JUDGMENT
Bhattacharjee, J.
1. The only point urged on behalf of the petitioners in these two cases is that the impugned prosecutions are barred by limitation under the provisions of Section 468, Criminal Procedure Code. The alleged offences for which the prosecutions have been launched and processes issued are punishable under Section 162(1) and Section 220(3) of the Companies Act with fine only and having undisputedly been filed beyond six months after the alleged defaults were made, would be barred under Section 468 of the Code, unless they can be treated as “continuing offences” within the meaning of Section 472 of the Code. The only question, therefore, arising for our consideration in these cases is whether the offences
punishable under Sections 162(1) and under Section 220(3) of the Companies Act are “continuing offences” within the meaning of Section 472, Criminal Procedure Code. An affirmative answer will warrant the discharge of the rules ; but a negative answer would require us to make the rules absolute and quash the prosecutions. We have decided to return an affirmative answer both on principle as well as on authorities. Here are the reasons.
2. The expression “continuing offence”, far from being a stranger, was quite a regular visitor to our criminal domain, particularly in respect of offences which are not mala in se, but are only mala prohibita, e.g., running a factory without a proper licence or using a structure erected without the necessary permission or a proper plan and the like ; but, after the passing of the Code of Criminal Procedure, 1973, it has now become a permanent entry in our criminal jurisdiction in view of Section 472 of the Code and applies to all offences, whether mala in se or mala prohibita, which are punishable with fine only or with imprisonment for a term not exceeding three years.
3. The expression “continuing offence” or “continuous offence” does not appear to have any fixed concept; its meaning, nuances and effect vary from statute to statute. The Supreme Court, in Bhagirath Kanoria v. State, has observed that the expression, not having any fixed connotation or static import, is difficult to be defined and put into a strait-jacket formula. A Division Bench of this court, in Eastern Paper Mills Ltd. v. State [1988] Cal Crl. LR (HC) 176 ; [1989] 2 Cal LT (HC) 38 has, however, observed that “the difficulty in interpreting as to whether a particular offence is a continuing one or not has been removed by the decision” of the Supreme Court in Bhagirath Kanoria, . With respect, we would only say how we wished that it was so.
4. The expression “offence” means, as would appear from its definition in the Criminal Procedure Code or the Penal Code or the General Clauses Act, “any act or omission made punishable by any law for the time being in force”. An offence is not “continuing” or “continuous” merely because the effect thereof continues. An offence of hurt or grievous hurt is not a continuing one simply because the effect of the hurt caused has continued for quite a length of time. A distinction must be made between the offence and its effect and the continuation of the latter would not make the former a continuing offence and reference may be made to the observation of the Supreme Court in Balakrishna Savalram, , made in the context of Section 23 of the preceding Limitation Act, 1908, dealing with “continuing wrong”. But “wrongful restraint” or “wrongful confinement” may be a continuing offence so long as the restraint or the confinement continues because it would be within the power of the offender to
continue or to discontinue the offence even after the offence or restraint or confinement is committed for the first time. The offence of constructing mills or factories without a permit or licence required by law would be complete with the completion of the construction ; but when the law provides that no mill or factory shall be run without a permit or a licence, the offence may be one continuing for the entire period during which the mill or factory is so run. For, as we have said, in that case, the offender could continue the commission of the offence as well as discontinue the same. We would like to think that if, once an offence is committed, it is no longer in the power of the offender to effect its continuance or discontinuance, the offence cannot be said to be a continuing one.
5. From that point of view, an offence committed as a result of failure to submit return, balance-sheet, profit and loss account or other documents within the date or period prescribed therefor, as required under Section 160, 161 or 220 should not, ordinarily, be a continuing offence, but an offence completed on the expiry of the date or the period. Because, once documents are not submitted and the period prescribed for their submission has expired, it is no longer in the hands of the defaulter to continue the default or to discontinue the same. The default already being complete, the defaulter could not continue to do or repeat that very default any more or undo it.
6. The decision of the Supreme Court in State of Bihar v. Deokaran Nenshi, is a clear authority for the view that when law requires submission of returns within a certain period, and there is failure to do so, such non-compliance is ordinarily complete on the expiry of the period and is not a continuing offence. That was a case under the Mines Act, 1952, Section 66 whereof enjoined submission of the annual return within the time prescribed and the Supreme Court rules (at p. 910) that since the relevant “regulation does not lay down that the owner, manager, etc., of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of the regulation is complied with”, non-compliance with the provisions resulting from non-submission of the return within the prescribed period could not be a “continuing offence”. As a logical corollary, the inference would be that, if the relevant law has not only made the default punishable as an offence, but has further provided that the penal liability therefor would also continue until the default is removed and that the continuance of the default is also punishable so long it continues, the continuance of the default would be a “continuing offence”.
7. If that is so, then, looking at the provisions of Section 162(1) and Section 220(3) of the Companies Act, it would, in our view, be legitimate to
hold that the offence punishable thereunder is and has been made a continuing one. As already noted, an “offence” is an act or omission made punishable by law. Section 220(3) provides that the offence thereunder, i.e., failure to submit the balance-sheet, etc., within the period prescribed shall be punishable with like punishment as provided in Section 162 and Section 162(1) provides that if a company fails to comply with any of the provisions contained in Section 159, Section 160 and Section 161, which enjoin filing of the annual return and other documents within the period prescribed, “the company and every officer of the company who is in default shall be punishable with fine which may extend to fifty rupees for every day during which the default continues”. If an “offence” is, as it obviously is, a commission or omission, contravention or non-compliance, violation or default, made punishable by law and if the penal liability for the omission or default in filing the return etc. within the prescribed period has been continued till the omission or default is made good and has been made punishable de die in diem for the entire period during which the omission or default continues, then such omission or default has obviously been made a continuing offence. In the Supreme Court decision in Deoharan Nenshi , the failure to submit the annual return within the prescribed period was held not to be a continuing offence because, as already noted , there was nothing in the relevant law making the penal liability continue as long as the default in filing the return continued. This Supreme Court decision in Deokaran Nenshi, , therefore, should be treated as an authority for the view that, if the penal liability for the default is continued and continuance of the default is also made punishable, say, with fine for each day of such continuance, as in Section 162(1) of the Companies Act, the offence would be a continuing one.
8. It must be noted, however, that, in the later decision of the Supreme Court in Bhagirath Kanoria, , failure to pay the employer’s contribution under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, within the time prescribed therefor has been held to be a continuing offence. A number of decisions of different High Courts, including two Division Bench decisions of our High Court, noted hereafter, have, however, held the offence not to be a continuing one. As already indicated, even where an offence does not intrinsically appear to be of continuing nature, it would nevertheless have to be treated as a continuing one if the Legislature indicates to that effect It is true that the object of the Act weighed very much with the Supreme Court in Bhagirath Kanoria, . But even that apart, we are inclined to think that there are indications in the Act itself, e.g., in Section 14C, that the Legislature viewed the offence of
non-payment of the contribution to be a continuing one. Section 14C provides that, while convicting an offender for the offence of making default in payment of any contribution, the court may, in addition to the awarding of punishment, direct the offender to pay the amount within a specified period and Section 14C(2) provides that, as and when such an order is made directing payment of the amount within a specified period, the offender, i.e., “the employer shall not be liable under this Act for the continuation of the offence during the period”. If the Legislature regarded the offence not to be a continuing one, but to be complete once for all with the expiry of the period prescribed by the law for payment, it would have been all the more so after conviction, and it could not have been necessary for the Legislature to provide, as provided in Section 14C(2), that the offender “shall not be liable …. in respect of continuation of the offence” during the period allowed by the court for post-conviction payment. If the offence was not a continuing one, the question of continuation of the offence during the period allowed by the court for post-conviction payment could not at all arise. But as indicated hereinbefore, even without the aid of this decision in Bhagirath Kanoria, , we have already, on principle as well as on the authority of the Supreme Court in Deokaran Nenshi, , held the offences under Section 162(1) and Section 220(3) to be continuing offences.
8. This should have been sufficient to dispose of the cases and to discharge the rules. But, our attention has been drawn to a series of Division Bench decisions of this court which appear to have taken a contrary view and as a later Bench should ordinarily and, as far as possible, follow decisions rendered by Benches of co-ordinate jurisdiction, we would have to govern ourselves accordingly unless we can justify our departure.
9. The Divison Bench decision in National Cotton Mills v. Assistant Registrar of Companies [1984] 56 Comp Cas 222 (Cal) ; [1984] Tax LR 2043 appears to be one directly on the point holding that an offence under Section 162(1) of the Companies Act, 1956, is not a “continuing offence” within the meaning of Section 472, Criminal Procedure Code, and, therefore, a complaint therefor would be barred by limitation under Section 468(2), if filed beyond the period prescribed. The Division Bench appears to have relied mainly on the Supreme Court decision in Deokaran Nenshi and also on two earlier Division Bench decisions of this court in Wire Machinery Manufacturing Corporation v. State [1978] Cal HN 293 ; [1978] Cri LJ 839 ; [1979] 49 Comp Cas 197 and in Krishna Kumar Dalmia v. State [1981] 2 Cal HN 301, both being decisions under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. In both these earlier Division Bench decisions, the offence for the failure to deposit the employer’s contribution within the time prescribed was, no doubt, held not to be a continuing offence. But this view has
now been fully overturned by the Supreme Court in Bhagirath Kanoria, and, therefore, the Division Bench decision of this court in National Cotton Mills [1984] 56 Comp Cas 222 ; [1984] Tax LR 2043, being based to a great extent on the ratio of the aforesaid two earlier Division Bench decisions, must be taken to have lost a good deal of its force.
10. As for the Supreme Court decision in Deokaran Nenshi, , where the offence of failure to submit the return within the prescribed period under the Mines Act was held not to be a continuing one in the absence of any provision continuing the penal liability for such non-compliance after the period prescribed, the Division Bench in National Cotton Mills [1984] 56 Comp Cas 222 purportedly relied thereon and held that continued non-compliance under Section 162(1) of the Companies Act was also not a continuing offence. Apart from our view that Section 162(1) by making the penal liability for the default in submission of the return to continue even after the period prescribed and providing punishment for every day till the default is removed, has made such continued non-compliance a continuing offence, we would like to point out that the later decision of the Supreme Court in Bhagirath Kanoria, appears to be an authority for the view that such express provision making continued non-compliance also an offence is not always a sine qua non for an offence becoming a continuing one.
11. It should be noted that the Supreme Court in Deokaran Nenshi, as well as in Bhagirath Kanoria, , both rendered by two-judge Benches, have referred to the same set of five precedents, three English and two Indian and while in Deokaran Nenshi, , the approval might not have been that explicit, in Bhagirath Kanoria, , the two-judge Bench expressly declared that it did “adopt the reasoning in those cases”. One such decision is London County Council v, Worley [1894] 2 QB 826 where, construing the provisions of Section 85 of the Metropolis Management Amendment Act, 1862, prohibiting erection of a building on the side of a new street in certain circumstances and providing penalty for such erection and a further penalty for every day during which the offence would continue, it was held that, while the offence of erection of the building was complete with its erection, its continuance made punishable de die in diem was a continuing offence. In fact, this is in perfect consonance with the observation made in Deokaran Nenshi, that a continuing offence “is one of those offences which arise out of failure to obey or comply with a rule or its requirement and which involve a penalty the liability for which continues until the rule or its requirement is obeyed or complied with”. We would like to think that the offences punishable under Section 162(1) and
also Section 220(3) of the Companies Act squarely come within this principle, as they arise out of failure to obey or comply with the provisions of Sections 159, 160, 161 and 220(1) requiring submission of returns, balance-sheet and other documents and which, as the penal provisions therefor in Section 162(1) provide in express terms, involve a penalty of daily fine the liability for which continues for every day till the default continues and the requirement is not obeyed or complied with. As already pointed out, the offence of failure to submit return in Deokaran Nenshi, was held not to be a continuing offence in the absence of analogous provisions in the Mines Act, 1952, and the regulations thereunder and the later Supreme Court decision in Bhagirath Kanoria, has accordingly ruled that the decision in Deokaran Nenshi, “must be confined” to such cases Only, that is, cases where such default in submitting the return has been made penal, but the penal liability has not been continued so long as the default continues.
12. The observations in the later Supreme Court decision in Bhagirath Kanoria, , would a fortiori make the offence punishable under Section 162(1) or Section 220(3) a continuing offence. As already indicated, that was a decision under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, the provisions whereof require the employers to deposit the contribution within the period prescribed, but the penal Section does not expressly provide that non-compliance therewith would render the employer liable to any continued or further penalty until payment. But still the Supreme Court observed thus :
“The appellants were unquestionably liable to pay their contribution to the provident fund before the due date and it was within their power to pay it, as soon after the due date had expired as they willed. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the fund, they committed a fresh offence.”
13. We have no manner of doubt that these observations would apply to an offence under Section 162(1) or Section 220(3) with all their rigour. True, late submission of the documents beyond the period prescribed would not absolve the offenders of their initial guilt under those Sections, but would at once snap the recurrence of the offence made punishable from day to day. In view of the principle enunciated in Deokaran Nenshi and amplified further in Bhagirath Kanoria, , we would have to hold the
offences under Section 162(1) and Section 220(3) to be continuing offences and would hold further, and this we say with all respect, that the decision of the Division Bench in National Cotton Mills [1984] 56 Comp Cas 222 (Cal) can no longer be taken to be good law, particularly in view of the earlier Division Bench decisions in Wire Machinery [1978] Crl LJ 839 ; [1979] 49 Comp Cas 197 and in Krishna Kumar [1981] 2 Cal HN 301 relied on in National Cotton Mills [ 1984] 56 Comp Cas 222 (Cal), having been overturned by the Supreme Court and the earlier decision of the Supreme Court in Deokaran Nenshi, , referred to therein, having been duly explained and distinguished by the Supreme Court in Bhagirath Kanoria, . The Division Bench in National Cotton Mills [1984] 56 Comp Cas 222 (Cal) could not obviously consider the Supreme Court decision in Bhagirath Kanoria, as the latter was decided later.
14. But there appears to be yet another Division Bench decision of this court in Eastern Paper Mills [1988] Cal Crl LR (HC) 176 where, after referring to the decisions of the Supreme Court in Deokaran Nenshi, , as well as in Bhagirath Kanoria, , a view has been taken contrary to what we propose to take here, though, on the basis of those very two Supreme Court decisions, but without any reference to any of the Division Bench decisions of this court referred to hereinbefore and it has been held that the offences under Section 162(1) or Section 220(3) are not continuing offences.
15. It is trite to say that a Bench of this court should normally accept a decision of a co-equal Bench as binding. But there are high authorities, for the view that, even though the same should be the normal practice, there are circumstances where a Bench may not follow and may have to depart from a precedent of co-ordinate jurisdiction. To borrow from the announcement of the House of the Lords on July 26, 1966, while the use of precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases and the same provides some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules, too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of law. While certainty, in the field of law, may be, and in fact is, most desirable, the craze for certainty cannot be allowed to stultify the proper and logical development of law. We have also the high authority of Sir Asutosh speaking for a Division Bench of this court in Virjiban Dass Moolji, AIR 1921 Cal 169, 171, where the eminent judge, after referring to various English decisions on the point, ruled thus :
“The answer to the question, what regard is to be had to an earlier decision of this court of co-ordinate jurisdiction, must depend upon a variety of circumstances. One important factor is the length of time during which it stood unchallenged. Another factor, possibly of greater importance, is whether the decision gives adequate reasons for the conclusion embodied therein. But the position is indefensible on principle, that although a judge may feel absolutely convinced that the decision produced before him is erroneous in law, he is still bound to decide against his own opinion. To take such a view is to hold that the judge may be reduced to an automaton by the production of an earlier judgment”.
16. Now, the decision in Eastern Paper Mills [1988] Cal Crl LR (HC) 176, having been decided on May 13, 1988 (and reported obviously later), cannot be regarded to have stood for such length of period so as to attract the first factor referred to in those observations. And we may add, obviously with great Vespect, that the decision, after referring to the Supreme Court decisions in Deokaran Nenshi, and in Bhagirath Kanoria, , has not spelt out any adequate reasons as to how those two decisions, under two other different enactments, could lead us to hold that the offences under Section 162(1) and Section 220(3) of the Companies Act are not continuing offences. No notice at all appears to have been taken of the observation in Deokaran Nenshi, that a continuing offence “is one of those offences which arises out of failure to obey or comply with a rule or its requirement and which involves a penalty the liability for which continues until the rule or its requirement is obeyed, nor of the indication in that judgment (at page 910) that the absence of any provision in the relevant law continuing the penal liability for the continued disobedience or non-compliance was the ground for holding the offence to be non-continuous, nor the provisions of Section 162(1) and Section 220(3) providing for continuation of the penal liability and for continued punishment for the continuance of the default were duly taken note of. The observations in Bhagirath Kanoria, that even though belated compliance “could not have absolved them of their original guilt, it would have snapped the recurrence” and that “each day they failed to comply with the obligation to pay their contribution to the fund, they committed a fresh offence” were not also properly adverted to in the context of Section 162(1) and Section 220(3), whereunder, the offence was made punishable till the default continued and belated submission of return and other documents would have snapped the continuance of the offence.
17. We would, accordingly, with great respect, regret our inability to follow the decision in Eastern Paper Mills [1988] Cal Crl LR (HC) 176 and, for the reasons stated hereinbefore, we would, to use a jurisprudential phrase,
hold the decision, to have been arrived at sub silentio. A decision passed sub-silentio ceases to have, as pointed out in Salmond’s Jurisprudence, 12th edition, pages 153 and 154, any binding efficacy. That is also what was held by Sir Asutosh in Virjiban Das Moolji, AIR 1921 Cal 169. To borrow from Salmond, a decision passes sub silentio in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in one way because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in that manner unless it also decided point B in the same manner ; but that point B was not adverted to and considered in the manner it was necessary and thereby point B is said to pass sub silentio.
18. We would, therefore, dismiss the revisional applications and discharge the rules and would direct the records of the two cases, along with a copy of our order, to go down at once to the court below for disposal of the cases as expeditiously as possible and in accordance with law.
A.K. Nandi, J.
19. I have had the advantage of going through the judgment of my learned brother Bhattacharjee J. While agreeing with the process of his reasoning and the conclusion arrived at, I prefer to add a few lines to express views of my own.
20. No precise definition of a continuing offence has been given in any statute, and the Supreme Court has held that it is not possible either to give a precise definition. Nevertheless, it has been sought to be defined in different judgments of the Supreme Court as also of the High Courts. Bhattacharjee J. has dealt with different decisions in his judgment. I shall deal with some of them only in order to express as to how I have understood them. In State of Bihar v. Deokaran Nenshi, , it was held that an act which continued constituted a fresh offence everyday on which it continued. A distinction is sought to be struck down an offence committed once and for all and a continuing offence. If law does not render a continued disobedience or non-compliance an offence, it is not a continuing offence. In order to constitute a continuing offence, it must arise out of failure to obey or comply with a rule or its requirement and which involves a penalty the liability for which continues until the rule or its requirement is obeyed or complied with. A continuing offence is one which is susceptible of continuance and is distinguishable from one which is committed once and for all. It was a case under Section 66 of the Mines Act. Applying these tests, the Supreme Court held that the offence was committed once and for all, and in that view of the matter, the offence complained of was held to be not a continuing offence.
21. In Bhagirath Kanoria v. State of Madhya Pradesh, , the default in payment of contribution by the employer to the provident fund was held to be a continuing offence. It was an offence under Section 14(2)(a) of the Employees’ Provident Funds and Miscellaneous Provisions Act. The Hon’ble judges noticed the case of State of Bihar v. Deokaran Nenshi, and did not strike a note of dissent. Nevertheless the offence was held to be a continuing offence. It is evident from paragraph 19 of the judgment that the object and purpose of the statute very much weighed with the Hon’ble judges in holding the offence to be a continuing offence.
22. We must not confuse between omission day to day constituting a continuing offence and an omission visited with a daily fine. An act or omission visited with daily fine is not necessarily a continuing offence.
23. The distinction is eloquent in United Savings and Finance Co. P. Ltd. v. Deputy Chief Officer, Reserve Bank of India [1980] 50 Comp Cas 518 (Cal). It was an offence under Section 58(b)(2) of the Reserve Bank of India Act. The default was not only punishable with a fine but the continuance of default was visited with daily fine. The relevant part of the provision reads as follows ( at page 522 ) :
“. … if he persists in such failure or refusal, with further fine which may extend to one hundred rupees for everyday, after the first, during which the offence continues.”
24. In view of the above authorities, I am of the opinion that the imposition of daily fine was not the reason for characterising it as a continuing offence. On the contrary, the persistent failure or refusal to comply was the reason for holding it to be a continuing offence. Daily fine prescribes only the measure of penalty, the object being enforcement of strict compliance with law and early compliance after default. The initial default thereby does not necessarily become a continuing offence. Initial default is an offence committed once and for all.
25. We may, therefore, say that a continuing offence is an act or omission over which the offender can exercise his control irrespective of the penal provision of daily fine. Law may cast an obligation upon a person either to discontinue an act or abstain from continuing an omission. If the obligation continues and it is not discharged, the default constitutes a continuing offence. If continuance of an act or omission is an offence, it shall be a continuing offence until the act is discontinued or the omission is abated. If this test is applied in the cases before us, the offences are to be regarded as continuing offences.
