A.M. BHATTACHARJEE, J. - (1.) The only point urged on behalf of the petitioners in these two cases is that the impugned prosecutions are barred by limitation under the provisions of S.468, Cr. P.C. The alleged offences for which the prosecutions have been launched and processes issued are punishable under S.162(1) and S.220(3) of the Companies Act with fine only and having undisputedly filed beyond six months after the alleged defaults were made, would be barred under S.468 of the Code, unless they can be treated as "continuing offences" within the meaning of S.472 of the Code. The only question, therefore, arising for our consideration in these cases is whether the offences punishable under S.162(1) and under S.220(3) of the Companies Act are "continuing offences" within the meaning of S.472, Cr. P.C. An affirmative answer will warrant the discharge of the Rules; but a negative answer would require us to make the Rules absolute and quash the prosecutions. We have decided to return an affirmative answer both on principle as well as on authorities. Here are the reasons.
(2.) The expression "continuing offence", far from being a stranger, was quite a regular visitor to our criminal domain, particularly in respect of offences which are not mala in se, but are only mala prohibita, e.g., running a factory without a proper licence or using a structure erected without the necessary permission or a proper plan and the like; but after the Code of Criminal Procedure 1973, it has now become a permanent entrant in our Criminal Jurisdiction in view of S.472 of the Code, and applies to all offences, whether mala in se or mala prohibita, which are punishable with fine only or with imprisonment for a term not exceeding three years.
(3.) The expression "continuing offence" or "continuous offence" does not appear to have any fixed concept; its meaning, nuances and effect very from statute to statute creating it. The Supreme Court in Bhagirath Kanoria v. State, AIR 1984 SC 1688 at P. 1690 has observed that the expression not having any fixed connotation or static import, is difficult to define and to put in a straight-jacket formula. A Division Bench of this Court in Eastern Paper Mills v. State, 1988 Cal Cri LR (HC) 176 has, however, observed that "the difficulty in interpreting as to whether a particular offence is a continuing one or not has been removed by the decision" of the Supreme Court in Bhagirath Kanoria (supra). With respect, we would only say that how we wished that it was so.;