VADIA GRAM PANCHAYAT v. NAJA NARAN — 1990 DIGILAW 146 (GUJ)

VAIDYA, J. ( 1 ) ). What is the "continuing offence" ? Whether an illegal encroachment upon the panchayat land by way of an unauthorised construction of a building thereupon is a continuing offence ? If yes, whether the learned magistrate was justified in the instant case in acquitting the accused by resorting to Sec. 468 (l) (2) (b) of the Code of Criminal Procedure, 1973 (for short referred to as the Code) dismissing the complaint as hit by limitation ? These, in substance, are the points for consideration in this acquittal appeal. ( 2 ) ). Few relevant facts leading to filing of this acquittal appeal are - Mr. Premshanker Ranchhodbhai, the Secretary, Vadia Gram Panchayat, filed a criminal complaint against one Naja Naran (respondent herein) before the learned J. M. F. C. , Vadia alleging inter alia that the said Naja having illegally encroached upon certain open plot of the Gram Panchayat land has unauthorisedly constructed a building thereupon. It is further the case of the complainant that the Panchayat had accordingly issued a Regd. A. D. notice dated 20-11-1980 to the accused calling upon him to produce the evidence in support of his title and claim in respect of the disputed land, which was not complied with. Thus, as a result the case against the accused was placed before the General Meeting of the Panchayat on 13-12-1980, wherein a resolution Ex. 23 came to be passed directing the Taluka Development Officer (by a letter addressed to him at Ex. 28) to take measurements of the land in question. This having been done, a map of the disputed land showing encroachment was sent by the Taluka Panchayat showing therein that the accused had encroached upon 728 Sq. Yds. and 4 Sq. Ft. of land of Vadia nagar Panchayat. On the basis of this, the Nagar Panchayat by yet another resolution No. 148 dated 16-10-1981 at Ex. 37 resolved to issue 30 days notice to the accused calling upon him to vacate the possession of the disputed land removing the unauthorized construction of the building thereupon. The notice Ex. 31 to the said effect was issued to the accused, which though served, was not complied with. It was in this back-drop of circumstances that the Vadia Nagar Panchayat was constrained to file a criminal complaint dated 19-10-1983 against the accused for the alleged offences under Secs. The notice Ex. 31 to the said effect was issued to the accused, which though served, was not complied with. It was in this back-drop of circumstances that the Vadia Nagar Panchayat was constrained to file a criminal complaint dated 19-10-1983 against the accused for the alleged offences under Secs. 447 and 114 of the I. P. C. and under Secs. 93 and 94 of the Gujarat panchayats Act, 1961 (hereinafter for short the Act ). This came to be registered as a Criminal Case No. 153 of 1982 and summons against the accused were ordered to be issued. ( 3 ) ). At the trial, while denying the guilt, the accused in his further statement admitted that he had encroached upon 728 Sq. Yds and 4 sq. Ft. of the Panchayat land (Ref. : Q and A No. 1 ). He has also admitted that the building constructed on the disputed land was not removed even after filing of the complaint (Ref. : Q and A No. 5 ). As regards the necessary permission for construction of the building in question he had stated that because one man from Panchayat told him to do so, he constructed the said building (Ref. : Q and A No. 6 ). ( 4 ) THE learned Magistrate after duly appreciating the evidence brought on the record accepted the prosecution case and held that the accused had encroached upon the Panchayat land by unauthorisedly constructing the building thereupon. However, despite this favourable finding in favour of the prosecution, surprisingly, the learned Magistrate acquitted the accused on the ground that though the alleged offence was committed in the year 1980 and that Vadia Gram Panchayat knew about the same on 31-10- 1980, yet the complaint regarding the same was filed as back and belated as on 19-10-1982. According to the learned Magistrate, having regard to the provisions contained in Sec. 468 (1 ) (2) (b) of the Code, the complaint regarding the alleged offence ought to have been filed within one year from the date of the knowledge of the same. Since the same was filed much beyond the period of limitation, he by a judgment and order dated 19-4-1983 refused to take cognizance of the offence and acquitted the accused. Hence this acquittal appeal. ( 5 ) ). Mr. Since the same was filed much beyond the period of limitation, he by a judgment and order dated 19-4-1983 refused to take cognizance of the offence and acquitted the accused. Hence this acquittal appeal. ( 5 ) ). Mr. R. R. Trivedi, the learned Advocate appearing for the Vadia Gram panchayat, while challenging the order of acquittal has made the following three submissions : (i) that the learned Magistrate has committed an obvious error in law in not appreciating the fact that the continuous encroachment upon the Panchayat land by refusing to remove the same despite the notices and the criminal complaint was per se a continuing offence; (ii) that as the alleged facts and circumstances appearing on the record constituted offence in question a continuing offence, the same was governed by Sec. 472 of the Code whereby the fresh period of limitation will run at every moment of time during which the offence continues and accordingly, therefore. Sec. 468 (1 ) (2) (b) of the Code pertaining to the bar of taking cognizance of offence after lapse of period of limitation has no application at all; (iii) that taking into consideration the glaring fact, viz. , the alleged encroachment was upon the public-panchayat land, in larger social interest, the alleged offence either ought to have been deemed as a continuing offence and if that was not possible, then in the interest of justice, the learned Magistrate in the overall interests of justice ought to have called-in-aid Sec. 473 of the Code by taking cognizance of the offence even after expiry of the period of limitation. 5,1 Making good the above submissions, Mr. Trivedi submitted that firstly by illegally encroaching upon the Panchayat land and in constructing an unauthorised building thereupon, the accused had already committed offences under Secs. 447 and 114 of the I. P. C. and under secs. 93 and 94 of the Act. According to Mr. Trivedi, the matter did not rest there only as even thereafter, after the service of notice to remove the said illegal encroachment and further after filing of the criminal complaint, the accused did not remove the same, as a result of which, the resultant injury flowing from the alleged offence had continued and continues till today. According to Mr. Trivedi, the matter did not rest there only as even thereafter, after the service of notice to remove the said illegal encroachment and further after filing of the criminal complaint, the accused did not remove the same, as a result of which, the resultant injury flowing from the alleged offence had continued and continues till today. Thus, this being a case of continuing offence, having regard to provision of Sec. 472 of the Code, the bar for the Court to take cognizance of the offence after lapse of period of limitation under Sec. 468 (l) (2) (b) of the Code had no application at all. Mr. Trivedi further in the alternative submitted that the encroachment on the land in question was on the Panchayat land, a public property. If the view as the one taken in the present case by the learned Magistrate is approved, it will perpetrate patent and serious injustice to the public cause. Mr. Trivedi finally submitted that examining the case in overall perspective of the social and public interest involved, either this Court should hold that the alleged offence is as a continuing offence and if that is not possible, in the larger public interest, in the interest of justice. Sec. 473 of the Code must be called in aid to extend the period of limitation for taking cognizance of offence. In any event, according to Mr. Trivedi, this was a case where the learned Magistrate ought not to have refused to take cognizance of the offence, more particularly when he was satisfied that the alleged offence in fact was proved. ( 6 ) ). As against the above, Mr. M. J. Dagli, the learned Advocate appearing for the accused broadly submitted that the alleged offence cannot be termed a continuing offence and that the trial Court was justified in acquitting the accused on the ground of limitation under Sec. 468 (1) (2) (b) of the Code. Mr. S. T. Mehta, the learned A. P. P. supporting learned Advocate Mr. Trivedi, submitted that continuance of the illegal encroachment upon the Panchayat land despite the notices and filing of the criminal complaint per-se amounted to the continuing offence and accordingly this appeal deserves to be allowed. ( 7 ) ). Now in order to appreciate and ascertain whether the facts and circumstances of this case constituting the offence under Secs. Trivedi, submitted that continuance of the illegal encroachment upon the Panchayat land despite the notices and filing of the criminal complaint per-se amounted to the continuing offence and accordingly this appeal deserves to be allowed. ( 7 ) ). Now in order to appreciate and ascertain whether the facts and circumstances of this case constituting the offence under Secs. 93 and 94 of the Act also constituted the same a continuing offence, it is necessary first of all to understand the correct meaning of the said expression continuing offence. Neither in the Indian Penal Code, nor in the Criminal Procedure Code, 1973, nor in any of the statutes as such the expression continuing offence has been defined, still however, by now the same has acquired well recognized meaning in criminal law by virtue of number of judicial pronouncements, e. g. , the Supreme Court in the case of Balakrishna Savalram Pujari Waghmare and Ors. v. Shri Dhyaneshwar Maharaj Sansthan and Ors. , reported in AIR 1959 sc 798 , while explaining the expression continuing offence, in context of sec. 23 of the Limitation Act, 1908, in paragraph-31 of the judgment has held as under :"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 Sec. 23 can be invoked. "the aforesaid decision of the Supreme Court was followed by a Division bench of this Court (Coram : A. D. Desai and T. U. Mehta, JJ.) in the case of The President, Kalol District Municipality, Kalol v. Bai Champa D/o Sheth bhatubhai Lallubhai and Am. , reported in (1976) XVII GLR 44. "the aforesaid decision of the Supreme Court was followed by a Division bench of this Court (Coram : A. D. Desai and T. U. Mehta, JJ.) in the case of The President, Kalol District Municipality, Kalol v. Bai Champa D/o Sheth bhatubhai Lallubhai and Am. , reported in (1976) XVII GLR 44. In para-5 of the said judgment, it has been observed as under :"the essence of a continuing wrong is that the act complained of creates continuing series of injuries and is of such a nature that it renders the doer of that act responsible for the said continuance. This particular principle is explained by Tek Chand, J. in a Full Bench decision given by Lahore High Court in Khair Mohd. Khan and Am. v. Aft. Jannat and Ors. , air 1940 Lahore, 359, wherein it is explained that where the injury complained of is complete on a certain date there is no continuing wrong even though the damage caused by that injury might continue. In such a case the cause of action to the person injured arises once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt by the aggrieved person on subsequent occasions, intermittently or even continuously, does not make the injury a continuing wrong so as to give him a fresh cause of action on each such occasion. If, however, the act is such that the injury itself is continuous, then there is a continuing wrong and the case is governed by Sec. 23 of the Act. The same principle is accepted by this High Court in Bai Manchha v. Sardar sajjadamaswh Mohmad Baker-el-Edrus, AIR 1963 Gujarat 168. The Supreme Court has reiterated this principle in Balakrishna v. Shreed. M. Sansthan, AIR 1959 SC 798 , at page 807 in the following words : xxx xxx xxx xxx xxx xxx in view of these principles, the question which still survives for a debate is when can it be said, that the wrongful act in question has caused an injury which is complete, and that what continues to have effect is the damage resulting from that injury. An obvious illustration answering this question is a case wherein the wrongful act consists of causing a bodily injury to a person Here the wrongful act is complete and self-contained even though the effect of the injury caused by the said act lingers on till the life time of the victim. Wrong which is committed in such a case is not a continuing wrong. However, in cases where the wrong committed infringes a right which is of a continuing nature and which can be enjoyed every day and every moment, that wrong is of a continuing character and gives rise to a fresh cause of action every moment it continues. A single occasion on which such a wrong is committed cannot destroy the right which is of a continuing nature. In such cases, interference with the right is temporary and the right continues to survive inspite of the interference. "similarly, in yet another decision in the case of State of Bihar v. Deokaran nenshi and Am. , reported in AIR 1973 SC 908 , in paragraph-5 the Supreme court has observed as under :"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 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. "the latest one by the Supreme Court on the point as to what could be the test for determining whether a particular offence is a continuing offence, is laid down in the case of Bhagirath Kanoria and Anr. v. State of M. P. , reported in AIR 1984 sc 1688 . "the latest one by the Supreme Court on the point as to what could be the test for determining whether a particular offence is a continuing offence, is laid down in the case of Bhagirath Kanoria and Anr. v. State of M. P. , reported in AIR 1984 sc 1688 . In paragraph-19 of the said judgment, the Supreme Court has observed as under :"the question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and above all, the purpose which is intended to be achieved by constituting the particular act as an offence. Turning to the matters before us, the offence of which the appellants are charged is the failure to pay the employers contribution before the due date. Considering the object and purpose of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature. The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it, as soon after the due date had expired as they willed. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. It is putting an incredible permission on lack of concern for the welfare of workers to hold that the employer who has not paid his contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences to which the law of limitation cannot apply. "7. 1. Thus, in substance, the expression continuing offence means that if an act or omission constituting an offence continued from day to day, then fresh offence is committed every day on which the act or omission is repeated, recurred or continues as held in 1984 Cri LJ 503 (Secretary, Agri. Market Committee v. S. V. G. 0. Mills ). 7. 1. Thus, in substance, the expression continuing offence means that if an act or omission constituting an offence continued from day to day, then fresh offence is committed every day on which the act or omission is repeated, recurred or continues as held in 1984 Cri LJ 503 (Secretary, Agri. Market Committee v. S. V. G. 0. Mills ). 7. 2 Now examining the facts and circumstances of the present case, in the light of the above decisions, this Court has not even an iota of doubt in holding that the illegal encroachment by way of unauthorised construction of a building upon the Panchayat land till the time it is removed is a continuous offence giving fresh causes of action every day for filing a criminal complaint against the accused. This view has to be taken more particularly in view of the fact that the alleged encroachment is on a public land. 73 Mr. Trivedi further appears to be right in his submission that assuming that the alleged offence was not a continuous offence but was a simple offence, even then having regard to the overall stake of the social interest involved in the public Panchayat land, this was one of the fittest cases wherein Sec. 473 of the Code could have been readily called-in-aid for taking cognizance of the offence even after the expiry of the limitation period. In support of this submission, reliance was placed on a decision in the case of Bhagirath Kanoria and Ors. v. State of M. P. , reported in AIR 1984 SC 1688 , wherein in paragraph-22 it has been held as under : "before we close, we consider it necessary to draw attention to the provisions of Sec. 473 of the Code which we have extracted above. That section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXvi of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if inter alia, it is satisfied that it is necessary to do so in the interest of justice. That section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXvi of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if inter alia, it is satisfied that it is necessary to do so in the interest of justice. The hair-splitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been averted by holding that considering the object and purpose of the Act, the learned magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice so requires. We believe that in cases of this nature, Courts which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in Sec. 473 of the Code. " ( 8 ) ). The result of the aforesaid discussion is that since the facts and circumstances of the case clearly indicate that the injury flowing from the alleged offence till lingers on and continues, the same squarely falls within the purview of the expression continuing offence, the bar for the Court to take cognizance of the offence after lapse of the period of limitation under sec. 468 (l) (2) (b) of the Code has no application at all. ( 9 ) ). Returning then to the facts of the present case, the learned Magistrate has rightly held that the accused had illegally encroached upon the Panchayat land by unauthorisedly constructing building thereupon. However, the error he committed in not convicting the accused for the alleged offence appears to be solely stemming from the mis-application of Sec. 468 (l) (2) (b) of the Code. Under the circumstances, once it is held that the alleged offence was a continuing one, the accused must be convicted for the same. ( 10 ) ). This will obviously take us now to consider what ought to be the proper sentence. Mr. Dagli, the learned Advocate for the accused submitted that though sentence provided for- (1) under Sec. 447 of the Code is imprisonment for three months or fine or both, and (ii) under Secs. 93 and 94 of the Act, fine of Rs. 50. This will obviously take us now to consider what ought to be the proper sentence. Mr. Dagli, the learned Advocate for the accused submitted that though sentence provided for- (1) under Sec. 447 of the Code is imprisonment for three months or fine or both, and (ii) under Secs. 93 and 94 of the Act, fine of Rs. 50. 00, the accused may not be sent to Jail after the lapse of about 8 years. Mr. Trivedi in this regard submitted that the appellant- panchayat has challenged the order of acquittal mainly to test, clarify and obtain the correct legal verdict on the point whether the alleged offence was a continuing offence or not. As regards the sentence Mr. Trivedi has left the same entirely to the discretion of the Court. Mr. Mehta, the learned A. P. P. having regard to the facts and circumstances of the case, has no objection if the accused is sentenced to pay fine only. Accordingly, the accused is hereby sentenced to pay a fine of Rs. 100. 00 for each of the offences, viz. , under sec. 447 of the I. P. C. and under Secs. 93 and 94 of the Act respectively. ( 11 ) ). In the result, the appeal succeeds and is allowed accordingly. The respondent is sentenced to pay in all fine of Rs. 200. 00 (two hundred) Within 6 (six) weeks from today, in default, to undergo S. I. for 15 days. .