Encroachment is a continuing offence under the provisions of the Rajasthan Municipalities Act, 1959, and the proviso to Section 265 of the Act does not bar prosecution in respect of continuing offences.

L. N. CHHANGANI, J.

( 1 ) THIS is an appeal by the Municipal Council, Ganganagar, on leave granted under section 417, Sub-section (3), Criminal P. C. , and is directed against the appellate order of the Sessions Judge, Ganganagar, dated 23rd of February 1963, by which he accepted the respondent Ravatrams appeal, set aside his conviction under section 203 of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred as the Act) and acquitted him of the offence.

( 2 ) THE facts leading to the appeal are not in controversy and lie in a very narrow compass. On behalf of the Municipal Council, Ganganagar, a complaint dated 2nd november 1961, was presented in the Court of Sub-Divisional Magistrate, ganganagar, for respondents prosecution under. Section 203 of the Act. It was alleged that the respondent made an encroachment by constructing a room and a compound wall around the room in Harijan Colony Ward No. 18. It was further stated in the complaint that the respondent had been previously prosecuted in the court of Sub-Divisional Magistrate and was fined Rs. 20/-on 25th May 1959. This complaint was transferred to the Court of Tehsildar and Magistrate Second Class, ganganagar. The accused was examined on 11th of August 1962, and his plea was recorded. He admitted that he had made an encroachment but pleaded that the encroachment had been made six or seven years before. Thereafter, the Municipal council examined one witness Kishanlal P. W. 1 on 19-9-1962. The accused also examined two witnesses Chothuram D. W. 1 and Moolaram D. W. 2 on 3-10-1962. The Magistrate after considering the evidence of the parties found the accused guilty under Section 203 of the Act and convicted him for that offence and sentenced him to a fine of Rs. 20/- by his order dated. 25-10-1962. He also gave a direction in his order that the accused-respondent would remove the encroachment within three months. The respondent filed an appeal in the Court of Sessions Judge, Ganganagar. The sessions Judge found that the Magistrate had not stated any date of the commission of the offence in his judgment. Before him the counsel for the parties agreed that the encroachment had been made more than six months before the date of the filing of the complaint. He, therefore, held that the prosecution of the respondent was barred under the proviso of Section 265 of the Act. In arriving at this conclusion the learned Sessions Judge held in the first instance that the encroachment was not a continuing offence and secondly, that proviso to Section 265 of the Act applied to cases of continuing offence. He accordingly accepted the appeal and set aside the conviction of the appellant (respondent here) and acquitted him.

( 3 ) THE counsel for the respondent in the first instance raised a preliminary objection that the present appeal is clearly time barred and deserves to be dismissed on that ground. The facts necessary for the disposal of the preliminary objection are briefly these -The order of acquittal was pronounced by the Sessions Judge on 23rd of february, 1963. The appellant submitted an application for leave to appeal under Section 417, Sub-section (3), Criminal P. C. on 3rd of May, 1963. In the application for leave the grounds on which the order of acquittal was sought to be challenged were mentioned in sufficient detail. The applicant however, omitted to enclose a separate memorandum of appeal along with the petition for leave to appeal. However, the appellant filed a separate memorandum of appeal on 30th of August, 1963. This Court granted leave to appeal on 19th September, 1963. From the above statement it is obvious that the memorandum of appeal filed on 30th of August, 1963 was certainly after the expiry of three months from 23rd February, 1963, the order of acquittal, and it is this fact which is being emphasised by the counsel for the respondent for his contention that the appeal should be treated as time-barred under article 157 of the Limitation Ac