N Criminal Appeal Nos
97 98 99 100  101 of 1991
From the Judgment and Order dated 2121989 of the Karnataka High Court in Criminal R P No 458 459 460 461 and 462 of 1989
AS Bobde Attorney General Vinod Bobde and section Sukumaran for the Appellant
G Ramaswamy KN Nobin Singh and Ms Lalitha Kaushik for the Respondents
MVeerappa for the State of Karnataka
The Judgment of the Court was delivered by KN SAIKIA J
Special leaves granted
399 These five appeals are from as many similar orders of the High Court of Karnataka at Bangalore dismissing the appellant company s criminal revision petitions impugning the respective orders passed by the Judicial Magistrate First Class Gokak holding that the appellants  complaints against the respondents alleging offence under section 630lb of the Companies Act by not vacating the Company s quarters as required by it even more than six months after retirement of the respondents were barred by limitation and the same could not be taken into consideration
The first respondent in each of these criminal appeals was appointed on 181942 1161945 24111939 151939 and 2311937 respectively
in the service of the appellant company and they retired on 1431984 1101983 1221984 4101983 and 2711981 respectively from the appellant company s service whereafter each of them was required to vacate his company s quarter
Each having declined to vacate the company s quarter even more than six months after retirement despite legal notice the appellant company filed a private criminal complaint under section 630lb of the and s406 IPC against each of them before the Judicial Magistrate First Class Gokak and in each case after inquiry framed charges for offences under section 406 IPC and section 630lb of the 
The learned Judicial Magistrate after prosecution had examined its witnesses recorded the statements of all the accused under section 313 of the Cr
PC and despite finding that the accused in each case was allotted a quarter by the company for his use and occupation and each had no authority to retain possession of the same after he retired and that the cause of action in each case arose when the accused failed to deliver possession of the quarter to the company held that the documents produced by the company did not disclose anything regarding the retirement of the accused from the service but at the same time he recorded that during the course of evidence PW 1 had deposed that each of the accused retired from service and immediately after the retirement failed to redeliver possession of the company s quarter which attracted section 630lb of the and which was punishable only with fine and the complaint therefore ought to have been filed within six months from the date of retirement of the accused and as the complaint was filed only during the year 1985 it was clearly barred by limitation wherefore the complaint could not be taken into consideration and consequently the accused was to be acquitted
The Company s revision petition therefrom was dismissed by the High Court holding that the view taken by the trial Magistrate was plausible and reasonable as the complaint was filed in each case 400 beyond six months from the date of the alleged offence and that the question of limitation was concluded by a decision of the same High Court in WMI Cranes Ltd vs GG Advani  Anr 19841 Kar
Law Cronicle 462 wherein it was held that the offence under section 30 1 of the was not a continuing offence and the decisions of this Court in Bhagirath Kanoria and Ors
vs State of Madhya Pradesh with Bahadur Singh vs Provident Fund Inspector  Ors
and Raja Bahadur Singh vs Provident Fund Inspector and Ors AIR 1984 SC 1688 would not be of any assistance to the petitioner
Mr AS Bobde the learned counsel appearing for the appellant company submits that the offence under section 6301b of the is a continuing offence and the learned courts below erred in holding to the contrary and dismissing the company s complaints on the ground of limitation
Mrs Lalitha Kaushik the learned counsel for each of the first respondent submits that when the first respondent upon his retirement failed to vacate and deliver possession of the company s quarter to the company the offence must be taken to have been complete and thereafter right could accrue to the first respondent by adverse possession and that if this state of affairs continued till completion of the period of limitation the company s right would be extinguished
The trial court as well as the High Court according to counsel rightly held that the offence was not a continuing one
The only question to be decided in these appeals therefore is whether the offence under section 630lb of the is a continuing offence for the purpose of limitation
What then is a continuing offence According to the Blacks  Law Dictionary Fifth Edition Special Deluxe Continuing means enduring not terminated by a single act or fact subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences
 Continuing offence means type of crime which is committed over a span of time As to period of statute of limitation in a continuing offence the last act of the offence controls for commencement of the period A continuing offence such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought purpose or action which may be deemed a single impulse So also a Continuous Crime  means one consisting 401 of a continuous series of acts which endures after the period of consummation as the offence of carrying concealed weapons
In the case of instantaneous crimes the statute of limitation begins to run with the consummation while in the case of continuous crimes it only begins with the cessation of the criminal conduct or act
 The corresponding concept of continuity of a civil wrong is to be found in the Law of Torts
Trespass to land in the English Law of Torts trespass quare clausum fregit consists in the act of 1 entering upon land in the possession of the plaintiff or 2 remaining upon such land or 3 placing or projecting any object upon it in each case without lawful Justification
Trespass by remaining on land as we read in Salmond and Heuston on the Law of Torts 19th Edn page 50 Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased
To refuse or omit to leave the plaintiff s land or vehicle is as much a trespass as to enter originally without right
Thus any person who is present by the leave and licence of the occupier may as a general rule when the licence has been properly terminated be sued or ejected as a trespasser if after request and after the lapse of a reasonable time he fails to leave the premises
 Trespass in Law of Torts may be a continuing one
The authors write That trespass by way of personal entry is a continuing injury lasting as long as the personal presence of the wrongdoer and giving rise to actions de die in diem so long as it lasts is sufficiently obvious
It is well settled however that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiff s land
Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing successive actions will lie from day to day until it is so removed and in each action damages unless awarded in lieu of an injunction are assessed only up to the date of the action
Whether this doctrine is either logical or convenient may be a question but it has been repeatedly decided to be the law
 Again if the entry was lawful but is subsequently abused and continued after the permission is determined the trespass may be ab initio
In 1610 six carpenters entered the Queen s Head Inn Cripplegate and consumed a quart of wine 7d and some bread 1d for which they refused to pay
The question for the court was whether 402 their non payment made the entry tortious so as to enable them to be sued in trespass quare clausum fregit
The court held that When entry authority or licence is given to any one by the law and he doth abuse it he shall be a trespasser ab initio but that the defendants were not liable as their non payment did not constitute a trespass
The rule is that the authority having been abused by doing a wrongful act under cover of it is cancelled retrospectively so that the exercise of it becomes actionable as a trespass
In Halsbury s Laws of England 4th Edn
45 para 1389 it is said If a person enters on the land of another under an authority given him by law and while there abuses the authority by an act which amounts to a trespass he becomes a trespasser ab initio and may be sued as if his original entry were unlawful
Instances of any entry under the authority of the law are the entry of a customer into a common inn of a reversioner to see if waste has been done or of a commoner to see his cattle
To make a person a trespasser ab initio there must be a wrongful act committed a mere nonfeasance is not enough Against the above background we may now examine the relevant provision of law keeping in mind that Some of the Torts have counterparts in Criminal law in India
Section 441 of the Indian Penal Code defines Criminal trespass as follows Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate insult or annoy any person in possession of such property or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate insult or annoy any such person or with intent to commit an offence is said to commit criminal trespass 
 House trespass is punishable under section 448 of the Indian Penal Code
It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property 403 with the object Of intimidatinginsulting or annoying the person in possession of the property would be criminal trespass
The offence would be continuing so long as the trespass is not lifted or vacated and intimidation insult or annoyance of the person legally in possession of the property is not stopped
The authors of the Code had the following words to say We have given the name of trespass to every usurpationhowever slight of dominion over property
We do not propose to make trespass as such an offence except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed or for the purpose of causing annoyance to such a person
Even then we propose to visit it with a light punishment unless it be attended with aggravating circumstances
These aggravating circumstances are of two sorts
Criminal trespass may be aggravated by the way in which it is committed
It may also be aggravated by the end for which it is committed
 Section 630 of the reads as under Penalty for wrongful withholding of property
1 If any officer or employee of a company a wrongfully obtains possession of any property of a company or b having any such property in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act he shall on the complaint of the company or any creditor or contributory thereof be punishable with fine which may extend to one thousand rupees
2 The Court trying the offence may also order such officer or employee to deliver up or refund within a time to be fixed by the Court any such property wrongfully 404 obtained or wrongfully withheld or knowingly misappliedor in default to suffer imprisonment for a term which may extend to two year
 Thus both wrongfully obtaining and wrongfully withholding have been made offence punishable under sub sec
Under sub sec
2 knowingly misapplication has also been envisaged
The offence continues until the officer or employee delivers up or refunds any such property if ordered by the court to do so within a time fixed by the Court and in default to suffer the prescribed imprisonment
The idea of a continuing offence is implied in sub section 2
Section 468 of the Criminal Procedure Code says Bar to taking cognizance after lapse of the period of limitation 1 Except as otherwise provided elsewhere in this Code no Court shall take cognizance of an offence of the category specified in sub section 2 after the expiry of the period of limitation
2 The period of limitation shall be a six months if the offence is punishable with fine only b one year if the offence is punishable with imprisonment for a term not exceeding one year c three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years
3 For the purposes of this section the period of limitation in relation to offences which may be tried together shall be determined with reference to the offence which is punishable with the more severe punishment or as the case may be the most severe punishment
 The parties have not disputed that this case attracted section 4681 and 2a
Regarding the fact of the first respondent having retired from service though the trial Magistrate observed that the document did not specifically state that the first respondent retired when after 405 referring to oral evidence the cause of action under section 630lb was held to have arisen on the first respondent s failure to vacate and deliver possession of the company s quarter and that the period of limitation ran therefrom tantamounted to finding that the first respondent did retire
Officer or employee in section 630 of the includes both present and past officers and employees
In Baldev Krishna Sahi vs Shipping Corporation of India Ltd and Anr 1987 4 SCC 361 at paragraph 8 of the report this Court said Section 630 of the which makes the wrongful withholding of any property of a company by an officer or employee of the company a penal offence is typical of the economy of language which is characteristic of the draughtsman of the Act
The section is in two parts
Sub section 1 by clauses a and b creates two distinct and separate offences
First of these is the one contemplated by clause a namely where an officer or employee of a company wrongfully obtains possession of any property of the company during the course of his employment to which he is not entitled
Normally it is only the present officers and employees who can secure possession of any property of a company
It is also possible for such an officer or employee after termination of his employment to wrongfully take away possession of any such property
This is the function of clause a and although it primarily refers to the existing officers and employees it may also take in roast officers and employees
In contrast clause b contemplates a case where an officer or employee of a company having any property of a company in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act
It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment
That appears to be one of the functions of clause b
It would be noticed that clause b also makes it an offence if any officer or employee of a company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act
That would primarily 406 apply to the present officers and employees and may also include past officers and employees
There is therefore no warrant to give a restrictive meaning to the term officer or employee  appearing in sub section  1 of section 630 of the Act
It is quite evident that clauses a and b are separated by the word or  and therefore are clearly disjunctive This Court also observed at paragraph 7 of the report that the beneficent provision contained in section 630 no doubt penal has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company a where an officer or employee of a company wrongfully obtains possession of property of the company or b where having been placed in possession of any such property during the course of his employment wrongfully withholds possession of it after the termination of his employment
It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy
It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy
As was reiterated in Amrit Lal Chum vs Devoprasad Dutta
Roy and Anr
 reported in  that section 630 of the plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment wrongfully retains or occupies the same after the termination of his employment
It is the wrongful withholding of such property meaning the property of the company after the termination of the employment which is an offence under section 6301 of the Act
 What then is the nature of this offence
The question then is whether it is a continuing offence
According to Black s Law Dictionary Revised Fourth Edition continuing offence means a transaction or a series of acts set on foot by a single impulse and operated by an unintermittent force no matter how long a time it may occupy
In State of Bihar vs Deokaran Nenshi  the question was whether the failure to furnish returns on the part of the owner of a stone quarry under regulation 3 of the Indian Metalliferrous Mines Regulations 1926 even after warning from the Chief Inspector was a continuing offences Section 79 of the which provided that no Court shall take cognizance of an offence under the Act unless a complaint was made within six months from the date of the offence 407 and the explanation to the section provided that if the offence in question was a continuing offence the period of limitation shall be computed wherefore to every part of the time during which the said offence continued Shelat J for the court observed 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 out of a 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
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 therefore constitutes a fresh offence every time or occasion on which it continues
In the case of a continuing offence there is thus the ingredient 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 Their Lordships referred to English cases Best vs Butler and Fitz gibbon  Verney vs Mark Fletcher and Sons Ltd 1909 1 KB 444 Rex vs Yalore 1908 2 KB 237 and The London County Council vs Worley In Best vs Butler and Fitzgibbon supra in England the Trade Union Act 1871 by section 12 provided that if any officer member or other person being or representing himself to be a member of a trade union by false representation or 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 continuing offence presumably because every day that the moneys were wilfully withheld an offence within the meaning of section 12 was committed
In Verney s case supra Section 101 of the Factory and Workshop Act 1901 inter alia provided that every fly wheel directly connected with steam water or other mechanical power must be securely fenced
Its sub section 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
Section 135 provided penalty for an occupier of a factory 408 or workshop if he failed to keep the factory or workshop in conformity with the Act
Section 146 provided that information for he offence under section 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 contention 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 information however stated that the fly wheel was unfenced on July 5 1908 and that was the offence charged
It was held that the breach of section 10 was a continuing breach on July 10 1908 and therefore the information was in time
The offence under section 135 read with section 10 consisted in failing to keep the factory in conformity with the Act
Every day that the flywheel remained unfenced the factory was kept not in conformity with the Act and therefore the failure continued to be an offence
Hence the offence defined in section 10 was a continuing offence
In London County Council supra section 85 of the Metropolis Management Amendment Act 1852 prohibited the erection of a building on the side of a new street of less than fifty feet in width which shall exceed in height his 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 section 85 to have laid down two offences 1 building to a prohibited height and 2 continuing such a structure already built after receiving a notice from the County Council
The latter offence 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
State of Bihar vs Deokaran Nenshi supra was explained by this Court in Bhagirath Kanoria  Ors
vs State of Madhya Pradesh  Ors
  Therein the Provident Fund Inspector filed complaints against the Directors the Factory Manager and the respondent company charging them with non payment of employer s contribution under the Employees  Provident Fund and Family Pension Fund Act 19 of 1952 from February 1970 to June 1971
At the trial the accused contended that since the limitation prescribed by section 468 of the Code of Criminal Procedure 1973 had expired before the filing of the complaints the Court had no jurisdiction to take cognizance of the complaints
The Trial Court having held that the offences of which the accused were charged were continuing offences and therefore no question of limitation could arise and that order having been upheld 409 by the High Court in revision the Directors in appeal to this Court contended that the offence of non payment of the employer s contribution could be committed once and for all on the expiry of 15 days after the close of every month and therefore prosecution for the offence should have been launched within the period of limitation provided in section 468 of the Code
Rejecting the contention it was held by this Court that the offence of which the appellants were charged namely non payment of the employer s contribution to the Provident Fund before the due date was a continuing offence  and therefore the period of limitation prescribed by section 468 of the Code could not have any application and it would be governed by section 472 of the Code according to which a fresh period of limitation began to run at every moment of the time during which the offence continued
It was accordingly held that each day the accused failed to comply with the obligation to pay their contribution to the fund they committed fresh offence
Section 472 of the Code of Criminal Procedure deals with continuing offence and says In the case of a continuing offence a fresh period of limitation shall begin to run at every moment of the time during which the offence continues
 The concept of continuing offence does not wipe out the original guilt but it keeps the contravention alive day by day
It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions in cases of this nature should give due weight and consideration to the provisions of section 473 of the Code which is in the nature of an overriding provision and according to which notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if inter alia it is satisfied that it is necessary to do so in the interest of justice
The expression continuing offence  has not been defined in the Code
The question whether a particular offence is a continuing offence  or not must therefore necessarily depend upon the language of the statute which creates that offence the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence
Applying the law enunciated above to the provisions of Section 630 of the  we are of the view that the offence under 410 this section is not such as can be said to have consummated once for all
Wrongful withholding or wrongfully obtaining possession and wrongful application of the company s property that is for purposes other than those expressed or directed in the articles of the company and authorised by the  cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offender s possession is delivered up or refunded
It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged
The offence consists of a course of conduct arising from a singleness of thought purpose of refusal to deliver up or refund which may be deemed a single impulse
Considered from another angle it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property
It is not an instantaneous offence and limitation begins with the cessation of the criminal act ie with the delivering up or refund of the property It will be a recurring or continuing offence until the wrongful possession wrongful withholding or wrongful application is vacated or put an end to
The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly mis applied is delivered up or refunded to the company
For failure to do so sub section 2 prescribes the punishment
This in our view is sufficient ground for holding that the offence under section 630 of the is not one time but a continuing offence and the period of limitation must be computed accordingly and when so done the instant complaints could not be said to have been barred by limitation
The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the company s quarter to the company the offence must be taken to have been complete has therefore to be rejected
These appeals accordingly succeed
The impugned orders are set aside and the cases are remanded to the Trial Court for disposal in accordance with law in light of the observations made herein above
VPR Appeals allowed


Summary:
In a writ petition decided by the High Court of Punjab and Haryana it allowed the ad hoc appointments made by the Government of Punjab to the posts of Patwaris to continue for six months from the date of the judgment and directed the Government to make regular appointment of Patwaris within that period
Since the Service Selection Board Punjab was not constituted at the relevant time the Govern ment of Punjab by a Notification dated 26886 amended Rule 2a of the Punjab Revenue Patwari Class III Services Rules 1963 and empowered the State Government to authorise other authorities to make recruitment to the service
According ly the Government constituted a selection committee for each district
The District Committee of Patiala consisted of the Dy
Commissioner Patiala as Chairman and District Revenue Officer the District Sainik Welfare Officer and the District Social Welfare Officer Scheduled Caste as its Members
The pending names of the candidates before the Service Selection Board were sent to the Committee for selection
The District Collector also invited applications from children affected by the riots at Delhi terrorists affected families in Punjab and the like special categories
By the date of the interview the District Revenue Officer was transferred and his successor participated in the Selec tion
The selections were challenged by unsuccessful candi dates in several writ petitions which were dismissed by the High Court
Aggrieved the petitioners filed appeals before this Court by special leave
153 It was contended on behalf of the appellants that the selection was bad because the Committee was not properly constituted the District Collector was not competent to invite applications afresh written test was abandoned and only oral interviews were conducted no proper opportunity was given to appellants in the interview inasmuch as 821 candidates were interviewed in 15 hours
It was also prayed that since the appellants had meanwhile become overage the Government should be directed to relax their age and to give appointments to them
Dismissing the appeals this Courts HELD 11 On the transfer of the member having been nominated by virtue of his office the incumbent in office was entitled to participate in the selection of the candi dates
The committee constituted was properly composed of the representatives enumerated therein and the selection of the candidates therefore was legal and valid
pp 155 F G 156 A 12 Although the representation of the Scheduled Castes need be by an officer belonging to Scheduled Caste and the District Social Welfare Officer Scheduled Caste as re quired should be an officer belonging to the members of the Scheduled Castes yet it is not uncommon that the Social Welfare Officer may be an officer other than one from the Scheduled Castes
p 155 GH 2
If applications from candidates are invited and they are called for interview though under a mistaken compliance on wrong impression the selection of the candidates so applying does not become illegal
p 156 D 3
Normally it may be desirable to conduct written test and in particular hand writing that which is vital for a Patwari whose primary duty is to record clearly entries in revenue records followed by oral interview
The rules did not mandate to have both
Options were given either to conduct written test or viva voce or both and the committee adopted viva voce as a method to select the candidates which could not be said to be illegal
p157 D E 4
On an average three minutes were spent for each candidate for selection
Keeping in view the facts that educational qualifications were apparent from the record the candidates normally hailing from rural background had presumptively good knowledge of rural economy and 154 culture under the circumstances much time need not be spent on each candidate for selection except asking some questions on general knowledge and aptitude for work as Patwari etc
p 157 B D Ashok Yadav vs State of Haryana 1985 Suppl
1 SCR 657 held inapplicable
The appellants had taken the chance for selection and they were not selected on the basis of comparative merits
Merely because they were carrying on the litigation there could not be any justification to give direction to the Government to consider their cases by relaxing the age qualification for appointment as Patwari
157 F G