M S UPADHYAY Vs. MISTRI JAYANTILAL HARGOVINDDAS

JUDGEMENT

(1.) The respondents in these appeals were tried before the learned judicial MagistrateS Mansa in different Criminal Cases for an offence punishable under sec. 192-A of the Gujarat Panchayats Act 1961 (hereinafter to be referred to as `the Act) on the allegation that they brought within the octroi limits of the Nagar Panchayat or Mansa in Vijapur Taluka their public carriers without payment of octroi duty and thereby committed this offence. These appeals involve common question of law and some common questions of facts and therefore with the consent of the learned advocates they are heard together and are being disposed of by this common judgment. 2 The facts leading to the filing of these Criminal Cases are stated iq details in the judgment delivered by the learned Judicial Magistrate in 211 these cases and therefore it is not necessary to reiterate them in this judgment. The allegations made in all the cases are almost of similar nature. There is only difference in dates in some of the cases but the fact is that each of these complaints was filed on the same day viz. 12-2-77. To indicate as to what is the case of the prosecution against the accused in these cases I would refer to the facts of Criminal Case No. 841 of 1977 out of which Criminal Appeal No. 1315 of 1979 has arisen. On 12-12-1977 Manharlal Shankerlal Upadhyaya serving as the Secretary of Mansa Nagar Panchayat filed this criminal complaint against Jayantilal Hargovinddas Mistry owner of Shri Rajesh Transport Co. and alleged therein that the accused had brought within the octroi limits of Mansa Nagar Panchayat his truck. He further alleged that the accused was bound to pay octroi in respect of the said truck and he knew that he was bound to pay the same but with intent to defraud the municipality he brought within the octroi limits his truck without payment of octroi on the same and it was kept within the octroi limits of the Nagar Panchayat and had thereby committed the offence of not paying octroi which he was liable to pay. It is also alleged in this case that a notice was sent by registered post and it was received by him and another notice was sent through a peon but the accused did not accept the same and hence it was thrown on his body. On these allegations the complaint was filed. It was ordered to be registered and summnons was ordered to be issued against the accused by the learned judicial Magistrate. It may be mentioned here that it is nowhere mentioned in this complaint as to on what date or in which month or in which year the truck was brought within the limits of the Nagar Panchayat of Mansa. It was stated in the complaint that the complainant was authorised by the General Body of the Nagar Panchayat by a resolution dated 31-8-1977 to file the complaints. In the complaints of other accused also similar allegations were made with some difference here or there but it is pertinent to note that even in those complaints. the date. month or year of bringing the trucks within the octroi limits have not been mentioned. Then on 13 applications were given in all the cases by the complainant stating therein that the offence of non payment of octroi was a continuing offence and therefore there was no bar of limitation as provided by sec. 468 Criminal Procedure Code. It was also stated in the said applications that even if the complaint was balled by sec. 468 of the Criminal Procedure Code then the delay may he condoned. In these applications also it is nowhere mentioned as to on what date or in which month or in which year the truck was brought within the limits of the Nagar Panchayat without payment of octroi duty. The facts of these applications did not disclose that the complainant had no knowledge about the entry of these vehicles soon after they were brought within the limits of the Nagar Panchayat and. when he came to know about the same later ands therefore the complaints could not be filed earlier. In all these applications it is stated that inquiry was made from the office of the R.T.O. as to when the vehicle was registered and at which address and after getting confirmation from the R.T.O. on 24-6-1977 that the vehicles were registered in the names of these respective accused and the address was given as that of Mansa. these complaints were filed after obtaining sanction from the Nagar Panchayat.

(2.) The learned judicial Magistrate. without applying his mind whether the offence was a continuing one or whether the facts stated in the complaints made our sufficient cause for condoning the delay or whether in the interest of justice delay should be condoned passed an order as follows below the applications in all the cases:-

(3.) With respect to the learned Judicial Magistrate Mr. S. M. Pirzada who took cognizance of the offence and who condoned the delay in filing the complaints in this case the complaint does not disclose as I stated earlier the date of the offence and the learned Judicial Magistrate should not have issued process without ascertaining as to what was the date or dates of the offence according to the prosecution in the present case. The complainant being a public servant it was not necessary to examine the complainant under sec. 200. Cri. Pro. Code but when the complainant did not disclose the date of the offence the learned Judicial Magistrate should not have mechanically issued the process and he ought to have called the complainant and examined him under sec. 200 of the Code for gathering details from him as regards the date of the offence in each case. So far as the question of condoning delay is concerned the applications filed in these cases do not on the face of it disclose any cause which can be said to be a cause for condoning the delay. It is not mentioned in the applications that the complainant did not know till a particular date that the offence was committed. It is also not mentioned in the complaint that the complainant did not know till a particular date that the particular accused had committed the offence. On the contrary it appears from the applications in all the cases that the complainant very well knew that these public carriers were brought within the octroi limits and were seen by him almost daily for a period of more than six months before the filing of these complaints. Simply because the complainant gathered some information from the office of the R.T.O. on 24-6-1977 that can not be a cause for condoning the delay. In fact it appears that as per the say of the complainant he knew right from the beginning from the day the vehicle was brought within the octroi limits that the vehicle was brought in the said limits and even then nothing was done till these complaints were filed in the month of February 1978. I may mention here that even the Nagar Panchayat passed resolutions in the month of February 1977 sanctioning the prosecution of the accused in all these cases. That means that the Nagar Panchayat even came to know before February 1977 that these offences were committed by these accused and the Panchayat even took decision in that month to prosecute the accused. The Panchayat had thus sufficient material to file complaints against the accused even in the month of February 1977 and even then no action was taken upto February 1978. The complainant has also mentioned in the complaint that whenever the vehicle was brought within the octroi limits. the accused was bound to pay octroi. This statement is on the face of it an incorrect statement of law. Octroi is only to be paid for the first time when the vehicle is brought within the octroi limits for consumption use or sale as the case may be. Sec. 2(20) of the Act says that octroi or octroi duty means a tax on the entry of goods into a gram or nagar for consumption. use or sale therein. This clearly shows that octroi is to be paid only once and that too at the time of the first entry for consumption use or sale. as the case may be. Even the complainant admitted in his evidence that octroi is required to be paid only once and that is obvious. The complainant also mentioned in the applications that the offence was a continuing one. Now if non payment of octroi was made an offence then certainly we can say that the offence continues till the octroi is paid and that way the offence will be a continuing one but sec. 192A penalises the introduction of goods which are liable to the payment of octroi within the octroi limits upon which the payment of the octroi due on such introduction has neither been made nor tendered. What is made punishable is not the non payment of octroi but introduction of goods or animals on which octroi duty though payable is not paid is an offence and that offence is complete as soon as the goods or animals are introduced within the octroi limits. In view of this. it cannot be said with any stretch of imagination that the offence punishable under sec. 192A of the Act is a continuing offence.