BHARGAVA, J. - (1.) THIS is a reference by the learned Sessions Judge, Jaipur City recommending that the order of the City Magistrate, Jaipur-City dated 8th March, 1961 be set aside.
(2.) DR. Sardarsingh, who is the proprietor of 'kamal Clinics' , situate in Ramganj Bazar, Jaipur City, was prosecuted for contravening sec. 4 of the Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter called the Act) for failure to apply for registration of his establishment as required under the section. The complaint was filed on 2nd September, 1960, by the Inspector, Shops and Commercial Establishments. On behalf of the accused an objection was raised that the complaint was barred by limitation having been filed after a period of six months from the date of the commission of the offence. The objection did not find favour with the learned Magistrate and he over-ruled it holding that the offence was continuing. The accused preferred a revision before the learned Sessions Judge, who agreed with the contention of the learned counsel for the accused and has made this reference. Sec. 4 of the Act lays down that: - (1) Within the period specified in sub-sec. (3), the employer of every establishment shall send to the Inspector of the area concerned a statement in the prescribed form containing : - (a) the name of the employer and the manager if any; (b) the postal address of the establishment; (c) the name, if any, of the establishment (d) such other particulars as may be prescribed. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Within thirty days from the date mentioned in column 2 below in respect of an establishment mentioned in column 1 the statement together with fees shall be sent to the Inspector under sub-sec. (1 ). Establishment Date from which the period of 30 days to commence (i) Establishments existing on the date on which this act comes into force. The date on which this Act comes into force (ii) New establishments The date on which the establishment commences its work. Therefore the employers of establishments existing on the date on which this Act. came into force, that is, 4th August, 1958, are required to submit a statement in the prescribed form together with the prescribed fee mentioning the particulars given therein, within 30 days of the coming into force of the Act. It is admitted that the establishment of the accused was in existence on the date the Act came into force. Sec. 35 of the Act lays down that: - "no Court shall take cognizance of any offence under this Act or any rule or order made thereunder unless complaint is made within six months of the date on which the offence is alleged to have been committed. " The contention of the learned counsel for the accused is that the offence was committed on the expiry of 30 days i. e, on 4th September 1958 and as the complaint has been filed after the expiry of six months the learned Magistrate should not have taken its cognizance. On behalf of the State it has been contended that non-registration of an establishment, as required by sec. 4 of the Act is a continuing offence and is committed from day to day, as such the complaint was within limitation. It was further contended that the object underlying the Act would be defeated in case it is held that failure to apply for registration is not a continuing offence. The object of the Act is to provide certain benefits to persons employed in shops and establishments in the matter of their wages, working hours, weekly holidays, leave, maternity benefits etc. The" Act also defines commercial establishments, establishments and shops and does not require their registration necessary so as to fall within the said definitions. There is no provision in the Act which lays down that an establishment cannot be run without a registration certificate granted by the Inspector as provided in sec. 4 of the Act. The provisions of chapters 3, 4, 5 and 6, which are meant for the benefit of the employees, are not restricted in their application to shops and establishment, which have been registered under sec. 4 of the Act, but apply to all establishments.) It follows, therefore, that even if an establishment is not registered, the employer would still have to comply with the provisions of the Act, namely observance of the hours of work, weekly holidays, etc. There is no force in the contention that the object of the Act would be defeated, if failure to apply for registration is not held to be a continuing offence. The offence for failure to send the statement required under sec. 4 of the Act is committed on the expiry of the period prescribed, that is, 30 days and the offence is committed once for all. No fresh offence is committed thereafter. Continuing offence is one where the act of the accused constituting the offence amounts to a fresh offence on each day it is committed. Under the Act there may be offences which may be regarded as continuing offences, just as in sec. 4 itself there is a requirement that the employer shall prominently display the registration certificate at the establishment. Failure to display registration certificate will be an offence on each day when it is not so displayed. Every breach of this provision will be an offence but in the case of failure to apply for registration the position is not the same. Here the act complained of is the omission on the part of the employer to make statement, as required by sec. 4 of the Act and this omission is complete on the expiry of the period prescribed for as the Act does not make the continuance of this omission as an offence. A similar question arose before the Bombay High Court, where the accused was prosecuted for failure to apply for registration of a license of the factory, as provided in the Indian Factories Act, read with rule 4 framed under the Act by the Bombay State. Rule 4 of the Bombay Factories Rules, 1956, is in the following terms: - "application for registration and grant of licence. licence. The occupier of every factory, whether in existence at the date of the commencement of the Act or coming within the scope of the Act after its commencement shall submit to the Chief Inspector an application in Form No. 2 for the registration of the factory and grant of a The application shall be accompanied by the notice of occupation in Form No. 3, in triplicate, prescribed under sec. 7, provided that the occupier of premises in use as a factory on the date of the commencement of the Act shall submit such application within 3o days from the date of commencement of the Rules. " The accused was prosecuted for his failure to make an application for registration for grant of licence and also for using the premises as a factory without a licence. A Bench of the Bombay High Court in State Vs. A. H. Bhiwandiwalla (1) observed that by reason of his failure to apply for registration of his factory, the accused cannot be said to have committed a continuing offence. The factory was working even before the commencement of the Act and under rule 4 it was obligatory on him to have applied for the registration of the factory in Form No. 2, and to have given notice of occupation in Form No. 3, within 30 days from the date of commencement of the rules. The failure of the respondent to comply with these requirements makes the establishment of the factory and its occupation by him subsequent to the lapse of 30 days after the commencement of the rules irregular and unlawful. But it would be difficult to hold that the said establishment and occupation per se would constitute a continuing offence. With regard to the other charge, it was observed that if the respondent did not apply for licence and had been using the premises without a licence, his act clearly amounts to an offence. In that view of the matter, the complaint with regard to the failure to apply for registration was held to be barred by limitation. The provisions of sec. 4 of the Act are similar to rule 4 of the Bombay Factories Rules, and in my opinion, the observations made in that case, if I may say so respectfully, apply to the facts of this case. I am, therefore, of the view that the offence is not a continuing one and the complaint was barred by limitation having been filed after six months of the commission of the offence. As the complaint in the present case is only confined to the failure on the part of the accused to apply for registration of his establishment and not with respect to nondis-playing of the registration certificate, I need not send the case back for the trial of that offence. Contravention of this provision, i. e. , of displaying of the registration certificate was not the subject matter of the complaint nor was it so urged before the courts below. The revision is, therefore, allowed, the order of the learned Magistrate is set aside and the accused is acquitted. .;