P L D 1963 Dacca 92 (PLP)

"When it is uncertain in which of several local areas an offence was committed, or . . . . . where an offence is a continuing one, and continues to be committed in more local areas than one . . . . . . it may be inquired into or tried by a Court having jurisdiction over any such local areas." It is, however, clear from the expression, "when an offence is a continuing one," that this phrase is not intended to convey the idea of a fresh offence which is committed daily. The phrase simply means, "when the same offence is continued." For example, in the case of dishonestly retaining of stolen property (section 411, Pakistan Penal Code), the same offence is being continued as long as the property is retained and it does not mean that every day a fresh offence is being repeated during the period when the property is so retained. Similarly, the offence of wrongful restraint or wrongful confinement is a continuing offence; but it does not mean that every day, or, for the matter of that, every hour or every minute a fresh and distinct offence is being repeated. The emphasis is upon the same offence and the continuance is that of the same offence and not of a "repetitive offence," that is, a repetition of a fresh offence. Once a person is convicted of having retained a stolen property, knowing it to be stolen, the offence is completed. It will not be correct to say that if a man has retained a stolen property for thirty days he has committed thirty fresh offences, i.e., one each day during which he has retained such property. The idea of continuance is, of necessity, implicit in the very connotation of the offence of retention, but it is the continuance of the same offence for which he can be convicted only once and tried at any one of the local areas in which the offence was continued.

13. In a matter like this the most important question which a Court must ask itself is the query: Is the person being tried for the same offence for which he has been tried and convicted or acquitted before? Or, alternatively, is the person guilty of having committed a fresh offence daily? To answer this question one has to look into the gist of the offence complained of. If we analyse clause 7 of the Order it will be patently clear that the said clause requires that every foreigner, upon entry into Pakistan (or having entered Pakistan) should obtain a permit to cover his period of stay in this country. The said clause further provides that the said foreigner is required to depart from the country upon the expiry of the period mentioned in the permit, if not validly extended. The clause with which we are concerned requires a foreigner to obtain a permit which necessarily means single permit. Obtaining a permit is a mandatory requirement upon his entry into Pakistan (or upon his having entered Pakistan). Such a permit is co‑related to the foreigner's entry and is conditioned upon such entry. The clause further provides that the permit shall state the period of his stay in Pakistan. It does not specifically directly lay any embargo upon his stay in Pakistan; on the contrary, it clearly and specifically requires him to obtain a permit. It is, therefore, perfectly clear that the failure to obtain such a permit is a single act of non‑compliance with the provision of law, which continues as long as the said foreigner fails to obtain such permit. The failure, however, is one act and it does not constitute a fresh breach of the requirement of law every day. It is the same contravention of the law which is being continued, not that a fresh contravention occurs daily This follows from the plain meaning of the language of the clause. It is, therefore, the continuance of the "same offence" within the meaning of section 403 of the Code of Criminal Procedure and nobody can be tried and convicted more than once in respect of the "same offence" unless the statute or the particular provision of the law clearly provides that if so continued, it would amount to a fresh offence which is committed daily if continued from day to day.

14. Mr. Sabita Ranjan Pal, who, at our request, appeared before us amicus curiae, has argued with a good deal of force that whenever a law lays down that a fresh offence is being repeated from day to day, it expressly so provides. He has referred us to section 6 (1) of the Cinematograph Act, 1918, which runs thus: "If the owner or person in charge of a cinematograph uses the same or allows it to be used, or if the owner or occupier of any place permits that place to be used, in contravention of the provisions of this Act or the rules made there under, or of the conditions and restrictions upon, or subject to which, any licence has been granted under this Act, he shall be punishable with fine which may extend to one thousand rupees and, in the case of a continuing offence, with a further fine which may extend to one hundred rupees for each day during which the offence continues, and his licence (if any) shall be liable to be revoked by the licensing authority." Mr. Pal has also referred us to the provisions of subsection (2) of section 488 of the Calcutta Municipal Act, 1923, which reads thus: "Whoever, after having been convicted of any offence referred to in clause (a), (b) or (c) of subsection (1), continues to commit such offence shall be punished, for each day after the first during which he continues so to offend, with fine which may extend to the amount mentioned in this behalf in the fourth column of the said table." He also referred to subsection (5) of section 103, subsection (3) of section 104, subsection (2) of section 108 and subsection (1) of section 122 of the Companies Act in support of his contention, which are as follows: "103 (5). If any company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contravention shall, without prejudice to any other liability, be liable to a fine not exceeding five hundred rupees for every day during which the contravention continues." "104. (3) If default is made in complying with the require ments of this section, every officer of the company who is knowingly a party to the default shall be liable to a fine not exceeding five hundred rupees for every day during which the default continues." "108. (2) If default is made in complying with the require ments of this section, the company, and every officer of the company who is knowingly a party to the default, shall be liable to a fine not exceeding fifty rupees for every day during which the'default continues." "122. (I)‑If any company makes default in filing with the Registrar for registration the particulars‑

(a) of any mortgage or charge created by the company ; or (b) of the payment or satisfaction of a debt in respect of which a mortgage or charge has been registered under section 109 or section 109‑A ; or (c) of the issues of debentures of a series, requiring registra tion with the Registrar under the foregoing provisions of this Act, then, unless the registration has been effected on the application of some other person, the company, and every officer of the company or other person who is knowingly a party to the default, shall on conviction be liable to a fine not exceeding five hundred rupees for every day during which the default continues." The provisions of the various statutes quoted above clearly show that where a continuing offence was sought to be punished more than once, the continuance itself was made an offence by the statutes themselves. We have reached the conclusion that for an offence to be "repetitive", there must be an express provision F to that effect or it must clearly and plainly follow from the specific words used in the statute. An offence is not necessarily repetitive merely because it is a continuing offence.

15. In this connection, it is useful to refer to a decision of the Calcutta High Court in the case of Griffiths v. Tezia Dosadh (I L R 21 Cal. 262). In that case one Tezia Dosadh, a tea garden coolie, entered into a contract, under Act XIII of 1859 on the 16th of May 1893, whereby she undertook to work on a tea estate for a period of 313 days, and she received Rs. 14 on account of the work so to be performed under the contract. On the 18th of May 1893, she refused to carry out the said contract and left the estate. On the 26th of June she was prosecuted by the Manager of the estate for fraudulently and willfully refusing to carry out her contract after having received an advance of Rs. .I4 thereon, and, on the 29th of July 1893, she was sentenced to one month's rigorous imprisonment. On the 28th of August, Tezia Dosadh was released from jail and did not return to the Cossipur tea estate to fulfill her contract. On the 31st of August the Manager of the estate again complained to the Extra Assistant Commissioner that Tezia Dosadh had not returned, and asked that she might again be tried. The Extra Assistant Commissioner dis missed the complaint under section 203 of the Criminal Procedure Code, on the ground that the accused having once been tried and punished for refusal to fulfill her contract, could not again be tried for the same offence. The Manager then moved the Deputy Commissioner on revision under section 435 of the Criminal Procedure Code, and he, holding that the contract was still in force, remitted the case to the said Extra Assistant Commissioner, with instructions to him to call upon Tezia Dosadh to fulfil her contract. The Extra Assistant Commissioner again dismissed the complaint on the 3rd of October 1893. Thereupon the complainant moved the High Court and obtained a Rule to show cause why the order should not be set aside. In the context of the facts stated above, it was argued that a second conviction would be perfectly legal and that the offence was continuing one and that it consisted in a continued breach of a still subsisting contract for service. The judgment of the Division Bench, which consisted of Prinsep, J. and Amir Ali, J., (as he then was), was as follows: "This is a case under Act XIII of 1859, in which the Magistrate has refused to act against a cooly woman under contract 1‑to a tea garden, who has already been committed to prison ''under the Act, but who on expiry of the sentence has again refused to perform her contract. Mr. Henderson on the authority of some English cases Unwin v. Clarke L R I Q B 417 and Cutler v. Turner L R 9 Q B 502, under the English Statute Geo. IV, Chap. 34, section 3 contends that a person under contract is liable for successive breaches of the same contract. These cases in our opinion are not completely in point, owing to the difference between the Statute and the Indian Act. The two cases cited proceed on the terms of the statute. The parts of the Statute upon which the judgments were delivered are not to be found in the Indian Act, and the reasons given for those judgments are consequently not applicable. It is sufficient to state that there is no power given by the Indian Act, as by C; the English Statute, to discharge a person from liability under the contract, so as to show that unless such order be passed, the contract can still be enforced. The object of the Indian Act, moreover, is stated in the preamble to be to punish fraudulent breaches of contract, as well as to enable contractor to obtain a more speedy remedy than by recourse to the Civil Courts, which would ordinarily have jurisdiction, so as to afford him relief. We cannot hold that it is the intention, of the Legislature that a contumacious labourer under contract should be liable to imprisonment for several terms for several breaches so as to end in his imprisonment until the term of his contract has expired." To obtain a clear picture of the case cited above, we would like to quote the relevant provisions of Act XIII of 1859, which run thus: "

1. When any artificer, workman or labourer shall have received from any master or employer resident or carrying on business in any Presidency town or from any person acting on behalf of such master or employer, an advance of money on account of any work which he shall have contracted to perform, or to get performed by any other artificers, workmen or labourers, if such artificer, workman or labourer shall wilfully and without lawful or reasonable excuse neglect or refuse to perform or get performed such work according to the terms of his contract, such master or employer or any such person as aforesaid may complain to a Magistrate of Police, and the Magistrate shall thereupon issue a summons or a warrant, as he shall think proper, for bringing before him such artificer, workman or labourer, and shall hear and determine the case." We respectfully agree with the principles laid down in the aforesaid case (I L V 21 Cal. 262). It would be noticed that, in one sense, it would be correct to say that in the above mentioned case the opposite‑party Tezia Dosadh was guilty of a continued breach of her contract during the subsistence such contract, but it was held that the breach constituted one single offence.

16. We would refer to the two cases which were referred to in the above‑mentioned case. The first case is the case of Unwin v. Clarke. In that case a workman entered into a contract with a master to serve him for a term of two years; he absented himself during the continuance of the contract from his master's service, and under 4 Geo. 4, c. 34 section 3, he was summoned before justices, convicted and committed. After the imprisonment had expired, ,.and while the term still continued, he refused to return to his master's service and was again summoned before justices, when he stated that he considered his contract determined by the commitment ; the justices found that he bona fide believed that ;)c could not be com pelled to return to his employment, and dismissed the summons. The, provisions of section 3 of 4 Geo. 4, c. 34, have been explained by Blackburn, J., as follows: "Now, section 3 provides that if any servant shall contract with any person to serve him for any time, and having entered into the service, shall absent himself before the term of his contract shall be complained, the justices may commit the servant for a period not exceeding three months, and abate a proportion-able part of his wages during the time he is in prison. In deciding the case Blackburn, J., has stated as follows: "The facts are, that the masters refused to raise the res pondent's wages and he then absented himself from his work, and declared that he would not return, but would break his contract; for this offence he was convicted and sent to prison for twenty‑one days. On his liberation from prison he refused to return to his master's service, and only went to their place to get his tools. On these facts the question is, was this refusal of the respondent to return to his master's service, an absent ing himself from his service within the meaning of the statute, for which he was liable to be punished, notwithstanding his first conviction? I think it was. The contract is to serve for two years, and the servant stayed away from his work during a portion of the period he was bound to serve; that is certainly an absenting himself from his employment. The contract, however, having been previously broken in November, and the respondent, after his liberation from prison in December, not having come back to his work, the contention on his behalf is, that the first breach of contract put a complete end to the agreement. I think it clear in civil cases that if there be breach of contract, accompanied with an intention of no proceeding further with it, is at the option of the person with whom the contract is made to elect to rescind; but if there be contract to serve for one year, and an action be brought during the year for a breach of it, damages may be recovered up to the commencement of ‑the action, and after wards a second action may be brought for a continuing breach of contract. "It is argued upon the authority of Pollack, C. B., and Martin, B., in Ex parte Baker (26 L J M C 155), that if a servant absents himself from his master's service, and says at the time that he never means to return, that is an offence to be dealt with once for al: ; and after he has been convicted once, he cannot be again convicted, because, by the first conviction, the contract is put an end to. But I think there is a great force in the argument that it is shown that the contract is not at an end, by reason of the non‑exercise by the justices of the power which they have under the statute to discharge the servant from his contract; and Mr. Quain does not contend that the contract has not been put an end to for all purposes." On the facts of the case before him, Blackburn, J., however decided that the contract of service subsisted as the Justice did not discharge the servant from the said contract. Shee, J., however, did not agree with the observations of Blackburn, J., as quoted above, but concurred in the judgment that was pro nounced by the Queen's Bench, having regard to the authorities in support of the view expressed by Blackburn, J.

17. The second case mentioned in Griffiths' case (I L R 21 Cal. 262) is the case of Cutler v. Turner (L R 9 Q B 502). In that case the appellant, in 1871, agreed to serve the respondents as a fire‑iron forger for five years. On the 1st of April 1873, he was summoned under the Master and Servant Act, 1867 (30 and 31 Vict. C. 141), for absenting himself from the respondents' service, and was, on the 13th of May, ordered to pay 11 8s to them as compensation for the breach of contract, which sum was paid. Not having returned to his employment, the appellant was again summoned and, on the 7th of July, ordered to fulfill his contract and to give security for its fulfillment, and in default to be imprisoned for a term not exceeding three months. The appellant did not comply with the order and underwent three months' imprisonment. On his liberation he continued to absent himself and was again summoned for absenting himself from the respondents service and ordered, on the 18th of November, to pay 11 14s. to them as compensation. Lubh, J., after discussing the provisions of the Act and its scheme, held that the order made on the‑18th of November, was one which could be validly made.

18. It is thus clear from the decisions in the above‑mentioned two English cases, i.e., Unwin v. Clarke (L R 1 Q B 417) and Cutler v. Turner (L R 9 Q B 502), that those decisions were based upon the peculiar provisions of the relevant statutes and also upon the particular facts of each case.

19. In this connection, we may refer to the case of Marshall v. Smith (8 C P 416). In that case bye‑laws were made by the Local Board of Sunderland under section 115 of the Public Health Act, 1848, and section 34 of the Local Government Act, 1858, by one of which (No. 12) all party‑walls, except in houses of one storey, were required, under a penalty of 40s, to be 9 inches, at least in thickness, and by another of which (No. 42) it was provided that, "in case any offence under any of the foregoing bye‑laws shall continue, the person offending shall be liable to a further penalty of not exceeding 40s. for each day during which such offence shall continue after written notice of the offence has been given by the local board to the offender." The appellant having been convicted and, fined for an offence against bye‑law No. 12, in building a party‑wall of 4J inches in thickness instead of 9 inches, was afterwards convicted upon an information charging him under bye‑law 42 with continuing the offence and again fined. It was held that suffering the party wall to remain unaltered was not a "continuing offence" within bye‑law 42, or, if it was, that the bye‑law was unreasonable, the appropriate remedy being the removal of the structure by the board, as authorised by section 34 of the Local Government Act, 1858.

20. We may now refer to a decision of the Madras High Court in the case of In re S. v. Kishta Pillai. This case relates to penalty for failure to pay sales tax as required by section 15 of the Madras General Sales Tax Act (Act IX of 1939) as amended by the Amendment Act XXV of 1947. The petitioner was pro secuted and convicted a second time for contravention of the, requirement of the said Act to pay the assessed sales tax, breach of which was made an offence. It was contended that failure to pay the sales tax was a continuing offence in the sense that it was a continuing contravention of the requirement of law to pay the assessed sales tax. The decision was that of a Single Judge of the Madras High Court, and it runs as follows: "The petitioner here was already once convicted and fined for not paying the assessment fixed for 1946‑

47. I do not think that the lower Court was justified in law or in equity in convicting him over again for not having paid that very assessment in full. The learned Public Prosecutor cannot say why the principle of autrefois acquit should not be applied here and the petitioner acquitted. This is not like a continuing trespass, a fresh offence every day. Though the old section (section 15, Madras General Sales Tax Act of 1939) prescribed an added penalty of Rs. 50 a day, for continued breach, over the maximum fine of Rs. 1,000 for a breach, even that section did not say that a new prosecution can be launched every day and that a fresh fine up to Rs. 1,000 and a penalty of Rs. 50 per day for every day of non‑payment after the due date can be imposed. The new section (as amended by Madras Act XXV of 1947) does not contain that provision at all. So, I set aside the conviction and sentence of the petitioner, acquit him in this case, and direct the fine, if paid, to be refunded to him. The tax will, of course, be collected under the old conviction."

21. It is interesting to note that the argument advanced before us in support of the conviction of the petitioner for contravention of the provisions of clause 7 of the Order rests on a similar footing to that upon which the aforesaid Madras case argued at the Bar. It has been contended before us that non‑compliance with the requirement of the said clause 7 is a continuing contravention of its provisions and that it constitutes a fresh offence every day. It was argued in the Madras Case that the law enjoined the payment of assessed sales tax and that failure to pay such assessed tax was a continuous breach of the obligation imposed by law. In one sense it would be correct to say that it was a continuous breach, nevertheless, it was held that failure to pay the assessed sales tax did not constitute the commission of a fresh offence daily and that it was merely a con tinuance of one and the same offence.

22. One may ask: On what basis can it be said that the offence is being repeated daily? If it is a continuing offence in the sense in which the learned Advocate‑General asks us to hold that it is so, then a fresh offence is being committed every hour, nay, every minute and every second that the petitioner continues to contravene the provisions of clause 7 of the Order. Would it be correct to say that in the course of an hour the petitioner is committing sixty offences or that in the course of a minute he is committing as many offences as there are seconds in a minute? It is true that every second and every minute the petitioner is continuing the same offence, but not a distinct and fresh offence each time, counted in terms of seconds, minutes, hours or days. Again, we may take the cast where an Afghan National, having entered Pakistan, say, on the 1st of January 1960, obtains a permit for his stay in Pakistan on the 1st of February of the same year specifying his period of stay for three months com mencing from the 1st of February. What would happen (in this case which we have supposed) in respect of his stay in Pakistan for the whole of the month of January which is uncovered by the permit which was obtained by him in the aforesaid terms on the 1st of February? Can he be prosecuted for his stay in Pakistan during the period commencing from the 1st of January to the 31st of that month which is uncovered by the permit? In our opinion the only answer that can be given to such a question is that he cannot be prosecuted for having contravened the provisions of clause 7 of the Order. The requirement of law is to obtain a permit upon entry into Pakistan and that he has done. Inas much as clause 7 does not state within what period he must obtain such a permit, he cannot be convicted, if, in fact, he has t obtained the permit as required by the said clause after a period of one month has elapsed between his entry and his obtaining such a permit. It is, therefore, clear that the offence of the petitioner in this case has no direct reference to his stay in Pakistan although it has an indirect connection with it. We have already observed that the gist of the offence consists in not obtaining a permit and failure to do so constitutes one single offence and not multiple offences, which are repeated every moment of his stay in this country without such permit. The offence may be a continuing one, but it is one and the same offence, which is being continued for which the offender can be tried and convicted once only.

23. Our attention has been drawn to the case Emperor v. Karsandas Govindji Ved (A I R 1942 Bom. 326). In that case the accused was once acquitted under the first part of subsection (1) of section 390 of the Bombay City Municipal Act (Act III of 1888). The first part of that subsection provided that no person should newly establish in any premises any factory in which it was intended that steam, water or other mechanical power should be employed, without the previous written permission of the Commissioner, and the second part provided: "Nor shall any person work, or allow to be worked, any such factory without such permission." The accused was tried by a Bench of Honorary Magistrates on a charge of having established such a factory without the previous per mission of the Commissioner and was acquitted of such a charge. He was subsequently charged for working the said factory in violation of the second provision of subsection (1) of section

390. Beaumont, C. J., in delivering the judgment of the Division Bench in that case, has observed as follows "Then the other point on which the learned Magistrates held that the accused was entitled to acquittal was that his previous acquittal in 1939 constituted a bar to his conviction in 1941 under section 403, Criminal P. C. But that really raises the same point. It is obvious that if an offence is committed on every day on which the factory is working without permission, the acquittal of so working the factory in July 1939, cannot operate as a bar to a charge against the accused of so working the factory in January 1941. In my opinion, none of the grounds set up on behalf of the accused are sound, and I think, therefore, that we must convict him." It will, however, be seen that the decision in the aforesaid Bombay case rests on the provisions of the Bombay City Municipal Act which lays an embargo on the working of the factory, except upon obtaining a previous permit from the Com missioner. The working of the factory is a matter of daily operation and it was held that working the factory in breach of the aforesaid provision of law constituted a daily offence having regard to the special provisions of the Act. With regard to similar provisions of the Calcutta Municipal Act, there are also provisions for daily punishment for continued contravention of the requirement of law. The provisions of clause 7 of the Order are not similar and, therefore, the decision in that case cannot apply to the case before us.

24. The proper test in such a case is, as has been observed in the judgment of a Special Bench of the Calcutta High Court in the case of Jitendra Nath v. Emperor (A I R 1937 Cal. 99). The observations are as follows: "No useful purpose can be served by discussion, more or less academicals, of the decisions of the different High Courts in this country bearing upon the provisions contained in section 403, Criminal P. C., in which the conflict of opinions expressed from time to time is more apparent than real. The question as to whether a particular trial is barred by reason of previous prosecution ending in conviction or acquittal is a question to be determined on the facts and circumstances of a particular case; one of the tests the Commissioners of the Tribunal in the case before us have observed in their judgment is whether facts are the same or not, but the true test as has been said in cases decided by this Court is not so much whether the facts are the same in both trials as whether the j acquittal or conviction from the first charge necessarily involve an acquittal or conviction in the second charge : See 48 Cal. 7 (Ram Sabay Ram v. Emperor)." In this context we are constrained to observe that the conviction of the petitioner on the previous charges necessarily involves his conviction on the third charge which is before us.

25. We need not discuss a decision of a Single Bench of this Court in the case of Amalendu Baul v. The State (Criminal Revision Case No. 740 of 1960, decided on the 20th of February 1961). In that case the petitioner was convicted under section 3(6)/4 of the Pakistan (Control of Entry) Act, 1952. The view expressed in that case is that a person who offends against the provisions of the said section 3 (6) of that Act is guilty of a continuing offence and may be punished more than once. Section 3(6) of the said Act runs as follows: "No Indian citizen having entered any part of Pakistan and being in possession of a valid passport duly visaed for Pakistan shall remain therein after the expiry of the period of stay authorised in the visa unless it is extended or renewed by an authority to be specified in the rules made under this Act." Without expressing our opinion on the views expressed therein, it is sufficient for our purpose to say that the provisions of the aforesaid section 3 (6) of the Pakistan (Control of Entry) Act, 1952, are totally different from those of clause 7 of the Foreigners Order, 1951.

26. We have, therefore, come to the conclusion that an offence under the first part of clause 7 of the Order, namely, failure to obtain a permit as required by it, constitutes one single offence and not a repetitive offence which is committed afresh' every day as long as the foreigner fails to obtain such a permit. It is, in a sense, a continuing offence inasmuch as the offence continues as long as the foreigner fails and neglects to take a permit as required by law, but it is the identical offence which continues. No fresh offence is committed daily. There is nothing in the language of clause 7 of the Order or of section 14 of the Act which would indicate that a fresh offence is being committed every day as long as the permit is not obtained. The trial of the petitioner in this case is, in our opinion, clearly barred by the provisions of section 403 of the Code of Criminal Procedure, the petitioner having been already twice convicted for the same offence.

27. Under the various provisions of the Foreigners Act, the Passport Act as well as of the Foreigners Order the authorities could effectively deal with a situation which they had to face by taking an appropriate measure in that behalf. But the method of periodically sending the petitioner to jail is not only an in effective and oppressive measure, but also not warranted by the provisions of law. The result, therefore, is that we make the Rule absolute and set aside the conviction of the petitioner as well as the sentence imposed upon him in this case. His bail bond is discharged. SATTAR, J.‑

I agree. SALAHUDDIN, J.‑

I agree. S. B./A. H. Rule made absolute.