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Criminal Revision No. 644 of 1966, decided on 25th April 1966.

‑Words "and if the offence is a continuing one" in S. 116‑"Continuing" offence here means "repetitive" offence‑Continuation of act for which one is once punished‑Itself an offence‑ Offender liable to be punished 'with fine of Rs. 25 daily‑Person, however, cannot be punished without limit of time and in disregard of IS. 234, Criminal Procedure Code, 1898‑Criminal Procedure Code (V of 1898), Ss. 234 & 403.

B was convicted under clause 3 of the Second Schedule read with section 116 of the Municipal Administration Ordinance, 1960, for putting up and running a saw mill without a licence and was sentenced to pay a fine of Rs. 500 and ordered to dismantle the saw mill. After his conviction B persisted in running the saw will and so the Magistrate convicted him and sentenced him to pay fine of Rs.20 every day till he continued running the saw mill. Appeal against the order of the Magistrate was dismissed. In revision before the High Court the argument was that B having once been convicted his second conviction was barred under section 403 of the Criminal Procedure Code, 1898 and further that in view of the fact that as there was no indication as to the number of fresh offences for which the trial took place the order of the Magistrate was bad and illegal under the provisions of section 234 of the Criminal Procedure Code. 1898.

Held, where a continuing offence is sought to be punished more than once, the continuance itself is made an offence by the statute. The Municipal Administration Ordinance, 1960 itself y provides for punishment for more than once. It is expressly provided that if the offence is continuing, the offender can be punished to pay a fine of Rs. 20 every day. If punishment is sought for the second time for continuing offence, by continuation the offence is repetitive. It is not continuing of the same offence. It followed, therefore, that the acts of continuation by B amounted to fresh offences for which he could be punished as laid down under the Ordinance. Hence section 403 of the Criminal Procedure Code, 1898, could not be pleaded as a bar. However in such cases,‑, in the matter of procedure, when no particular procedure has been laid down by the Ordinance itself, section 234 of the Criminal Procedure Code becomes operative. Under that section no more than three offences can be tried at one trial if they are committed within a year. In the case of B it could not be known for certain for how many fresh offences the trial took place and B had been convicted and punished. The order simply said from the date of his last conviction to the end of his continuation of the running of the mill.' For any offence under the criminal law, there must be some definite mode of trial, definite accusation and all necessary particulars of the offences. The punishment awarded by the Magistrate was, therefore, illegal.

Amir Khan v. The State P L D 1963 Dacca 92 distinguished.

‑ Trial of offences under Ordinance ‑ Provisions of Criminal Procedure Code, 1898, applicable‑Criminal Procedure Code (V of 1898), S. I.

Abu Hossain Sarkar with Ataur Rahman Khan, Amjad Ali and Sultan Hossain Khan for Petitioner.

Abdus Salam Khan with Md. Behtar Ali for the Opposite- Parties.

The petitioner Aman Ullah Molla has been convicted under clause 3 of the Second Schedule read with section 116 of the Municipal Administration Ordinance No. X of 1960 and sentenced to pay fines at the rate of Rs. 20 for every day after 6‑7‑64 till the petitioner continues the running of the Saw Mill at 16, Hari Charan Roy Road, Dacca without a licence by Mr. B. N. Biswas, Magistrate, 1st Class, Dacca by his order dated 21‑6‑1965.

The appeal against the said order of conviction and sentence has also been dismissed by Mr. A. A. L. Kabir, Additional Sessions Judge, Dacca. Against the said order of the learned Additional Sessions Judge, the present rule has been obtained.

Previously there was a case bearing No. 435/63/T. R. 80/64 against the present Petitioner under sections 115 and 116 read with clause 3 of Schedule 2 of Municipal Ordinance X of 1960.

It was alleged by the prosecution that this petitioner applied for an installation of a Saw Mill at 16, Haricharan Roy Road within Sutrapur Police Station on 27‑1‑65 to the Dacca Municipality which is a residential area and an objection petition against trade licence for such Saw Mill was filed by one Badaruddin Chowdhury of 17, Hari Charan Roy Road complaining that the Saw Mill in the residential area would be a permanent source of nuisance. Mr. Badaruddin again filed an objection to the Chairman who ordered the Assistant Health Officer of the Municipality to enquire into the matter and the officer reported that the site for the Saw Mill was within a thickly residential area and he recommended against the grant of the said licence. He suggested to the Vice‑Chairman of the Municipality to place the application of the accused petitioner in the next meeting of the Municipal Committee with his note and the Vice‑Chairman agreed to that suggestion. In the meantime, the accused set up the Saw Mill without permission or licence and started functioning of the said Mill creating nuisance and affecting the health of the people of that locality. According to the prosecution, the Mill was creating horrifying sound when it ran. Ultimately, the matter was placed before the meeting of the Municipal Committee who did not consider to entertain the application of the accused petitioner in the face of such objection. On 15‑5‑63, Mr. Badaruddin Chowdhury applied to the Chairman of the Municipality inviting attention to his previous applications that the accused petitioner started functioning of unauthorised Saw Mill at the said premises which was close to his residence causing inconvenience and nuisance to the residents of the locality. The Chairman ordered the Health Officer for action against the accused petitioner. On 22‑5‑63, the petitioner was directed by the Health Officer to stop the Saw Mill which was functioning without licence from the Municipality informing that the Municipal Committee has already rejected his application for Trade Licence. He was ordered to close the Mill within 15 days of the receipt of the order. Since he failed to comply with the said order, the above said case, namely, Case No. 435/63/T. R. 80/64 against the petitioner was started under clause 3 of Schedule 2 and sections 115 and 116 of the Municipal Ordinance X of 1960.

The learned Sub‑Divisional Magistrate convicted the accused petitioner and sentenced him to pay a fine of Rs. 530 and in default to suffer simple imprisonment for six months. He was further directed to stop and dismantle the Saw Mill within one month from this order and in case of failure the Municipality was authorised to dismantle the Mill and realise the cost of removal after disposal of the Mill in auction leaving the residue to the accused petitioner. This judgment was passed on 6‑7‑64 by the learned Sub‑Divisional Magistrate.

Against the conviction and sentence, an appeal was preferred to the Sessions Judge Appeal No. 142 of 1964.

The appellate Court below accepted the view of the trying Magistrate and dismissed the appeal so far as the order of conviction an] sentence was concerned. But the appellate Court set aside the remaining portion of the order of tile trial Court namely, dismantling and removal of the Mill holding that that part of the order was not based on any legal authority by his order dated 24‑12‑64.

Thereafter, on 31‑3‑65 the present case was started by the Municipality against the petitioner on the allegation that the accused petitioner even after his conviction on 6‑7‑64 was continuing the running of his Saw Mill in the residential area without licence from the Municipality to the detriment of the public health and sanitation under sections 115 and 116 of the Municipal Administration Ordinance of 1960.

The defence was that the accused petitioner was not running the Mill after his conviction and the case was started without proper complaint. Besides, the petitioner was not informed that his application for licence was rejected. It is denied that the running of the Mill was to detriment to the sanitation of the locality since other Saw Mills were running there without any objection.

The trial Court found that the petitioner continued to run his Saw Mill even after his conviction, it was creating nuisance and was dangerous to local public. In that view of the matter, the trial Magistrate found him guilty of the offence and convicted and sentenced him to pay fine of Rs. 20 for every day after 6‑7‑64 till he continued running to the Saw Mill. As indicated above, the appeal against the said order has been dismissed with some modification regarding the removal of the Mill by the Municipality at the costs of the accused petitioner.

Mr. Abu Hussain Sarkar, the learned Advocate for the petitioner raised the following points:‑

(1) The appellate Court below did not consider the facts as to the continuation of the running of the Mill since after the first conviction of his client.

(2) The second conviction is barred under section 403 of the Code of Criminal Procedure since this is the conviction for the second time for the same offence.

(3) Since there was no proper complaint as contemplated under the Ordinance, the Court wrongly took cognizance of the Ordinance, the Court wrongly took cognizance of the case.

(4) He also pleaded the bar under section 234 of the Code of Criminal Procedure and also section 35 of the said Code. Some decisions including one of our Special Bench reported in Amir Khan v. The State P L D 1963 Dacca 92 have been placed before me.

So far as the first point is concerned, it may be said at the out set that this point relates to purely questions of facts which obviously this Court cannot interfere with.

Before I take up the question of law, I would quote sections 115 and 1.16 of the Ordinance. Section 115 reads as follows:‑

"Every Act or omission specified in the Second Schedule h6.11 be an offence undgr this Ordinance,"

Section 116 reads as follows:‑

"An offence under this Ordinance shall be punished with fine which may extend to five hundred rupees and if the offence is a continuing one, with a further fine which may extend to twenty rupees for every day after the date of the first commission during which period the offender has persisted in the offence."

"Continuing offence" is the point on which bulk of the arguments on both sides of the Bar has been placed. The decision of the Special Bench reported in P L D 1963 Dacca 92 has been relied on by the learned Advocates on both sides. That was a case under Foreigners Order, 1951. This was a case of an Afghan National who entered Pakistan and stayed on without any permit. He was once before convicted and sentenced. For the second time again he was convicted and sentenced for his continuation of stay without permit. Against his conviction and sentence, his case came to High Court. It was held by the Special Bench that his second conviction cannot be sustained in view of the provision of section 403 of the Code of Criminal Procedure holding that it was the same offence which was merely continued and since he was convicted once before, he could not be convicted for the second time for the same offence. In that view, his conviction and sentence were set aside. In the course of hearing of the said case, a number of other cases have been relied and number of statutes and special laws have been discussed including Companies Act, old Municipal Act and some other special Acts where special provisions have been made to deal with repetition of the same offence or continuing the same offence. After reviewing those cases and special provisions of special Acts it has been observed:

"The expression "continuing offence" has received a statutory recognition in the penal law but it is not used in the sense of a "repetitive offence".

"The expression, then an offence is a continuing one" does not convey the idea of a fresh offence which is committed daily. This phrase simply means when the same offence is continued."

While dealing with the case of Afghan National under clause 7 of the Foreigners Order, 1951, their Lordships observed:‑

"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."

In this connection their Lordships observed:‑

"Where a continuing offence is sought to be punished more than once, the continuance itself is made an offence by the statutes themselves."

Since there was no such provision in the Foreigners Order, 1951, their Lordships held it was merely a continuation of the same offence for which the Afghan National was once before convicted and punished, he could not be punished over again for the same offence for mere continuation. In that view, the Afghan National was acquitted and his second conviction was set aside by the Special Bench.

Here in the present case, we are concerned with the Municipal Administration Ordinance which itself provides for punishment for more than once. It is a special law and provisions of this Ordinance will essentially guide and govern the present case. But here no special mode of trial has been provided. So, the provisions of the Code of Criminal Procedure would apply also. The special mode of punishment has been provided by the Ordinance: It is expressly provided that if the offence is continuing, the offender can be punished to pay a fine of Rs. 20 every day. On the principle laid down in P L D 1963 Dacca 92 by the Special Bench that if punishment is sought for the second time for continuing offence, by continuation the offence is repetitive. It is not merely the continuation of the same offence. It follows that these acts of continuation amount to fresh offences for which the offender can be punished as laid down under the present Ordinance. It actually means fresh offence every day. Although Mr. A. Salam Khan appearing for the opposite‑party concedes that the Code of Criminal Procedure applies even to this particular Ordinance, yet, he contends that in the present case, there are no new offences for which the petitioner has been punished. He wants to say that these are not repetitive offences but it is a mere continuing offence for which he can be punished under the Ordinance as has been done in the present case. In the Special Bench the case referred to above, the position in law was clearly different from the one involved in the present case. In the Foreigners Order there was no special provision for punishment for mere continuation. But here in the present case, the law under which the petitioner has been convicted and punished has provided for punishment for more than once for every day or any number of days. According to the principle already referred to that once an act is sought to be punished for more than once, there is a fresh offence. Applying the same principle in the present case, in my judgment there have been repetitive offences for which the petitioner has been punished to pay a fine of Rs. 20 every day. That means that fresh offences have been committed. If that be the position of law, the question arises whether the provision of section 234 of the Code of Criminal Procedure would apply or not. There is no doubt that the Criminal Procedure Code would appeal to the case in the matter of procedure when no particular procedure has been laid down by the Ordinance in question. Under the said section of the Code, not more than three offences can be tried atone trial if they are committed within one year. But here in the present case, there is no knowing for how many fresh offences the trial took place and the petitioner has been convicted and punished. A11 it says is from the date of his last conviction up to the end of his continuation of the running of the Mill. On the face of it, it is vague, indefinite and without any limit of time. To my mind, it cannot be the intention of the said Ordinance to punish a man without any limit of time and with complete disregard to the rules of procedure prescribed for criminal trials. For any offence under the criminal law, there must be some definite mode of trial, definite accusations and all necessary particulars of the offences. But here, if we take it as the complete law both for mode of trial and punishment, it would mean that such a power has been given to a Court just for continuation or repetition, that a man can be punished for any number of times without specifying actual offence or offences. To my mind, the trial is bad in law since no definite accusations have been made as to the offences and other essential particulars. It is also illegal under the provisions of section 234 of the Criminal Procedure Code.

The punishment as provided by the Ordinance is, of course, definite so far as the punishment for days of offence is concerned but it implies no limit to it as if this daily punishment can go on for number of days, months or even years. That cannot be the intention of the law. There must be some limit to any punishment for any kind of offences. In my judgment, this kind of punishment at least must be up to the limit of the maximum powers of a Court. In the present case, if these fines are calculated from the date of the last punishment up to the indefinite period, it would obviously go far beyond the maximum powers of punishment the Magistrate of 1st Class power under sections 32 to 35 of the Code of Criminal Procedure. The punishment that has been awarded in the present case is obviously illegal because the Magistrate had no jurisdiction to impose such amount of fines as he has done in the present case. In that view of the law, I cannot uphold the conviction and sentence in the present case. So far as the point No. 3 is concerned I do not find much substance in the contention that the prosecution was not based on a proper complaint. Essentially all the particulars of a complaint as contemplated under the Ordinance, have been given and it was signed by the Vice‑Chairman. That is perfectly within his competence. It created a bit of confusion because of the old forms which have been retained and used in the present case. But in law, I do not find anything wrong in it.

In view of the opinion expressed above, the rule is made absolute and the order of conviction and sentence complained against are set aside. The petitioner is acquitted of the charge.

K. B. A.

Rule made absolute.

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