Criminal Appeal No 69 of 1972
Appeal by Special Leave from the Judgment and Order dated 22 12 70 of the Calcutta High Court in Crl
Revision No 697 of 1969
PK Chatterjee and Rathin Das for the Appellant
KR Chowdhary for the Respondent
The Judgment of the Court was delivered by CHANDRACHUD CJ
On December 5 1967 the Baranagore Municipality served a notice on the respondent alleging that he had erected an obstruction over the main municipal drain without the permission of the Administrator of the Municipality and calling upon him to remove the same within fifteen days of the date of receipt of the notice
A similar notice was sent to the respondent by registered post which he received on December 7
On the respondent s failure to comply with the requisition the Municipality through the appellant who is its Law Assistant filed a complaint against him under section 2401b read with section 5001b of the Bengal Municipal Act XV of 1932 The Act
The respondent took a preliminary objection to the maintainability of the complaint on the ground that since the prosecution was not instituted within six months next after the commission of the offence it was barred by limitation under section 533 of the Act
That objection having been rejected by the trial court the respondent filed a revisional application in the Calcutta High Court
It will not be quite accurate to say that the respondent s objection in the form in which it was taken by him was upheld by the High Court but the High Court did dismiss the complaint on the ground that it was barred by limitation
The judgment of the High Court rests on when 741 the period of six months began to run than on how the six months  period is to be reckoned
Being aggrieved by the judgment of the High Court dated December 22 1970 the Municipality has filed this appeal by special leave
Section 2401b of the Act provides to the extent material that the Commissioners may issue a notice requiring any person to remove any obstruction or encroachment which he may have erected upon any public street drain or watercourse and which remains so erected after the period covered by any permission given in that behalf has expired
The notice dated December 5 1967 was given by the Municipality to the respondent under this provision
The relevant part of section 5001b of the Act provides that whoever commits any  offence by failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the provisions of the Act shall be punished with fine which may extend to the amount mentioned in the third column of the table following that section
Section 533 of the Act prescribes a period of limitation for filing prosecutions under the Act by providing that no prosecution for an offence under the Act shall be instituted except within six months next after the commission of such offence
The narrow question for determination in this appeal is whether the prosecution was instituted in the instant case within six months next after the commission of the offence as required by section 533 of the Act
For a proper appreciation of this question it is necessary to advert briefly to the scheme of the Act because without a proper appreciation and understanding of what in fact constitutes an offence for the present purposes it will be impossible to resolve the question as to whether the prosecution is barred by limitation
Section 2401 of the Act confers by its three clauses various powers on the Commissioners
Under clause a the Commissioners may without giving a notice remove any obstruction or encroachment which has been erected without obtaining the requisite permission
Clause b on its true reading empowers the Commissioners to issue a notice requiring any person to remove an encroachment which has been erected without permission or which remains erected after the expiry of the period covered by a permission granted in that behalf
Clause c of section 2401 confers upon the Commissioners the power to remove without notice any materials or goods which have been deposited in a public street without the requisite permission or which continue to be deposited after the permission has expired
The person to whom a lawful direction has been given or upon whom a lawful requisition has been made through notice under section 2401b has to carry out the 742 direction or comply with the requisition as the case may be
Failure in that regard attracts penal consequences
Though clause b of section 2401 does not expressly provide that the Commissioners may permit such time as they think fit for the removal of the encroachment it is implicit in the power conferred by that clause that by a proper direction or requisition the Commissioners can allow for the removal of the encroachment such time as they consider reasonable in the circumstances of the case
Section 5001b of the Act creates a somewhat artificial offence which it must be remembered does not consist in the original act of erecting the obstruction or encroachment but in failing to comply with any direction lawfully given to a person or any requisition lawfully made upon him
Respondent having been allowed by the notice dated December 51967 a period of fifteen days for the removal of the encroachment alleged to have been erected by him it is plain that within and during that period he could not have been prosecuted under section 5001b for failure to comply with the direction or requisition
The reason simply is that by the terms of the very notice which contained the direction or requisition he was at liberty to remove the encroachment at any time within fifteen days after the receipt of the notice
In other words failure to comply with the direction or requisition occurred for the first time within the meaning of section 5001b on the expiry of fifteen days after December 5 that is to say after the expiry of December 20
A proper appreciation of this scheme will facilitate the understanding of the true position namely that since the offence under section 5001b for which the respondent is being prosecuted consists of his alleged failure to comply with the particular direction or requisition and since such failure occurred for the first time after December 20 the period of limitation prescribed by section 533 of the Act for instituting the prosecution will commence to run on the expiry of 20th December
It is impossible to accept the submission made by the respondent s counsel that the offence must be deemed to have been committed when the obstruction or encroachment was erected which of course would be prior to December 5 1967 when the Municipality served the notice on the respondent
It may perhaps be that constructing an encroachment or obstruction on a public street may itself amount to an offence under some provision or the other of the Act but we need not go into that question because the offence for which the respondent is being prosecuted does not consist in his erecting the encroachment or obstruction on a public street but in his failure to remove it within the 743 period allowed to him by the notice
The error into which the High Court fell was to hold that the offence was committed on December 5 being the date on which the Municipality gave the notice to the respondent to remove the encroachment
On that date no offence indeed was committed because as stated above the offence charged against the respondent consists in his failure to remove the encroachment within the time allowed by the Municipality by its notice
We must therefore proceed on the basis that the failure to remove the encroachment having occurred on the expiry of December 20 limitation began to run for the purpose of section 533 on that and not on any earlier date
The only question which then requires examination is whether the prosecution which was filed on June 19 1968 was instituted as required by section 533 within six months next after the commission of the offence
An argument was raised in the High Court that six months must be construed to mean 180 days and not six calendar months
The High Court does not appear to have accepted that submission
There the High Court is right because section 327 of the Bengal General Clauses Act I of 1899 defines a month to mean a month reckoned according to the British calendar
The expression six months which occurs in section 533 of the Act must accordingly be construed to mean six calendar months and not 180 days
The offence being alleged to have been committed on the expiry of December 20 1967 and the prosecution having been instituted on June 19 1968 the provisions of section 533 must be held to have been duly complied with
To sum up we are of the view that the offence charged against the respondent consists not in the erection of an obstruction by him but in his failure to comply with the direction lawfully given to him to remove that obstruction that the offence must be deemed to have been committed by the respondent if at all not on the date of the notice viz December 5 1967 nor on any anterior date but on the expiry of the period permitted to him for removing the obstruction viz on the expiry of fifteen days after the receipt of notice and that the expression six months which occurs in section 533 of the Act means six calendar months and not 180 days
For these reasons we set aside the judgment of the High Court and send back the case to the learned Magistrate for disposal in accordance with law
SR Appeal allowed


Summary:
A notice dt
5 12 67 calling upon the respondent to remove within 15 days of the date of receipt of it culvert erected without the permission from the Municipality by him thereby causing obstruction or encroachment over the main municipal drain not having been complied with the Baranagore Municipality through the appellant its Law Assistant filed a complaint against the respondent under s2401b read with s5001b of the Bengal Municipal Act 1932
The respondent s objection to its maintainability on the plea of bar of limitation under section 533 of the Act was rejected by the trial court but upheld by the High Court in revision
Allowing the appeal by special leave the Court  HELD 1 The offence charged against the respondent concerned consists not in the erection of an obstruction by him but in his failure to comply with the direction lawfully given to him to remove that obstruction that the offence must be deemed to have been committed by the respondent if at all not on the date of the notice viz December 5 1967 nor on any anterior date but on the expiry of the period permitted to him for removing the obstruction viz on the expiry of the 15 days after the receipt of the notice and that the expression 6 months which occurs in section 533 of the Bengal Municipal Act means 6 calendar months and not 180 days
743E G a section 2401 of the Act confers by its three clauses various powers on the Commissioners
Clause b on its true reading empowers the Commissioners to issue a notice requiring any person to remove an encroachment which has been erected without permission or which remains erected after the expiry of the period covered by a permission granted in that behalf
Though clause b of section 2401 does not expressly provide that the Commissioners may permit such time as they think fit for the removal of the encroachment it is implicit in the power conferred by that clause that by a proper direction of requisition the Commissioners can allow for the removal of the encroachment such time as they consider reasonable in the circumstances of the case
741F G 742A B b section 5001b of the Act creates a some what artificial offence which does not consist in the original Act of erecting the obstruction or encroachment but in failing to comply with any direction lawfully given to a person or any requisition lawfully made upon him
By the terms of the very notice in the instant case which contained the direction or requisition the respondent was at liberty to remove the encroachment at any time within 15 days after the receipt of the notice
In other words failure to comply with direction or requisition occur for the first time within the meaning of section 5001b on the expiry of 15 740 days after December 5 ie to say after the expiry of December 20
Since the offence under section 5001b for which the respondent is being prosecuted consists of his alleged failure to comply with the particular direction or requisition and since such failure occurred for the first time after December 20 the period of limitation prescribed by section 533 of the Act for instituting the prosecution will commence to run on the expiry of 20th December
742B C D E F 2 Section 327 of the Bengal General Clauses Act Act 1 1899 defines a month to mean a month reckoned according to the British calender
The expression 6 months which occurs in section 533 of the Act must accordingly be construed to mean 6 calendar months and not 180 days
The offence being alleged to have been committed on the expiry of December 20 1967 and the prosecution having been instituted on June 19 1968 the provisions of section 533 have been fully complied with
743D E