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Respondents

Criminal Appeal No. 19-D of 1967, decided on 16^th November 1967.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 25th April 1966, in Criminal Revision Case No. 644 of 1965).

, S. 116 read with Criminal Procedure Code (V of 1898), Ss. 1 (2), 234 & 32- Running saw mill within limits of Municipality, without licence, declared offence under Ordinance-M prosecuted under S. 116 of Ordinance and Magistrate finding him guilty imposing fine of Rs. 500 and ordering him to dismantle mill-M running mill, despite order-Magistrate on fresh complaint imposing fine of Rs. 7,020 calculated at Rs. 20 per day from date of previous convic tion and further As. 20 from date of latter conviction till he stopped running mill-Imposition of fine aggregating to Rs. 7,020 held, in excess of pecuniary jurisdiction of Magistrate under S. 32, Cr. P. C. but second order of conviction, nevertheless, held, not illegal Ordinance being a special statute and .providing in its S. 116 punishment for continuing offence, limitation as regards trial of offences contained in S. 234, Cr. P. C. could not be invoked -Total amount of fine reduced to Rs. 500 but latter part of order imposing Bs. 20 per day till M ceased running mill maintained

Amir Khan v. The State 13 D L R 892 distinguished.

Abdus Salam Khan, Senior Advocate Supreme Court (R. K. Bamk, Advocate Supreme Court with him) instructed by M. Behtar Ali, Attorney for Appellant.

Akram Hossain Amin, Advocate Supreme Court instructed by Baliluddin Ahmad, Attorney for Respondent.

Date of hearing: 16th November 1967.

- This appeal raises the question whether imposition of fine under section 116 of the Municipal Administration Ordinance, 1960, in case of a continuing offence for every day from the first commission of the offence during the period the offender has persisted in the offence is in violation of sections 32 to 35, 234 and 403 of the Code of Criminal Procedure.

Running of a saw mill within the limits of the Dacca Municipality is an offensive trade and under the Municipal Administration Ordinance it is an offence to carry on this trade without a licence. It is admitted that Amanullah Molla, respon dent, is running a saw mill on Haricharan Roy Road since 18-6-1963, and that he does not have a licence for this purpose. On a complaint lodged by the appellant under section 116 the respondent was convicted by the Sub-Divisional Magistrate on 6-7-1964 and sentenced to pay a fine of Rs. 500 and further directed to dismantle the saw mill. As the latter part of the order was not covered by any provision of the Municipal Administration Ordinance of the Rules it was on appeal by the respondent set aside by the Sessions Judge on 20th December 1965.

The respondent continued to run the saw mill whereupon the appellant on 30th March 1965, filed a fresh complaint .against him in the Court of a local Magistrate.

Five witnesses were examined by the appellant in support of the complaint who deposed to the effect that in spite of the earlier conviction the respondent had continued to run the saw mill which was affecting the health of the people living in the neighborhood.

The respondent did not deny these facts and examined no witness in defence. Consequent thereupon the Magistrate found the respondent guilty and by order dated 21-6-1965 sentenced him to pay a fine of Rs.:10 per day from 6-7-1964 till he stopped the running of the saw mill.

In revisional jurisdiction the High Court set aside the convic tion and sentence of the respondent on the finding that fine of Rs. 20 for every day imposed by the Magistrate from 6-7-1964 to 21-6-1965 exceeded his pecuniary jurisdiction of Rs. 1,000 as a first class Magistrate and that the trial for indefinite number of offences and without any limit of time was in breach of section 234 of the same Code. The imposition of further fine of Rs. 20 per day until the respondent closed down the saw mill was also held to be bad in law.

It is plain that the imposition of fine of Rs.20 for every day from 6-7-1964 to 1-6-1965 amounting to Rs. 7,020 vas in excess of the pecuniary jurisdiction of the trial Magistrate, but it did not follow that the conviction was thereby rendered illegal. it was the duty of the High Court thereupon to modify the sentence of line anti bring it within the limit placed by section I 16 of the Municipal Administration Ordinance, 1460. and section 32 of the Code of 0iminal Procedure.

The main question argued before the High Court, however, was that the imposition of fine of Rs. 20 for every day from the date of conviction for an indefinite period until the respondent closed the saw mill was in breach of section 403 of the Code of Criminal Procedure which provides that a person cannot be convicted twice for the same offence and that it was also in breach of section 234 tinder which a person can be tried for not more than three offences of the same kind committed within the course of 12 months.

Section 116 of the Municipal Administration Ordinance, 1960, provides as under:--

"116. 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."

The learned Judges concluded that "continuing offence" is not a fresh offence, but "when the same offence is continued" and relied for this purpose oil a Full Bench decision of the High Coin t of Fast Pakistan Amir Khan v. The State (13D1.RS92). In that case an Afghan national had entered Pakistan in breach of the Foreigners order, 1951, and was sentenced to imprisonment for three months and to pay a line of Rs. 25(1 by a Magistrate. After suffering the punishment the accused continued to stay in Pakistan and was again tried and convicted under the same provision of the Foreigners Order. It was held that the conviction was bad under section 403 of the Code of Criminal Procedure for no fresh offence was committed by the accused. There is no provision of "a continuing offence" in the Foreigners Order. The offence of illegal entry was, therefore, completed as soon as the accused had entered the territories of Pakistan without a permit and no fresh offence was committed by him in continuing to stay within Pakistan. There are, however, other provisions in the Foreigners Order to meet such a contingency, such as, deportation of the offender under section 6 (2). The decision in the case of Amir Khan v. The State was thus clearly distinguishable and did not apply to the legality of fine for a continuing offence under section 116 of the Municipal Administration Ordinance.

In regard to the imposition of a fine of Rs. 20 for every day after the date of the first commission of the offence under section 116 the learned Judges held that the continuation of the offence amounts to commission of fresh offence every day and therefore the conviction recorded by the trial Magistrate was 'vague', indefinite', and without any limit of time and as such repugnant to section 234 of the Criminal Procedure Code. It was noticed that section 116 of the Municipal Administration Ordinance, 1960, was, within section 1 (2) of the Code a special a law and would, therefore, override the provisions of the Code, but section 234 was held applicable as no special procedure for trial of offence under section 116 is provided to the Ordinance.

Both the grounds adopted by the learned Judges do not hold good. In effect they have repealed the salutary provision of section 116 of the Municipal Administration Ordinance which provides for an advance punishment for continuation of an offence to act as a deterrent. Our attention was drawn by N1r. Abdus Salam Khan, learned counsel for the appellant, to some British Health and Sanitation Regulations and the Bengal Municipal Act, 1932, in which similar provisions existed. It is a well recognized form of legislation in this field and there is nothing repugnant to the general principles of law which the learned Judges in the High Court could not accommodate. The object is to avoid the necessity of bringing repeated actions in respect of repeated nuisances of the same kind.

As to the application of section 234 of the Code of Criminal Procedure which puts certain limits on the trial of offences it is sufficient to observe that section 11.6 of the Municipal Administra tion Ordinance, 1960, not only provides the substantive law as to punishment of offences within its purview, but also lays down a special procedure, namely, that in case of a continuing offence, the Court may impose a "further tine which may extend to twenty, rupees for every day after the date of the first commission during which period the offender has persisted an the offence'. In the face of this specific provision section 234 of the Code of Criminal Procedure could not be invoked. On the above view the order of the High Court setting aside the conviction and sentence of the respondent is not sustainable -- in law. The appeal is, accordingly, allowed and the order of the trial Magistrate restored with the modification that the fine imposed on the respondent for the period 6.7-1964 to 21-6-1965 is reduced to Rs. 500 as provided in section 116 of the Municipal Administration Ordinance. The other part of the order imposing a fine of Rs. 20 per every day from 21-6-1965 when the conviction was recorded till the respondent continues to run the saw mill without licence shall continue to operate as directed.

Appeal accepted.

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