- (1.) This reference by the learned Additional Sessions Judge of Agra arises out of a prosecution under the Industrial Statistics Act. The prosecution case that Shyamsunderlal accused is occupier of a certain factory. He was called upon to furnish by the end of February 1954, the prescribed return for the year 1953. The accused did not submit the return within the prescribed period. A number of reminders were sent to him in March and April 1954. But the accused did not furnish the prescribed return inspite of the reminders. A complaint was, therefore, filed on 15-5-1954 for his prosecution under the Industrial Statistics Act. The trial was summary. The accused admitted that he did not furnish the prescribed return, and pleaded guilty. The learned Magistrate convicted him under the Industrial Statistics Act. The accused was sentenced to a fine of Rs. 100/- plus Rs. 2/- per day for continuing breach from 1-3-1954. The total came to Rs. 282/-. Against this judgment of the learned Magistrate the accused moved a revision application before the Additional Sessions Judge of Agra. The revision was heard by the learned Additional Sessions Judge of Agra. He concluded that the fine for the continuing breach was illegal. He has, therefore, made this reference recomending that, the learned Magistrate's order, imposing a fine of Rs. 2/- per day for conti nuing breach from 1-3-1954, should be set aside. I have heard Mr. Gopal Behari in support of the reference.
(2.) The learned Sessions Judge has referred to a number of decisions in which it was held that, it is not possible to impose a fine for continuing breach unless there has been conviction for the original offence. Hurmat v. King Emperor,1932 AllLJ 154 was a case Under Section 307 of the Municipalities Act. Clause (b) of Section 307 of the Municipalities Act deals with continuing breach. According to Clause (b) of Section 307 of that Act: the said person shall be liable, on conviction before a magistrate, to a fine which may extend to five hundred rupees, and in case of a continuing breach, to a further fine which may extend to five rupees for every day after the date of the first conviction during which the offender is proved to have persisted in the offence.
(3.) It was therefore held in Hurmat's case that, the expression 'first conviction' suggests that the recurring fine is to be imposed on the second conviction. The magistrate is not justified in presuming that the accused might persist and imposing on him a fine in advance. If the accused does persist in the offence, he is of course liable to be prosecuted a second time, on which occasion the recurring fine can be imposed. These observations support the contention that, recurring fine for a continuing breach can be imposed only in a separate prosecution.;