N Criminal Appeal Nos
407 to 418 of 1979
Appeals by Special leave from the judgment and order dated the 6th July 1977 and 12th May 1978 of the Madhya Pradesh High Court in Crl
Case Nos 857 851 853 858 852 850 of 1977 and 1394 1391 1395 1392 1393  1387 of 1976
WITH Criminal Appeal No 828 of 1981 Appeal by Special leave from the Judgment and order dated the 1st May 1981 of the Madhya Pradesh High Court in Crl
Revision No 187 of 1977 AND Criminal Appeal Nos 315 317 of 1982 Appeal by Special Leave from the judgment and order dated the 7th September 1977 of the Madhya Pradesh High Court in Crl
Revision No 186 185  184 of 1977 G L Sanghi
Vinod Bobde Mrs A K Verma O C Mathur and D N Misra for the Appellant in Crl
407 1879
Gopal Subramaniam and DP Mohanty for Respondents Nos 1  2 in Crl
407 18 of 1979
Mrs Urmila Sirur section N Kohil and MP Jha for the Intervener in Crl
A Nos 407 1879
M K Ramamurthy and Miss A Vaiji for AC in Crl
407 1879
section Govind Swaminathan and SK Gambhir for the appellants Crl
A 82881 and Crl
A Nos 82881  315 1782
629 N C Taluqdar and Miss A Subhashini for the Respondents in Crl
A Nos
82881  315 31782
The Judgment of the Court was delivered by CHANDRACHUD CJ
These appeals raise a question of general public importance as to whether failure to pay the employers  contribution to the Provident Fund is continuing offence
If it is no question of limitation can arise
On the other hand if it is not a continuing offence the complaint for non payment of the contribution has to be filed within the stated period
The facts of these appeals vary from case to case but such variation is inconsequential for our purpose
We will therefore state the facts of a representative group of these cases which comprises Criminal Appeals Nos
407 418 of 1979
On August 22 1975 the Provident Fund Inspector Indore Madhya Pradesh filed six complaints against the appellants and respondent 2 charging them with non payment of employers  contribution under the Employees Provident Fund and Family Pension Fund Act 19 of 1952 referred to herein as the Act
Respondent 2 is a Company called Ms Burhanpur Tapti Mills Limited of which appellants 1 to 3 were Directors and appellant 4 the Factory Manager
Under section 17 of the Act the Company was granted exemption from the operation of the Employees Provident Fund Scheme 1952 which is framed under the Act
That exemption was granted on the condition that the Company will transfer monthly collections of the Provident Fund of workers inclusive of the employers  contribution to the Board of Trustees of the Fund within 15 days of the close of each month
The allegation against the accused about which there is no factual dispute is that they did not pay the employers  contribution to the fund from February 1970 to June 1971
At the commencement of the trial the accused filed applications contending that since the limitation prescribed by section 468 of the Code of Criminal Procedure 1973 referred to herein as the Code had expired before the filing of the complaints the Court had no jurisdiction to take cognizance of the complaints
Those applications were rejected by the learned Judicial Magistrate by an order dated November 29 1976 on the ground that the offences of 630 which the accused were charged are continuing offences and therefore no question of limitation could arise
The accused filed revision applications in the High Court of Madhya Pradesh against the order passed by the trial court
By a judgment dated July 6 1977 a learned single Judge of the High Court upheld the order of the trial court and dismissed the revision petitions
The Directors of the company who along with the company were arraigned as the accused have filed these appeals by special leave against the judgment of the High Court
By a Notification dated April 22 1971 the Company was declared as a Relief Undertaking under the Industries Development and Regulation Act 1951
As a result of that notification the administration and control of the Company are vested in an administrator appointed by the Central Government under that Act
Later the Company was notified as a Sick Textile Undertaking under the First Schedule to the Sick Textile Undertakings Nationalisation Act 1974 which came into force on April 1 1974
The complaints for non payment of the employer s contribution to the Provident Fund were filed against the accused under section 14 2A of the Act which reads thus Section 14
Penalties
X X X X 2 A
Whoever contravenes or makes default in complying with any provision of this Act or of any condition subject to which exemption was granted under Section 17 shall if no other penalty is elsewhere provided by or under this Act for such contravention or non compliance be punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both
 The allegation against the accused is that by not paying their contribution to the Provident Fund they committed default in complying with the condition subject to which exemption was granted to them under section 17 of the Act from complying with the provisions of the Act
Stated briefly section 17 confers upon the appropriate Government the power to exempt any establishment from the operation of all or any of the provisions of the Act if 631 such establishment has its own scheme of Provident Fund of which the rules are not less favourable than the rules of the scheme framed under the Act
The Company in the instant case was granted exemption under section 17 on the condition that it shall pay the employer s contribution within fifteen days of the close of each month
This condition is the same as the one contained in paragraph 38 1 of the Employees  Provident Funds Scheme 1952
Paragraph 38 1 reads as follows in so far as is relevant 38
Mode of payment of contribution 1 The employer shall before paying the member his wages in respect of any period or part of period for which contributions are payable deduct the employee s contribution from his wages which together with his own contribution he shall within fifteen days of the close of every month pay to the Fund
 The question as to whether the offence of non payment of the employer s contribution of the Provident Fund is a continuing offence arises because of the provisions contained in Chapter XXXVI of the Code which is entitled Limitation for taking cognizance of certain offences  Sections 468 472 and 473 which occur in that Chapter and which are relevant for our purpose read as follows 468
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
 632 472
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 473
Notwithstanding anything contained in the foregoing provisions of this Chapter any Court may take cognizance of an offence after the expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice
 It is contended by Shri Bobde who appears on behalf of the appellants that the offence of non payment of the employer s contribution can be committed once and for all on the expiry of fifteen days after the close of every month and therefore prosecution for that offence must be launched within the period of limitation which is mentioned in section 468 of the Code
It is common ground that if the offence is non continuing the period of limitation for filing the complaint will be one year as provided in clause b of sub section 2 of section 468 since the offence in the instant case is punishable with imprisonment which may extend to three months or with fine
It is impossible to accept Shri Bobde s contention
The expression continuing offence  is not defined in the Code but that is because expressions which do not have a fixed connotation or a static import are difficult to define
How difficult it is to put the concept of a continuing offence in a strait jacket is illustrated by the decision of this Court in State of Bihar vs Deokaran Nenshi
In that case respondents who were owners of a stone quarry in Bombay were required to forward certain annual returns in respect of the preceding year on or before January 21 in each year
Failure to forward the returns as required is punishable with fine under section 66 of the 
The respondents having failed to furnish the returns by the due date which was January 21 1960 a complaint was filed against them in a Court at Dhanbad on April 12 1961
One of the contentions of the respondents was that the complaint was barred by limitation under section 79 of the which provided that no Court shall take cognizance of an offence under that Act unless the complaint was filed within six months of the date of the offence
The Explanation to section 79 633 provided that if the offence in question was a continuing offence the period of limitation shall be computed with reference to every part of the time during which the said offence continued
It was held by this Court that the infringement which occurred on January 21 of the relevant year was complete when the owner failed to furnish the annual returns on that date
Since the Regulation did not lay down that the owner would be guilty of an offence if he continued to work the mine without furnishing the returns the offence was non continuing and therefore the complaint was time barred
While discussing the question as to when an offence could be said to be a continuing offence the Court made the following observations 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  p 1006 This passage shows that apart from saying that a continuing offence is one which continues and a non continuing offence is one which is committed once and for all the Court found it difficult to explain as to when an offence can be described as a continuing offence
Seeing that difficulty the Court observed that a few illustrative cases would help to bring out the distinction between a continuing offence and a non continuing offence
The illustrative cases referred to by the Court are three from England two from Bombay and one from Bihar
634 In Best vs Butlar and Fitzgibbon the English Trade Union Act 1871 made it penal for an officer or a member of a Trade Union to wilfully withhold any money books etc
of the Trade Union
It was held in that case that the offence of withholding the money was a continuing offence the basis of the decision evidently being that every day that the moneys were wilfully withheld the offence was committed
In Verney vs Mark
Fletcher  Sons Ltd section 10 1 of the Factory and Workshop Act 1901 provided that every fly wheel directly connected with steam water or other mechanical power must be securely fenced
Section 135 provided the penalty for non compliance with section 10 1 while section 146 provided that information of the offence shall be laid within three months after the date on which the offence comes to the knowledge of the Inspector
It was held that the breach of section 10 1 was a continuing breach and therefore the information was in time
Every day that the fly wheel remained unfenced the factory was run otherwise than in conformity with the Act of 1901 and therefore the offence defined in section 10 was a continuing offence
The third English case referred to is The London County Council vs Worley in which section 85 of the Metropolis Management Amendment Act 1852 prohibited the erection of a building on the side of a new street in certain circumstances without the consent of the London County Council
The Court construed section 85 as creating two offences building to a prohibited height and continuing such a structure already built after receiving a notice from the County Council
The Court held that the latter offence was a continuing offence
In Emperor vs Karandas section 390 1 of the Bombay City Municipal Act 1888 provided that no person shall newly establish in any premises any factory of a certain description without the previous permission of the Commissioner nor shall any person work or allow to be worked any such factory without such permission
It was held by the High Court that establishing a new factory was an offence committed once and for all but working it without permission was a continuing offence
635 In The State of Bombay vs Bhiwandiwala
it was held that the offence of using the premises as a factory without a licence is a continuing offence
In State of Bihar vs JP Singh the High Court of Patna held that conducting a restaurant without having it registered and without maintaining proper registers were continuing offences
The decision of this Court in State of Bihar vs Deokaran Nenshi to the effect that failure to furnish returns before the due date is not a continuing offence must be confined to cases of failure to furnish returns
It cannot be extended to cases like those before us in which the contravention is not of a procedural or formal nature and goes against the very grain of the statute under consideration
What is of closer resemblance to the cases before us are the three English cases the two Bombay cases and the Patna case referred to by this Court as illustrative of cases in which the offences were held to be of a continuing nature
We adopt the reasoning in those cases as applicable to the circumstances of the instant prosecutions
The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence the nature of the offence and above all the purpose which is intended to be achieved by constituting the particular act as an offence
Turning to the matters before us the offence of which the appellants are charged is the failure to pay the employer s contribution before the due date
Considering the object and purpose of this provision which is to ensure the welfare of workers we find it impossible to hold that the offence is not of a continuing nature
The appellant 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
It is putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who has not paid 636 contribution or the contribution of the employes to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation
Such offences must be regarded as continuing offences to which the law of limitation cannot apply
our attention has been drawn to a judgment of the Bombay High Court in Criminal Revision Applications 337 and 338 of 1976 which were decided by a learned single Judge on November 71977
It was held in that Judgment that the failure to pay the employer s share of contribution to the Provident Fund is not a continuing offence
For reasons which we have mentioned above we dissent from that judgment
With respect we are unable to appreciate the reasoning of that judgment that if the failure to pay the employer s contribution is regarded as a continuing offence it would be open to the employer to pay the contribution even after the due date has expired in order to escape punishment
The concept of continuing offence does not wipe out the original guilt
It keeps the contravention alive day by day
For these reasons we are of the opinion that the offence of which the appellants are charged namely non payment of the employer s contribution to the Provident Fund before the due date is a continuing offence and therefore the period of limitation prescribed by section 468 of Code cannot have any application
The offence which is alleged against the appellants will be governed by section 472 of the Code according to which a fresh period of limitation begins to run at every moment of the time during which the offence continues
Before we close we consider it necessary to draw attention to the provision of section 473 of the Code which we have extracted above
That section is in the nature of an overriding provision according to which notwithstanding anything contained in the provisions of Chapter XXXVI of the Code any Court may take cognizance of an offence after the expiry of the period of limitation if inter alia it is satisfied that it is necessary to do so in the interest of justice
The hair splitting argument as to whether the offence alleged against the appellants is of a continuing or non continuing nature could have averted by holding that considering the object and purpose of the Act the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation if any such period is applicable because the interest of justice so requires
We believe that in case of this nature Courts 637 which are confronted with provisions which lay down a rule of limitation governing prosecutions will give due weight and consideration to the provisions contained in section 473 of the Code
We confirm the view of the High Court that in passing the impugned order the learned Magistrate has not in any manner reviewed his earlier order dated September 20 1976
In the result these appeals are dismissed
The prosecutions will proceed and be disposed of expeditiously in accordance with law
The learned Magistrate will dispose of these cases by considering all the points together that is to say without treating any particular point as a preliminary point
NVK Appeals dismissed


Summary:
The Provident Fund Inspector filed complaints against the appellants Directors and Factory Manager and respondent No2 Company charging them with non payment of employers contribution under the Employees  Provident Fund and Family Pension Fund Act 19 of 1952 alleging that the accused did not pay the employers contribution to the Fund from February 1970 to June 1971
At the commencement of the trial the accused filed applications contending 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
These applications were rejected by the Judicial Magistrate on the ground that the offences of which the accused were charged are continuing offences  and therefore no question of limitation could arise
This order was upheld by the High Court in the revision applications filed by the appellants
In the appeals to this Court filed by the Directors of the Company it was contended that the offence of non payment of the employers contribution can be committed once and for all on the expiry of fifteen days after the close of every month and therefore prosecution for that offence must be launched within the period of limitation provided in section 468 of the Code
627 Dismissing the appeals  HELD 1
The offence of which the appellants are charged namely non payment of the employer s contribution to the Provident Fund before the due date is a continuing offence  and therefore the period of limitation prescribed by section 468 of the Code cannot have any application
The offence which is alleged against the appellants will be governed by section 472 of the Code according to which a fresh period of limitation begins to run at every moment of the time during which the offence continues
636 D E 2
The concept of continuing offence  does not wipe out the original guilt
It keeps the contravention alive day by day
636 D SV Lachwani vs Kanchanlal C Parikh and others  over ruled
Courts when confronted with provisions which lay down a rule of limitation governing prosecutions in cases of this nature will give due weight and consideration to the provisions contained in section 473 of the Code
That section is in the nature of an overriding provision according to which notwithstanding anything contained in the provisions of Chapter XXXVI of the Code any Court may take cognizance of an offence after the expiry of the period of limitation if inter alia it is satisfied that it is necessary to do so in the interest of justice
636 F G 4
The expression continuing offence  is not defined in the Code but that is because expressions which do not have a fixed connotation or static import are difficult to define
The question whether a particular offence is a continuing offence  must necessarily depend upon the language of the statute which creates that offence the nature of the offence and above all the purpose which is intended to be achieved by constituting the particular act as an offence
632 E 635E State of Bihar vs Deokaran Nanshi 19731 SCR 1004 explained
The offence of which the appellants is charged is the failure to pay the employers contribution before the due date
Considering the object and purpose of this provision which is to ensure the welfare of workers it is impossible to hold that the offence is not of a continuing nature
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 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 offence635 F G 628 6
To hold that the employer who has not paid his contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation would be putting an incredible premium on lack of concern for the welfare of workers
Such offences must be regarded as continuing offences to which the law of limitation cannot apply
635 G 636 A