MOHAMMAD RAFIQ,J. - (1.) All these criminal miscellaneous petitions seek to assail orders passed by the trial court, whereby the applications filed by the petitioners under section 467 of the Code of Criminal Procedure, 1973 for dropping the criminal proceedings against them in the trial for offence under Section 28 of the Rajasthan Agricultural Produce Markets Act, 1961, (for short, 'the Act of 1961'), have been rejected. A learned Single Judge of this court, in view of the conflicting opinion of different single benches as to whether or not the offence under Section 28 of the Act of 1961 is continuing one, by order dated 13.07.2007 has made a reference for authoritative pronouncement. In all these matters, the complaints were filed by the Secretary, Krishi Upaj Mandi Samiti, Alwar, that the accused firms by not making payment of the market fee to the Mandi Samiti have violated provisions of Section 17 of the Act of 1961, and were liable for punishment under Section 28 of the Act of 1961. Learned Magistrate, in all these cases, took cognizance and issued process against the petitioners. The petitioners thereupon filed application for dropping the proceedings of trial and for discharging them from the said offence. According to the petitioners, since the offence under Section 28 of the Act of 1961 is punishable with imprisonment of three months and fine, which may, in regard to offence under sub-section (1), extend to five hundred rupees, and in regard to offence under sub-section (2), may extend to one thousand rupees. The complaint, having been filed after expiry of limitation of one year, was, as per Section 468 of the Cr.P.C., liable to be dismissed as time barred. It was argued that the offence under Section 28 of the Act of 1961 is not continuing offence and the offence being not continuing one, complaint ought to have been filed within one year.
(2.) In order to better appreciate the dispute, it is considered apposite to reproduce Sections 17 and 28 of the Act of 1961, which read thus, "17. Power to collect market fees. - The market committee shall collect market fees from the Licences in the prescribed manner on agricultural produce bought or sold by them in the market area at such rate as may be specified by the State Government, by notification in the official gazette, subject to a maximum of Rs. 2/- per hundred rupees worth of agricultural produce. [Provided also that Mandi Fee leviable on the sale or purchase of Mustard Seed shall be Rs. 1/- on one hundred rupees.] [Provided also that Mandi Fee leviable on the sale or purchase of Oil Seeds shall be Rs. 1/- on one hundred rupees.]" "28. Penalty of contravention of certain provisions. - (1) Whoever contravenes the provision of section 4 shall, on conviction, be punished with simple imprisonment for a term which may extend to 3 months and with fine which may extend to two thousand Rupees and in case of continuing contravention, with a further fine which may extend to five hundred rupees for every day during which the contravention is continued after the first conviction. (2) 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 which may extend to three months and with fine which may extend to one thousand rupees. The Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay to the market committee, the amount of market fees due and may, in his discretion, also recover summarily and pay to the market committee such amount, if any, as he may fix as the cost of prosecution. (3) Whoever obstructs the secretary or officer authorised for the purpose by the State Government, in entering any shop, godown, factory or any place or taking out the copies of entries in the accounts, registers or other documents or seizing the documents under section 27-B shall, on conviction, be punished with simple imprisonment for a term which mat extend to three months or with fine which may extend to five hundred rupees or with both; and in case of subsequent contravention, with simple imprisonment for a period upto three months and with a fine which may extend to one thousand rupees for every such contravention. (4) Whoever contravenes any provision of this Act shall, if no other penalty is provided for the offence in this Act, be punished with fine which may extend to five hundred rupees." A perusal of Section 17 of the Act of 1961 shows that the market committee has been empowered to collect market fees from the Licences in the prescribed manner on agricultural produce bought or sold by them in the market area at such rate as may be specified by the State Government, by notification in the official gazette, subject to a maximum of Rs. 2/- per hundred rupees worth of agricultural produce. Sub-section (2) of Section 28 of the Act of 1961 provides 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, which may extend to three months and with fine which may extend to one thousand rupees. The Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay to the market committee, the amount of market fees due and may, in his discretion, also recover summarily and pay to the market committee such amount, if any, as he may fix as the cost of prosecution.
(3.) A learned Single Judge of this court in Raj Kumar v. State of Rajasthan - 1985 RLW 451, while relying on the judgment of the Supreme Court in State of Bihar v. Dev Karan Nansi - AIR 1973 SC 908, in para 8 to 12 of the report, held as under:- "8. 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 payment of the market fee on Monday of every week. This provision again casts a mandate on the trader to pay the market free. 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. 9. 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, that offence should be taken to be a continuing offence. 10. Here, as discussed above, the law casts a duty on a trader to pay the market fee. This duty is so sacrosanct that in case of its breach it carries a penal provision for the payment of penalty at the rate of one paisa per rupee on the market fee from the date of default till it is paid. This makes the offence of non-payment of market fee a continuing offence. 11. The Preamble of the Act shows that it was enacted for the better regulation of buying and selling of the agricultural produce and the establishment of market for agricultural produce. The Act is a piece of welfare legislation which is in the interest of both the trader and the producer of agricultural produce. The Act reveals that the money available by means of the collection of market fee is a major source of the income of the Samiti. If this source of income is jeopardised or is defected in one or the other way, the functioning of the samiti may become extremely difficult. The Welfare activities of Samiti, which are in the interest of producers and the traders, may come to a stand-still in the absence of funds. Therefore, keeping in view the object and purpose of the Act, which is to ensure the welfare of the producers as well as the traders, it can be said without the least hesitation that the offence of not paying the market fee is of continuing nature. The accused were under a legal obligation to pay the market fee on the due date. Their failure to pay the market fee makes it a continuing offence for the entire period till it is paid. 12. Since the offence involved is a continuing offence, it falls out side the inhibitory mandate in Section 468 Cr.P.C. Section 472, Cr.P.C. makes an exception in the case of a continuing offence. For a continuing offence, a fresh period of limitation runs at every moment of time during which the offence continues. Thus Section 472 of the Act is a proviso to the provisions of Section 468 Cr.P.C. If an offence is governed by Section 472 for the purpose of limitation, the stringent provision contained in Section 468, Cr.P.C. are not applicable. The offence the nonpayment of market fee in the instant case, as held above, is continuing offence. As such, it is governed by Section 472 and not by the provisions of Section 468, Cr.P.C. for the purpose of limitation. The cognizance of the offence, therefore, cannot be said to be time barred." ;