STATE OF MAHARASHTRA Vs. DEVRAJ TULSI

JUDGEMENT

(1.) THESE are eight criminal appeals against the orders passed by the learned Presidency Magistrate 8th Court, Girgaum, Bom. bay, acquitting the accused in each case. The eight accused were charged with having committed offences punishable under Section 471. City of Bom. bay Municipal Act, III [3] of 1888, in so fat as they failed to afford to the owner of the premises facilities as ordered by the Chief Judge of The Court of Small Causes for enabling the landlord to comply with municipal requisitions under Section 354 of the Act and thereby contravened Section 507 (3) of the Act. The eight accused were the tenants of The owner of she building and the Municipality had issued to the landlord a requisition under Section 354 of the Act to remove the structures etc. , which were in ruins or likely to fall. The tenants apparently did not hand over possession of the premises to the landlord, with the result that the landlord was enable to comply with the requisition of the Municipality. He, therefore, approached the Chief Judge of the Court of Small Causes for the requisite order under Section 507 of the Act and the Chief Judge made an order on 16 3 1960, ordering each of the accused to hand over to the landlord vacant possession of the premises on or before 16 4-1950 This again the tenants would not do, with the result that the tenants were guilty of having contravened the orders under Section 507 (9) of the Act. This default on the part of she tenants was taken by the Municipality to be a continuing offence, and in so far as on 3-7-1950, and thereafter the default continued, the Municipality took 3-7-1950, as the date of the commission of the offence and filed the complaints against each of the accused under Section 471 of the Act in the terms noted above. The learned Presidency Ma- gistrate before whom all these eight cases came for heading was of the opinion that the prosecutions were barred under Section 514 (c) of the Act which lays down that : ''no person shall be liable to punishment for any offence made punishable by this Act, unless complaint of such offence is made before a Presidency Magistrate within the time hereinafter prescribed in that behalf, namely :-- (c) if the offence be against any otter provision of this Act, within three months next after the commission of such offences. " he was of the opinion that the date given by the Chief Judge of the Court of Small Causes to vacate was 16-4-1950, and the prosecutions were barred, having been tiled more than three months after the commission of the offence, the date of the commission, according to him, being 16-4-1950. He rejected the plea which was urged before him by the learned Advocate for the Municipality that the offences committed by the accused were continuing offences, that therefore the period of limitation did not commence from 16-4-1950, and that the offence was just as well committed on 3-7-1950, as on any other date, and therefore the prosecutions which were hunched on 19-9-1950, were well within time. Accepting the plea of the learned Advocate for the defence, he, therefore, acquitted the accused in each Case. These criminal appeals have been filed by the Government of Bombay against these orders of acquittal.

(2.) THE point which arises before us is covered by the decision of Rajadhyabsha and Dixit JJ, in State v. Babu Gulam, Mohamed, cri Rovn. Apln, NO. 114 of 1951. The case there was, so far as the point of limitation was concerned, on all fours, with the case before us, In that case a requisition had been made by the Municipality on the landlord and on an application made by the land, lord to the Chief Judge of the Court of Small Causes an order had been made on 14-8-1950, directing the applicant and the other tenants to afford all reasonable facilities to the owner of the premises for complying with the requisition contained in the Municipal notice and 21-8-1950, was fixed as the date within which the tenants had to vacate in order to enable the landlord to carry out the requisition. The prosecution was, however, launched on 23-11-1950, and the question that arose for consideration of their Lordships was whether the prosecution was beyond time having regard to the provisions of Section 507 (3) of the Act. The learned Judges there came to the conclusion that if limitation commenced on 22-8-1950, the effect of Section 514 read with Section 323 of the Act was that the prosecution was obviously time-barred. They however proceeded to consider an argument which was advanced before them that the offence was a continuing offence, that the offence consist-ed in the refusal of the tenant in complying with the order made by the learned Chief Judge and the order made by the learned Chief Judge was that the tenant, viz. , the present applicant, should vacate the premises and that therefore there was after the period of eight days a refusal on the part of the applicant to vacate the premises and the refusal continued because the order was not com-plied with. The learned Judges, therefore, hold that there was as much on 22-8-1950, a refusal on the part of the applicant to vacate the premises as it was on 23-8-1950, and an the following days and the prosecution was filed by the Municipality on 23-11-1950, and it was clear there are that the prosecution was well within time. The learned Judges, therefore, hold that the offence being a continuing offence, the period of three months within which the prosecution should have been launched was to be calculated with reference to the date or dates during which the offence was continuing.

(3.) THIS ratio without anything more would have been determinative of the appeals before us, The learned advocates, however, who appeared for the respondents in the appeals before us sought to distinguish this case and also attempted to argue that the ratio of the decision of Raja-dhyaksha and Dixit J. J. was wrong, particularly, having regard to the two decisions of our appellate Court reported in Emperor v. Bechandas, 32 Bom. L. R. 768 and Emperor v. Karsandas Govindji, 44 Bom. L. R. 756. We, therefore, listen-ed to the arguments which were advanced before us, which, if accepted, would either make us differ from the ratio of the decision of Raja-dhyaksha and Dixit JJ. or refer these criminal appeals to a full bench.