rupees two hundred and in the case of the second or any subsequent offence to five hundred rupees and In default of payment of the fine, with simple imprisonment for a term which may extend to six months or one year as the case may be. 5, The sole ground urged in support of this application for quashing is that cognizance off the offence for which the accused-petitioner is being tried in the impugned proceedings was barred by the provisions of Section 468 of the Code or Criminal Procedure 1973, herein called the Code, inasmuch al. the period of limitation for taking cognizance of the offence had expired, The first offence under Section 67 of the Act, is punishable with fine only and, therefore, under Section 468(2) of the Code the period of limitation for taking cognizance of the offence is six months, Section 469 of the Code so far as it is relevant runs thus: "469. (1) The period of limitation, in relation to an offender shall commence, (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer the first day on which such offence comes to the knowledge of such person or to any police officer whichever is earlier," The only other relevant provisions of the Code are Sections 472 and 483 which run thus: 472. "In the calc of continuing offence, a fresh period of limitation shall begin to run at ever, moment of the time during which the offence continues." 473. "Notwithstanding anything contained in the foregoing provisions of this Chapter. any Court may take cognizance of an offence after the expiry of the period of limitation. It is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.” Though in the petition of complaint reference to Section 59 of the Act, has also been made. It is common ground that the complaint essentially is with reference to failure to comply with the provisions of sub-section (1) of Section 60 of the Act, Section 60 of the Act, runs thus : "(1) The trustee or every religious trust shall before the fifteenth day of January In each year prepare a budget of the estimated Income and expenditure of trust for the next succeeding financial year and shall forthwith send a copy thereof to the Board; Provided that the Board may object to such considerations as it may deem fit to Impose from time to time, except the trustee of a religious trust having an Income or less than be hundred rupees from the obligation of sending a copy of the budget of such trust to the Board and may at any time withdraw such exemption : Provided further that such the exemption shall, not prevent' the Board from calling for a copy of the budget of such trust for any financial year during which the exemption is in force. (2) The Board may within six weeks from the date on which it receives such copy, alter or modify the budget in such manner and to such extent as it thinks fit. (2) The Board may within six weeks from the date on which it receives such copy, alter or modify the budget in such manner and to such extent as it thinks fit. (3) If the Board alters or modifies an, budget under sub-section (2), it shall forthwith send a copy of the budget as so altered or modified to the trustee of the trust concerned and the budget as so altered or modified shall be deemed to be the budget of the said religious trust. (4) If within the period mentioned in sub-section (2) and for two weeks there after the Board does not send to the trustee of the trust concerned a copy of the budget altered or modified as aforesaid the Board shall be deemed to have approved the budget without any alteration or modification. (5) If the trustee fails to prepare and send a copy of the budget al required by sub-section (1) the Board shall prepare a budget for the trust concerned and send a copy thereof to the trustee before the first day of March each year and such budget shall be deemed to be the budget of the trust for the year in question. (6) Nothing contained in this section shall be deemed to authorise the Board to alter or modify the budget in a manner to an extent Inconsistent with the wishes of founder. so far as such wishes can be ascertained, or with the provisions of this Act." 6. It is urged by Mr. Kishore, the learned counsel for the petitioner that the date of commission of the last offence, namely, the offence for non-submission of the budget of the estimated income and expenditure of the trust for the next succeeding financial year that is to say, the financial year 1976-77 was some date in January, 1976, because according to sub-section (I) of Section 60 of the Act, the budget had to be prepared by the trustee before the 15th day of January for the next succeeding financial year and a copy of which had to be sent by him to the Board forthwith. As cognizance was taken on 21.8.76 which was beyond the period of sis months computed even from the last date of January, it was time barred as the period of six month, computed from the date of the offence, had expired much before 21.8.1976, the date on which cognizance was taken. This argument was combated by Mr. Debi Prasad appearing for the opposite party by urging that the offence under Section 76(1) for non-submission of the copy of the budget al required by Section 60(1) was a continuing offence and the offence continued to be committed so long as the copy was not sent and it had not been sent and therefore, no question of limitation arose. He also contended that the date of the commission of an offence which consisted in failure by the trustee to prepare the budget for the next succeeding financial year and to forthwith send a copy thereof to the Board was complete only by the last day of February each year, because under sub section (5) of Section 60 or the Act, the Board could prepare a budget for the trust concerned and send copy thereof to the trustee in the event of failure or the trustee to comply with the provision of sub-section (1) of Section 60 before the first day of March of each year. 6. Lastly, Mr. Prasad contended that the period of limitation in respect or the offence in question commenced not on the date of commission of the offence but on the 1st date on which the commission of the offence first came to the knowledge of the complainant. namely the President of the Board who was the person aggrieved by the said offence. The learned counsel for the petitioner controverted the contention that the offence was continuing offence and also that the commission of the offence was completed only on the last day of February of each year. namely the President of the Board who was the person aggrieved by the said offence. The learned counsel for the petitioner controverted the contention that the offence was continuing offence and also that the commission of the offence was completed only on the last day of February of each year. He also contended in reply that the provision of clause (b) of Sub-section (1) of Section 469 which provides chat the first day on which the offence came to the knowledge of the person aggrieved by the offence shall be the date of commencement of the period of limitation had no application in the present case and that at any rate the period of limitation even if computed from the date of knowledge of the person aggrieved, had expired on the date on which the cognizance had been taken. In our opinion the contention of Mr. Prasad that the offence alleged is a continuing offence is not correct. In the case of Slate of Bihar Vs. Deokaran Nenshi & another the Supreme Court had to consider whether an offence under Section 66 of the Mines Act, 1952 was a continuing offence or not. Section 66 of the Mines Act, 1952 provided that any person omitting Inter alia to furnish any return notice etc. in the prescribed form or manner or at or within the prescribed time required by or under the Mines Act, to be made or furnished shill be punishable with fine which may extend to Rs.1,000/-. The Supreme Court in that case explained the nature of continuing offence and distinguished it from an offence which is not continuing thus : "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 observed 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 or offences is between an Act, or omission which constitutes an offence once and for all and an or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. On every occasion that such disobedience or non-compliance occurs and recurs. there is the offence committed. The distinction between the two kinds or offences is between an Act, or omission which constitutes an offence once and for all and an 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 or continuance or 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." (at page 909 of the report.) Thereafter, the Supreme Court pointed out that Regulation 3 read with Section 66 of the Mines Act, made failure to furnish annual returns for the preceding year by the 21st January or the succeeding year an offence and. Therefore, the infringement occurred on January 21 of the relevant year and was complete on the owner falling to furnish the annual returns by that day. It was also pointed out that the Regulation did not lay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he continued to carry on the mine without furnishing the returns or that the offence continued until the requirement was fulfiled al Regulation 3 did not render a continued disobedience or non-compliance of it an offence. And it found that the offence was complete once and for all as soon as the default occurred in furnishing the returns by the prescribed date. It accordingly held that the offence under Section 66 or the Mines Act, 1952 was not a continuing offence. 7. It is clear from the aforesaid decision of the Supreme Court that If an offence is committed once and for all and there is no specific provision providing that the offence continues until the requirements of the statutory provision arc fulfiled the offence is not a continuing offence. It is also clear from the said decision that if a return etc. has to be furnished by a prescribed date, the offence of not furnishing return etc. is committed once and for all. It is also clear from the said decision that if a return etc. has to be furnished by a prescribed date, the offence of not furnishing return etc. is committed once and for all. Now under Sub-section (1) of Section 60 of the Act, the budget in each succeeding financial year has to be prepared by the 15th day of January and a copy thereof so prepared has to be sent to the Board forthwith. It is obvious that the offence in not prepared the budget for the succeeding financial year is committed once and for all on the 15th day of January of that year, if the budget for the succeeding financial year is not prepared by that date, because that time prescribed for preparation of the budget is the 15th day of January of that year. Mr. Debi Prasad does not dispute this position. He, however, contends that no specific time is prescribed for sending the copy of the budget to the Board, and. Therefore, the offence which consisted in not sending a copy of budget to the Board cannot be said to have been committed once and for all. In our opinion, this argument proceeds upon a misconception that the since limit could be prescribed only by specifying a specific date or period for doing a particular Act, specific date or a specific period. A time limit is prescribed for doing or a particular Act, even if it is merely provided that the Act, must be done within a reasonable time or as soon as may be or forthwith, as in this case. It cannot be said that if the Act, is not done within a reasonable time or as soon as may be or forthwith as laid down by the statutory provision, there is no contravention of the statutory provision. It may be that the period specified by the words "as soon as may be" or "within a reasonable time" or "forthwith" is not an uniform period fixed for all cases. The period may be four days in one case and may even be ten days in another but such expressions do nevertheless specify a point of time within which if the Act, is not performed. it will be held to be performed beyond the period specified by the statutory provision. The period may be four days in one case and may even be ten days in another but such expressions do nevertheless specify a point of time within which if the Act, is not performed. it will be held to be performed beyond the period specified by the statutory provision. Therefore, when the Statute says that a copy of the budget shall be sent forthwith after his prepared, it does prescribe a limit of time for sending the copy to the Board and as soon as that period expires, the offence which consists in not sending a copy forthwith to the Board is committed once and for all. 8. Sub-section (1) of Section 60 of the Act, provides, as I have already stated, that the budget referred to therein for the next succeeding financial year shall be prepared each year by the 15th day of January and that the trustee shall forthwith send a copy thereof to the Board. Now the expression "forthwith" which also occurred also in section 3 (3) of the Preventive Detention Act, 1950 was construed by the Supreme Court in the case of Keshav Nikanth Joglekar Vs. The Commissioner of Police, Greater Bombay & others it was observed therein that an Act, which is to be done forthwith must be held to have been so done when it is done with all reasonable despatch and without avoidable deny. There is nothing in be Act, which suggests that a different meaning of the expression "forthwith" occurring in Section 60 (1) of the Act, should be adopted. Therefore, when sub-section (1) of Section 60 provides that a copy of the budget which required to be prepared by the 15th day of January must be sent to the Board forthwith, It means that the copy of the budget most be sent on or after the 15th day of January with all reasonable despatch and without any avoidable delay. Now, as the last day of the preparation of the budget is the 15th day of January of that year, if a copy of the budget is sent without avoidable delay and with all reasonable despatch on or after the 15th day of January, It must be despatched either on the 15th day of January within a day or two thereafter in absence of special circumstances, and it should reach the Board shortly thereafter. There can, therefore, be no room for doubt that if it is not sent even by the end of January a copy of the budget cannot be held to have been sent forthwith and in any event the offence mast be held to have been committed once and for all latest by the 31st day of January if not earlier. 9. We see no warrant for the contention that the offence is not committed till the last day of February of the year. The contravention of section 60 of the Act, which constitutes the offence consists in the failure on the part of the trustee to forthwith send a copy of the budget which is required to be prepared before the 15th day of January in each year. Even If a very liberal view is taken the copy can not be said to have been sent forthwith and a contravention took place, if the copy is not sent till the last day of January which is 15th or 16th day after the last day of preparation of the budget. Sub-section (5) of Section 60 on which reliance was placed by Mr. Prasad is of no relevancy in determining when the contravention of the provisions of subsection (1) of Section 60 of the Act, takes place. Sub-section (1) of Section 60 empowers and also imposed upon the Board the duty to prepare the budget for the trust concerned and to send a copy thereof to the trustee and prescribes a. time limit for the performance of the budget namely the 1st day of March of each year which duty is imposed upon the Board if the trustee fails to prepare and send a copy of the budget as required by sub-section aforesaid. It has nothing to do as I have already laid earlier with determining the date of contravention of the provision of sub-section (1) of Section 60 of the Act. It cannot be said that the Board cannot prepare the budget before the 1st day of March even though the trustee has failed to comply with the provision of sub-section (1) of Section 60 and such non-compliance has come to the notice of the Board. 10. It cannot be said that the Board cannot prepare the budget before the 1st day of March even though the trustee has failed to comply with the provision of sub-section (1) of Section 60 and such non-compliance has come to the notice of the Board. 10. Even though the offence is not a continuing offence and it seems reasonable clear that It was committed latest by the 31st day of January, 1976, so far as non-sending of the budget for the financial year 1976-77 is concerned which in essence is essential subject matter of the complaint we should leave mentioned that the date of commission of offence in the complaint case is 1976. In our opinion, the prayer of the petitioner for quashing the criminal proceeding at this stage must be rejected. I have already mentioned the provisions of Section 469 of the Code. According to lection 469 (1) (b) (6) of the Code the date of commencement of the period or limitation in a case where commission or offence was not known to the person aggrieved by the offence or to the police officer is the first day on which the offence comes to the knowledge of such person. Now there are no materials upon which this Court can determine the date on which the commission of the offence was known to the person aggrieved by the offence. At least there are no materials on the basis of which this court can hold that on 21.8.76 the date on which cognizance was taken more than six months had elapsed from the date on which the commission of offence had come to the knowledge of the person aggrieved namely the President of the Board. According to the averments in the petition of complaint the complainant Sri Swarup Chand Jain was appointed President only in April, 1976 much before the expiry and within the period of six months expiring on 21.8.1976 on which date cognizance was taken by the learned Chief Judicial Magistrate. According to the averments in the petition of complaint the complainant Sri Swarup Chand Jain was appointed President only in April, 1976 much before the expiry and within the period of six months expiring on 21.8.1976 on which date cognizance was taken by the learned Chief Judicial Magistrate. It may be stated that it is not necessary at this stage to decide that If the person who was President of the Board previous to the complainant, knew of the commission of the offence prior to that date or on a date more than six months prior to the date of taking of cognizance, the cognizance of offence was barred by limitation for there are no material before this Court upon which it can be held that the previous President knew of the commission of the offence alleged on a date beyond the period of six months of the date of taking cognizance of the offence. The question whether cognizance of the offence was taken on 21.8.76. The expiry of period of limitation requires an investigation into the facts which had still to be done. The full facts are not before this Court. It has not been averred by the petitioner that it was known to the Board or the President thereof that the petitioner had not submitted the copy of budget as required by Section 60(1) of the Act, on a day more than six months before the date of taking of cognizance. 11. Quashing the criminal proceedings in exercise of the inherent power of this Court can only be justified to prevent the abuse of process of the Court. And the aforesaid power of quashing may be exercised only if the Court is in a position to come to the unhesitating conclusion that continuance of the criminal proceeding will be an abuse of the process of the Court. This Court is not in a position to come to such a conclusion in this case when the facts have still to be investigated. Quashing the criminal proceedings without the facts having been investigated completely on the ground that the proceeding is barred by limitation would stifle prosecution and Instead of promoting ends of Justice would defeat. We must therefore, decline to quash the proceeding at this stage. Quashing the criminal proceedings without the facts having been investigated completely on the ground that the proceeding is barred by limitation would stifle prosecution and Instead of promoting ends of Justice would defeat. We must therefore, decline to quash the proceeding at this stage. It will be open to the petitioner to file an application before the Court in seisin of the case alleging that the criminal proceedings instituted against him were barred by limitation and if such application is filed. It will be the duty of the trial court to decide the issue whether cognizance of the offence is barred by limitation as a preliminary issue before proceeding with the trial. It is true that by taking cognizance it has impliedly decided that the cognizance is not barred by limitation but since the ardor taking cognizance was passed in the absence of the accused without giving him an opportunity of being heard in the matter that decision is not binding on the accused who is entitled to show that cognizance was barred by limitation. 12. With the aforesaid observation, the application is dismissed. It is further observed that if the plea as to the limitation is decided against the accused-petitioner, he will be at liberty to move this Court against that order. Application dismissed.