# STATE OF BIHAR v. DEOKARAN NENSHI

- **Citation:** [1973] 1 S.C.R. 1004
- **Court:** Supreme Court of India
- **Decided:** 1972-08-24
- **Bench:** J.·M. Shelat, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-v-deokaran-nenshi-5647
- **Pages:** 6

## Headnote

Mines .Act 1952-S. 66-Failure to furnish returns-If
an ofje11ce
·<.-'<J\:ered by s. 70 or lvhether a continuing offence-Tests.
The respondents arc the owners of a. stone quarry in Bombay. Under
Regulation 3 of the Indian Metallif<rrous Mines Regulations 1926, an
o\\ner, agent or manager of a mine is required to forward to the District
l\1agistrate and to the Chief Inspectors annual returns in respect of the
preceding yeas in the forms prescribed on or before the 21st January in
c•ch year.
Under Section 66 of .the Mines Act 1952, a person omitting
. to furnish the returns
is Jiabie to pay a \fine which
may extend to
Rs. 1,000/·.
The respondents faileo to furnish to the Chief Inspector the annual
returns for the year 1!159
by the 21st January,
1960 even after
'varning from the Chief Inspector. A complaint, was filed in the Court
<if the Magistrate, Dhanbad, on April 12, 1961. Two
questions were
<lgitated before the trial Court, the High Court, and also before tbi> Court.
( l) That Dhanbad Court had no jurisdiction to entertain the complaint
and (2) that the complaint was basred by limitation under s. 79 of the
Mines Act 1952, which provided that no Court shall take cognizance of
.a.n offence under the Act unless a complaint was made \vithin six months
from the date o'f the offence. The explanation to the section providl!-ll
th.at if the offence in question
\~·as a continuing offence, the period of
limitation shall be computed \Vith
reference to every part of the time
.Juring \vhich the said offence continued.
Dismissing the appea1,
HELD : · ( 1) The failure to furnish, the annual returns by January 21.
in the succeeding year, is undoubtedly an offence punishable under s. 66
of the Mines Act.
A complaint has to
be filed under s. 79, \\ithin 6
months from the date of the offence; but as regards the question whether
the offence was covered by s. 79 or whether it was a continulng offence,
covered by the Explanation 1hereto, it was held that a continuing offence
is one which is susceptible of continuance and is distinguishable from th~
one which is committed once and for all. The distinctiori between the t?.·o
kinds of offences is bet\'\·een an act or omission which constitutes an off~
.cnce once and for all and an act or omission \vhich continue1, and there ..
fore, constitutes a fresh offence every time or occasion on whicll it conti ..
nues.
In the case of a continuing offence, there is thus the ingredient of
-continuance of the offence whlch is absent in the case of an offence
\Vhich takes place \Vhen an act or omlssion is committed once anU for all.
11006C-GJ
The London County Council v. Worley, [1894] 2 Q.B. 826, Butler and
l'itZJ:bhar, [1932] 2 K.B. 108, Vernev v. Marie Fletcher &
Sons Ltd.
ll909] I K.B. 444, Rex v. Talor, !1908] 2 K.B. 237 and Emperor v.
Karsandoz. A.I.R. Born. 326, referred to.
(ii) Regulation 3 read with s. 66 of tbe Mines Act, makes failure to
furnish annual returns 'for the preceding year by the 21st of January of
the succeeding year, an offence.
The language of Regulation 3 cf early
Gn<licates that a mine owner, or his agent, \\'ouJd be Hable to penalty, if
,\
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BIHAR v. DEOKARAN (She/at, J.)
1005'
he fails to furnish the returns on or before January 21 of the succeeding
year. The infringement, in the present case, therefore, o'7p.rs on J~u
ary 21 of the relevant year and is complete on the owner fa.ding to furn!Sh
the annual returns by that day. The Regulation does not lay down that
the owner would be guilty of an offence if he continues to c.arry o_n the
mine 'without furnishing the returns or that the offence continues tf the
requirement o'f Rcgulalion 3 is.not complied.with. In other words, Regul~
tion 3 does not render a continued d1sobechence or non-compliance of 1t
by itsdf an oll~nce.
Ther~forc, the complaint was time barred as
the
offence iu queoh<ln fell yi1thln 1hc substantive !?art .of s. 79 of the Act and
not under t~c Explanatinn attached to 1t and m vie

## Text

1004
STATE OF BIHAR
v.
DEOKARAN NENSHI
August 24, 1972
[J.·M. SHELAT AND H. R. KHANNA, JJ.]
Mines .Act 1952-S. 66-Failure to furnish returns-If
an ofje11ce
·<.-'<J\:ered by s. 70 or lvhether a continuing offence-Tests.
The respondents arc the owners of a. stone quarry in Bombay. Under
Regulation 3 of the Indian Metallif<rrous Mines Regulations 1926, an
o\\ner, agent or manager of a mine is required to forward to the District
l\1agistrate and to the Chief Inspectors annual returns in respect of the
preceding yeas in the forms prescribed on or before the 21st January in
c•ch year.
Under Section 66 of .the Mines Act 1952, a person omitting
. to furnish the returns
is Jiabie to pay a \fine which
may extend to
Rs. 1,000/·.
The respondents faileo to furnish to the Chief Inspector the annual
returns for the year 1!159
by the 21st January,
1960 even after
'varning from the Chief Inspector. A complaint, was filed in the Court
<if the Magistrate, Dhanbad, on April 12, 1961. Two
questions were
<lgitated before the trial Court, the High Court, and also before tbi> Court.
( l) That Dhanbad Court had no jurisdiction to entertain the complaint
and (2) that the complaint was basred by limitation under s. 79 of the
Mines Act 1952, which provided that no Court shall take cognizance of
.a.n offence under the Act unless a complaint was made \vithin six months
from the date o'f the offence. The explanation to the section providl!-ll
th.at if the offence in question
\~·as a continuing offence, the period of
limitation shall be computed \Vith
reference to every part of the time
.Juring \vhich the said offence continued.
Dismissing the appea1,
HELD : · ( 1) The failure to furnish, the annual returns by January 21.
in the succeeding year, is undoubtedly an offence punishable under s. 66
of the Mines Act.
A complaint has to
be filed under s. 79, \\ithin 6
months from the date of the offence; but as regards the question whether
the offence was covered by s. 79 or whether it was a continulng offence,
covered by the Explanation 1hereto, it was held that a continuing offence
is one which is susceptible of continuance and is distinguishable from th~
one which is committed once and for all. The distinctiori between the t?.·o
kinds of offences is bet\'\·een an act or omission which constitutes an off~
.cnce once and for all and an act or omission \vhich continue1, and there ..
fore, constitutes a fresh offence every time or occasion on whicll it conti ..
nues.
In the case of a continuing offence, there is thus the ingredient of
-continuance of the offence whlch is absent in the case of an offence
\Vhich takes place \Vhen an act or omlssion is committed once anU for all.
11006C-GJ
The London County Council v. Worley, [1894] 2 Q.B. 826, Butler and
l'itZJ:bhar, [1932] 2 K.B. 108, Vernev v. Marie Fletcher &
Sons Ltd.
ll909] I K.B. 444, Rex v. Talor, !1908] 2 K.B. 237 and Emperor v.
Karsandoz. A.I.R. Born. 326, referred to.
(ii) Regulation 3 read with s. 66 of tbe Mines Act, makes failure to
furnish annual returns 'for the preceding year by the 21st of January of
the succeeding year, an offence.
The language of Regulation 3 cf early
Gn<licates that a mine owner, or his agent, \\'ouJd be Hable to penalty, if
,\
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BIHAR v. DEOKARAN (She/at, J.)
1005'
he fails to furnish the returns on or before January 21 of the succeeding
year. The infringement, in the present case, therefore, o'7p.rs on J~u
ary 21 of the relevant year and is complete on the owner fa.ding to furn!Sh
the annual returns by that day. The Regulation does not lay down that
the owner would be guilty of an offence if he continues to c.arry o_n the
mine 'without furnishing the returns or that the offence continues tf the
requirement o'f Rcgulalion 3 is.not complied.with. In other words, Regul~
tion 3 does not render a continued d1sobechence or non-compliance of 1t
by itsdf an oll~nce.
Ther~forc, the complaint was time barred as
the
offence iu queoh<ln fell yi1thln 1hc substantive !?art .of s. 79 of the Act and
not under t~c Explanatinn attached to 1t and m view of the second ques1ion
TI1" ttr;t questio11 re•.arding jurisdktion requi1'ed no answers.
.
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[1009CI
CR1~11NAL APPELLATE JuR1so1cnoN : Cr. Appeal No. 208·
of 1969.
Appeal under Article 134(1) (c) of the Constitution of India
from the judgment and order dated April 17, 1969 of the Patna
High Court in Govt. Appeal No. 28 of 1967 under sec. 417 ( 1)
Cr. P.C.
S.C. Agariva/a, for the appellant.
G. L. Sanghi, D. N. Mishra and Mis J. B. Dadachanji & Co ..
for the respondent.
The Judgn1ent of the Court was delivered by
Shelat, i. Sec. 66 of the Mines Act, 1952 provides that any
person omitting inter a/ia to furnish any return, notice etc. in the
prescribed form or 111an11er or at or within the prescribed time required by or und'cr the Act to be made or furnish shall be punishable with fine which may extend to Rs. 1,000/-.
Sec. 79 however lays down that no court shall take cognizance of any offence
under this Act ·unless a complaint thereof has been made within
six months from the date on which the offence is alleged to have
been committed or within six 'months from the date on which the
alleged commission of the offence came to the knowledge of the
Inspector, whichever is later.
The Explanation to the section provides that if the offence in question is a continuing offence, the
period of lin~'.tation shall be computed with reference to every
point of time during which the said offence continues.
Under
Regulation 3 of the India Metalliferrous Mines Regulations, 1926,
an owner, agent or manager of every mine is required M> forward
to the District Magistrate and to the Chief Inspector annual returns in respect of the preceding year in the forms
prescribed
therein and on or before the 21st of January in each year.
The respondents are the owneJ.'s of a stone quarry situate in
Chandiwali in Greater Bombay. They failed to furnish to the
Chief Inspector the annual returns for the year 1959 by the 21st
of January, 1960.
On March 28, 1960, the Chief Inspector
drew their attention to the said failure and warned the respondents
1006
SUPREME COURT REPORTS
(1973] l S.C.R.
that if they failed to furnish the returns within two weeks from
the date of the said letter, that is, by April 11, 1960, proceedings
would be instituted against them under the Act.
On their failure
to do so despite the said warning, a complaint was filed
fn the
Court of the Magistrate, Dhanbad on April 12, 1961.
Two questions were agitated in the Trial Court in the High
Court and also before us.
One was regarding the jurisdiction of
the Court at Dhanbad, and the other was whether the complaint
was barred by limitation, it having been filed more than a year
after the default, which occurred on January 21, 1960.
Both the
questions go to the root of the matter, but in the view we take of
the second question, it would not be necessary for us to go into
the first question.
The failure to furnish the annual returns either in the prescrib·
ed forms or within the time prescribed for it, that is, by January
21, in the succeeding year, is undoubtedly an offence punishable
under s. 66 of the Act.
A complaint in respect of such an offence
has, under s. 79, to be filed. within six months from the date of
such default, in the present case January 21, 1960.
The question
then is whether the offence in question is covered by the substantive part of s. 79, or whether it is covered by the Explanation
thereto. If the offence is of the former kind, the complaint in
regard to it would be clearly time barred. It would not be so if
the offence is of tb kind, often called a continuin!J' offence, in
which event the Exμtanation to s. 79 would operate.
A continuing offence is one which is susceptible of continuance
and is distinguishable from the one which is committed once and
for all.
It is one of those offences which arises ont of a· failure to
obey or comply with a rule or its require;nent and which involves
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 there-
.fore, constitutes a fresh offence every time or occasion on which
it continrn:s.
In the case of a continuil)g offence, there is thus the
·ingrei:lient of continuance of the offence which is absent in the
case of an offence which takes place when an act or omission is
committed once and for all.
: A few illustrative cases would help to bring out the distinction
between the two types of offences.
. In England, the Trade Union Act, 1871 b~ s. 14 provided that
if any officer, member or other person being or representing him·
self to be a member of a trade union, by false representation or
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BIHAR v. DEOKARAN '(Shelat, J.)
1007
imposition obtained possession of any moneys books etc. of such
trade union, or, having the same in his possession wilfully withheld or fraudulently misapplied the same, a court of summary
jurisdiction would order such person to be imprisoned.
The
offence of withholding the money referred to in this section was
held to be a continujng offence, presumably because every day
that the mooeys were wilfully withheld an offence within the meaning of s. 12 was commkted.
[Best v. Butler and Fitzgibbon(')].
Jn Verney v. Mark Fletcher & Sons Ltd.('), the question again
was whether the offence for which the information was lodged
therein was a contin.uing offence.
Sec. 10(1) of the Factory and
Workshop Act, 190 I inter alia provided
that every fly-wheel
directly connected with steam, water or other mechanical power
must be securely fenced.
Its sub's. (2) provided that a factory
in which there was contravention of the section would be deemed
not to be kept in conformity with the Act.
Sec. 135 provided
penalty for an occupier of a factory or workshop if he failed to
keep the factory or workshop in conformity with the Act. Sec. 146
provided that information for the offennce under s. 135 shall be
laid within three months after the date at which the offence came
to the knowledge of the Inspector for the district within which the
offence was charged to have been committed.
The
r.ontention
was that in May 1905 and again in March 1908 the fly-wheel
was kept unfenced to the knowledge of the Inspector and yet the
information was not laid until July 22, 1908. The informatinn,
however, stated that the fly-wheel was unfen~ed on July 5, lC:.08,
and that was the offence charged. It was held that the breach of
s. JO was a continuing b,each on July 10, 1908, and therefore,
the information was in time. The offence under s. 135 read with
s. 10 consisted in. failing to .keep the factory in conformity with
the Act. Every day that the fly-wheel remained unfenced,
the
factory was kept not in conformity with the Act, and therefore.
the failure contin.ued to be an offence. Hence the offence defined
in s. 10 was a continuing offence.
[See also Rex v. Yalore( 8 )]
Sec. 85 of the W.etropolis Management Amendment Act,
1852
prohibited the erection of a building on the side of a new street
o~ Jess than fifty fee( in width, which shall exceed in. height the
distance from the front of the building on the opposite side of the
street without the consent of the London County Council and
imposed, penalties for offences against the Act and a further
penalty for every day during which such offence should continue
after notice from the County Council. The Court construed
s. ~5 to have laid do~n t.wo offences; (1 ) building to a prohibited
he1g;it: and ( 2 ~ contmumg such a structure already built after
rece1vmg a notice from the County Council. The latter offence
(]) [1932] 2 K.B, 108.
(3) [1908] 2 K.B.1237.
(2) (1909] I K.B. 444,
JOOS
. SUPREME COURT REPORTS
(1973] l SS.R .
was a continuing offence applying to any one who was guilty of
continuing the building at the prohibited height after notice from
the County Council. [The London County Council v. Worley(')]
In Emperor v. Karandas, (') the question was as to the proper construction of s. 390, sul;l-s. ( 1) of the Bombay City Municipal Act, 1888. That su~section provided that no person shall
newly establish in any premises any factory, in which it was intended that steam, water or other mechanical power >hould be employed without 'the previous pennission of the Commissioner, nor
shall any person work or allow to be worked any such factory
without such permission. The sub-section thus laid down two
distinct offences; (1 )establishing a new factory in which mechanical power was int.ended to be used without the permission, and
(2) working such a factory in which mechanical power was intended to be 11sed without permission. The High Court held that
the first offence will be completed when a new factory was establisted without pennission, an offence completed one and for all,
while the other offence would be committed whenever such a
factory without the permission was worked that is on every day
that it was worked without the permission: The High Court observed that though the expression 'continuing offence' was not
a very happy expression, it was very often used. A person may
not continuously work such a factory. He might work it one day
and not work it the next day, and then resume its working once
again. Therefore, the proper meaning to be attached to such an
offence was that whenever he worked such a factory he committed
an offence. The distinction between the two kinds of offences !av
between an act which constitutr-d an offence once and for all and
an act" which continued, and therefore, constituted a fresh offence
every time on which it continued. Similarly, in States v. Bhiwandiwala, (~) three offences were charged against
the
respondent:
(1 ) failury to submit a written hOtice of occupation of his factory
as required bys. 7(1) of the Factories Act, 1948, (2) failun: to
submit
an
application
for
registration
and
grant
of
licence as required by s. 6 of the Act read with rule 4 of the
Bombay Factories Rules, 1950, and (3) for using the premises
as a factory without a licence. The High Court held that the
held that the first two offences were offences completed on failure
to submit the notice and the application for registration and licence
and a complaint in respect of them would be barred if it wa~
lodged beyond the period of three month> from the date of the
offence under s. 106 of the Act. But a prosecution in respect of the
third offence would not be so barred as that offence was a continuing offence in the sense that using the premises as a factory
without registration and licence was an offence committed every
time that the premises were used as a factory. Likewise, in Bihar
(I) [1894)2 QB 826
(2) A.l.R. 1942 Dom. 126.
(3) l.L.R. [1955] Dom. 192.
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BIHAR v. DEOKARAN (She/at, J.)
1099
v. J. P. Singh, ( 1) the High Court of Patna held that conducting
a restaurant without having it registered and without maintaining
registers required by the Bihar Shops and Establishments
Act,
VIII of 1954 and the Rules framed thereunder were continuing
offences as every time a restaurant was run without its being regisstered and without maintaining the requisite registers was an offence, and therefore, 'the period of limitation unders. 36 of the Act
would begin· to run from the date of the occurrence of each of the
defaults. (s~e) also State v. Laxmi Narain(')
Reg. 3 read with s. 66 of 'the Mines Act makes failure to furnish
annual returns for the preceding year by the 31st of January of
the succeeding year an offence. The language of Reg. 3 clearly
indicates that an owner, manager etc. of a mine would be liable
to the penalty if he were to commit an infringement of the Regulation and that infringement consists in the failure to furnish returns
on or before January 21 of the succeeding year. The infringement
therefore, occurs on fanuary 21 uf the relevant year and is complete on the owner failing to furnish the annual returns by that day.
The Regulation does not Jay down that the owner, manager etc.
of the mine concerned would be guilty of an offence if he con·
tinues to carry on the mine without furnishing the returns or that
the offence continues until the requirement of Reg. 3 is complied
with. In other words, Reg. 3 does not render a continued disobedience or non-compliance of it an offence. As in the case of a
construction of a wall in violation of a rule or a bye-law of a local
body, the offence would be complete once and for all as soon as
such construction is made, a defauh occurs in furnishing, the returns by 1the prescribed date. There is nothing in Reg. 3 or in any
other provision in the Act or the Regulation which renders the
continued non-compliance an offence until its
requirement
is
carried out.
The High Court, in our view, was right in holding that the
complaint was time barred as the offence in question fell within
the substantive part of s. 79 of the Act and not under the Exnlanation attached to it.
The appeals, therefore, must fail and is dismissed.
s.c.
(1) 1963 Bihar Law Journal Reports, 782.
12) A. LR. 1957 A!I 343.
Appeal dismissed.
15-Lt72 Sup. Cf/73