The offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code is a continuing offence.

A.P.CHOWDURI, J.

1. The short significant question for our decision is - whether the offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code is a continuing offence.

2. While hearing Cri. Misc. No. 7923-M of 1989 J. S. Sekhon, J. noticed a conflict of views on the point. In Cri. Misc. No. 2985-M of 1989 (Renu and others V/s. The State of Haryana) decided by J. S. Sekhon, J. on 12/02/1990, and in Hakam Singh V/s. The State of Punjab 1989 (2) Recent Cr 442, decided by one of us (A. P. Chowdhry, J.), it was held that the offence under Section 406 was continuing offence. In Gurvel Singh V/s. Rajinder Singh, 1990 Marriage Law Journal 131, S. D. Bajaj, J., on the other hand, held that Section 496 did not amount to a continuing offence.

3. By order dated 3/05/1990, the learned Judge referred the aforesaid question for decision by a larger Bench. This is how the case has been heard by us.

4. Chapter XXXVI (Sections 467 to 473) relating to limitation for taking cognisance of certain offences was added in Code of Criminal Procedure, 1973, for the first time. Section 467 relates to definitions. Section 468 prescribes the period of limitation for various offences, a smaller period of limitation having been prescribed for offences punishable with smaller imprisonment and larger period of limitation being prescribed for offences punishable with greater imprisonment. The period of limitation for offences punishable up to three years, is three years. The offence under Section 406 would fall in this category unless it was held to be a continuing offence. Section 469 relates to commencement of the period of limitation. Sections 470 and 471 deal with exclusion of time in certain cases. Section 472 lays down that in the case of continuing offence, a fresh period of limitation shall begin to run at every moment of time during which the offence continues. And lastly Section 473 empowers the Court to take cognizance of an offence after the expiry of period of limitation if it is satisfied, on the facts and circumstances of the case, that the delay has been properly explained or that it was necessary to do in the interest of justice.

5. As the question before us is not directly covered by any decided case, we have examined the question on principle as well as with the aid of precedents.

6. The expression "continuing offence" occurring in Section 472 of the Code of Criminal Procedure is not defined in the Code. In State of Bihar V/s. Deokaran Kenshi, AIR 1973 SC 908 : (1973 Cri LJ 347), which is a locus classicus on the subject, the concept of continuing offence was explained by the Supreme Court in these words :-

"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 recures, 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."

7. The question again came up for consideration in Bhagirath Kanoris V/s. State of M. P., 1984, Lab IC 1578. Their lordships referred to the above passage in Deokaran Nenshis case (supra) and observed that it was obviously difficult to explain the concept of continuing offence and in view of the said difficulty the apex, Court gave a few illustrative cases to bring, out th