S. S. BYAS, J. -
(1.)BY these twin applications one under section 397/401 and the other under section 482, Cr. P. C. , the accused persons have invoked the revisional and inherent jurisdiction of this court to challenge the validity of the orders dated February 26, 1982 and November 11, 1982 of the courts below and have further prayed for dropping the Criminal proceedings launched against them by the Krishi Upaj Mandi Samiti Padampur, under section 28/17 of the Rajasthan Agricultural Produce Market Act, 1961 (for brevity 'the Act' ). Briefly stated, the relevant facts giving rise to these petitions are that the Krishi Upaj Mandi Samiti Padampur (district Sri Ganganagar) (hereinafter referred to as *the Samiti') lodged a complaint through its Secretary in the Court of Judicial Magistrate, Karanpur for an offence under sec. 28/17 of the Act, It was stated therein that the Samiti is a statutory body. Accused Raj Kumar and Vimal Kumar are the owners while accused Tej Bhan is the manager of M/s. Raj Iee Factory, Padampur. The factory carries on various activities including that of the selling of mustard and cotton seed oil. During the period from November 17, 1975 to March 7, 1977, the accused sold 43 tankers of cotton - seed oil valuing Rs. 26, 20, 285. 45 to various oil mills operating at Jaipur, Delhi and Gulabpur as per details disclosed in annexure annexed with the complaint. The market fee on this amount comes to the tune of Rs. 26,202 85. This market fee under the Act, rules made thereunder and the bye-laws, was to be paid by the accused persons to the Samiti. But the accused persons failed to pay the aforesaid amount of the market fee to the Samiti. Notices were issued to them but they observed absolute silence. Enquiry was made from the various oil mills and the fact of sale of cotton - seed oil to them stood confirmed BY not paying the market fee, the accused have violated the provisions of Sec. 17 and thereby committed an offence punishable under section 28 (2) of the Act. The learned Magistrate, upon presentation of the complaint, took cognizance of the offence on the same date i. e. May 15, 1978 and issued summons to them to take trial. The accused entered the appearance and substance of accusation were stated to them and their plea was recorded on May 29, 1982. The accused denied the guilt and claimed the trial. Earlier on September 25, 1981, an application was filed on their behalf praying therein that as the complaint was lodged after the expiry of one year from the alleged date of the commission of the offence, the complaint was time barred, cognizance should not have been taken on this time barred complaint. It was argued that the criminal proceeding should not continue and the complaint should be dismissed. This application was opposed teeth and nail by the Samiti. The written reply was filed on November 20, 1981 describing various facts therein, which occasioned the delay in the lodging of the complaint. It was stated that the accused persons never disclosed the sales nor intimated the sale to the Samiti. It was after an enquiry from the various oil mills that the Samiti came to know of the sale and the non-payment of market fee on the sale price of the oil. Thus, no delay was there. Even if the delay is there, it should be condoned firstly on the above ground and secondly on the ground that it is necessary in the interest of justice. The learned Magistrate heard both sides i. e. the complainant and the accused persons. BY his order dated January 16. 1982, he refused to condone the delay relating to the offence committed in between November 17, 1975 to December 31, 1976, but condoned it for the offence committed during January 1, 1977 to March 7, 1977 as he found it necessary to do so in the interest of justice. Aggrieved against the said order of the learned Magistrate, both the parties went in revision, which was heard and decided by the Additional Sessions Judge, Sri Ganganagar. BY his impugned order dated November 24, 1982, he dismissed the revision filed by the accused persons and allowed that filed by the Samiti. The result was that the entire delay for the offence committed in between November 15, 1975 to March 7, 1977 was condoned. Aggrieved against the said order of the learned Addl. Sessions Judge, the accused persons have come-up to this Court.
(2.)I have heard the learned counsel appearing for the parties and the learned Public Prosecutor.
In assailing the order of the courts below, Mr. Garg learned counsel appearing for the accused - petitioner has raised the following contentions :- 1) Since the complaint, as per-allegations disclosed in the complaint itself, was time barred, cognizance of the offence could not be taken against them. Since cognizance of the offence could not be taken, the proceedings taken against them are without jurisdiction and must, therefore, to dropped; 2) the courts below crept into an error in condoning the delay after the cognizance of the offence was taken. If the delay was to be condoned; it, could be condoned only before taking cognizance and not thereafter; and 3) delay could be condoned under section 473, Cr. P. C. only when the delay has been properly explained. It has not been explained in the instant case by the Samiti.
Mr. Bishnoi learned counsel appearing for the Samiti as well as Mr. Udawat learned Public Prosecutor, while countering these contentions supported the order of the learned Additional Sessions Judge and inter alia made the following submissions:- 1) the offence committed by the accused persons was of tax evasion. The liability to pay market fee by the trader on the sale made by him is a continuing one and so also the offence arising from the non-payment of the market fee, punishable under section 28/17 of the Act, is a continuing one. The tax evasion, being a continuing offence, falls outside the inhibitory mandate in Sec. 468, Cr. P. C. It was argued that the case is governed by Sec. 472, Cr. P. C. which acts as a proviso to the provisions of Sec. 468, Cr. P. C. 2) the delay was properly condoned in part by the learned Magistrate and thereafter the delay was condoned for the full period by the learned Additional Sessions Judge after hearing both the parties. As such, the impugned orders have not resulted in any miscarriage of justice; and 3) the delay has been properly explained. Apart from the explanation, the offence being economic and fiscal, delay should be condoned in the interest of justice.
I have given my thoughtful and anxious consideration to the rival submissions of the parties. If the offence alleged to have been committed by the accused is a continuing offence, the question relating to the condonation of delay, the powers of the courts to do so, whether the grounds to condone the delay existed or not and the stage at which the delay can be condoned and like other matters need not be gone into at all. The case in that eventuality will fail within the ambit of Section 472, Cr. P. C. and the complaint cannot be taken to be time barred.
We should, therefore, examine the question as to whether the nonpayment of market fee is or is not a continuing offence ? This question is a baffling and intriguing one and does not admit, any ready-made answer with certainty. No definition of continuing offence has been given in the Code of Criminal Procedure or else where. This difficulty in deciding whether an offence is or is not a continuing one, was felt and appreciated by their lordships of the Supreme Court in Bhagirath Kanoriya versus State of Madhya Pradesh and the Provident Fund Inspector (1 ). It was observed by their lordships:- "the expression 'continuing offence' is not defined in the Code but, that is because expressions which do not have a fixed connotation or a static import are difficult to define. How difficult it is to put the concept of a continuing offence in a strait jacket is illustrated by the decision of this Court in State of Bihar V. Deokaran Nanshi (1973) 1 SCR 1004 (AIR 1973 SC 908 ). Their lordships then noted para 5 from A. I. R. 1973 SC. 908, which reads as under :- "a continuing offence is one which is suscaptible 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 involved 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 takes place when an act or omission is committed once and for all. "
(3.)THE case before their lordships was that of failure to pay the employer's contribution to the Provident Fund. THEre the accused persons were charged with an offence for their failure to pay the employer's contribution before the due date. It was held that each day for that the accused persons failed to comply with the obligation to pay their contribution to the fund, they committed a fresh offence. THE offence was taken to be a continuing one. I am lured to quote para 19 of the judgment, which runs 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 employer's 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 premium 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. "
Coming to the case in hand, the clinching question is whether the non-payment of market fee by the trader on the price of the sale of the market produce is or is not a continuing offence ? Section 28 (2) of the Act lays down that any person who intentionally evades the payment of any market fee payable under section 17 shall, on conviction be punished with simple imprisonment for a term that may extend to three months and with a fine which may extend to 1000 rupees. This sub-section, thus explicitly casts a duty on a person that includes a trader, to pay the market fee. Clause 26 of the bye-laws framed by the Samiti lays down that the trader shall intimate the fact of sale to the Samiti by a written slip on the very day the sale has been made will and make the pay ment of the market fee on Monday of every week. This provision again casts a mandate on the trader to pay the market fee. The scheme envisaged in the bye-laws leaves no room for doubt that the sale and purchase of the market produce comes to the knowledge of the Samiti only when they are intimated to it and not otherwise. The provisions in the bye-laws do not show that the sales and purchases are to be made by a trader in the presence of any representative of the Samiti. As such, the sale and purchase made by a trader in the market area cannot automatically come to the knowledge of the Samiti. This knowledge it gets only from the slips to be submitted by a trader. Clause 26 of the bye laws further lays down that in case the market fee is not paid on Monday in a week, the trader will pay a penalty at the rate of one paisa per rupee on the amount of market fee from the date of default till he pays. Thus, this penalty continues for the whole period covering from the date of default till the actual payment is made. Here again, the emphasis, as shown by this penalty clause, is on the traders duty to pay the market fee within the prescribed period. The payment of market fee is, thus, a positive act to be carried out by the trader.
One of the tests to find out whether a wrong is a continuing wrong or not, is that it should be seen whether the wrong is the result of the breach of a positive duty or a negative duty. If the wrong-doer is called upon to do nothing in law, it is a case of negative duty. But where a positive duty has been cast and that duty has not been carried out, it is a case of the breach of the positive duty. Thus, where the wrong consists of a breach of positive duty, the wrong will be a continuing one so long that duty has not been discharged. The failure to discharge this positive duty should be taken to be a continuing wrong during whole time the failure or breach lasts. If the duty is a continuing one and the omission to discharge that duty is an offence, that offence should be taken to be a continuing offence.