Holding

The non‑payment of the employer's contribution to the Provident Fund is a continuing offence, so the limitation period under Section 468 does not apply and the offence is governed by Section 472, with Section 473 permitting cognizance if justice requires.

Summary

The Provident Fund Inspector filed complaints against the directors and factory manager of Burhanpur Tapti Mills Ltd for failing to pay the employer's contribution to the Employees' Provident Fund and Family Pension Fund Act, 1952, for the period February 1970 to June 1971. The accused contended that the complaint was barred by the limitation period prescribed in Section 468 of the Code of Criminal Procedure, 1973. The trial court held that the offence of non‑payment of the contribution is a "continuing offence" and therefore the limitation provision does not apply; the High Court affirmed this view. On appeal, the Supreme Court examined whether the failure to make the contribution within the statutory fifteen‑day window constitutes a continuing offence. Relying on the purpose of the EPF Act to protect workers' welfare and on precedents defining continuing offences, the Court held that each day the contribution remains unpaid a fresh offence is committed, making it a continuing offence. Consequently, the limitation period of Section 468 is inapplicable, the offence is governed by Section 472 (fresh limitation runs continuously), and Section 473 permits cognizance after the period if justice requires. The appeals were dismissed, allowing the prosecutions to proceed.

Issues considered

Whether the failure to pay the employer's contribution to the Provident Fund under the Employees' Provident Fund and Family Pension Fund Act, 1952, constitutes a "continuing offence" under the Code of Criminal Procedure, 1973.
Whether the limitation period prescribed in Section 468 of the Code of Criminal Procedure, 1973, applies to the alleged offence.
Whether Section 473 of the Code of Criminal Procedure, 1973, allows a court to take cognizance of the offence despite the expiry of any limitation period.

Legislation cited

Code of Criminal Procedure, 1973s. 468, s. 472, s. 473
Employees Provident Fund and Family Pension Fund Act, 1952s. 14(2A), s. 17
Industries (Development and Regulation) Act, 1951
Sick Textile Undertakings (Nationalisation) Act, 1974

Subjects

continuing offencelimitation periodEmployees' Provident Fund ActCriminal Procedure CodeSection 468Section 472Section 473employer contributionpenal liability

Judgment

BHAGIRATH KANORIA & ORS. ETC.
A

'·
STATE OF M.P. & ORS. ETC.·
August 24, 1984
B (Y.V. CHANDRACHUD, C. I. AND 0. CmNNAPPA REDDY, J]
•
Fmployee1 Provident Fund and Family Peru/on Fund Act 19SZ, Section 14
and Employee•' ProvUknt Fiord Scheme 19SZ, Paralfrap/i J8.

c Employer1 contribution to Provident Fund-NtJnapaymott on du• datei-.
Whether a •continuing offence period of limitation pr1JCrlHd in Section 468 and •
473 of th• Cotk of Criminal Procefur1 Code-App/icahl/ityof.

Code of Criminal Procedure 1973, Sectw"' ./68 tnl 41~/mdnlf ojfe~1-
Whot ls-Period of limitation in continuing ojfencu ..,_. •-of.

D Wordr & Phra1<1 : .contimdnz ojfmce-Mean/111 •/. •

The Provident Fund Inspector filed complaint& apinst the 8.ppellants
Directors and Factory Manager and respondent No.2--COmpany charging
them with non-payment or employers'" contribution under the Employees•
E Provident Fund and Family Pension Fund Act, 19 of 1952, alleging that •
the accused did not pay' the employers contribution to the Fund from
February 1970 to June 1971.

·At the commencement of the trial, the accnscd filed applications
contending that since the limitation prescribed by section 468 of the
F Code of Criminal Procedure, 1973 had expired before the filing of the
complaints, the Court had no jurisdiction to Uke cognizance of the com-
plaitns. These applicatinos were rejected by the Judicial Magistrate on the
ground that the offences of which the accused were charged arc 'continuing
offences' and therefore, no question of limitation could arise. This order
was upheld by tho H:gh Co~rt in the revision applications filed by the
appellants.
G
In the appeals to this Court filed by the Directors of the Company it
was contended that the offence of non·payment of the employers contribu-
, tion can be committed once and for all on the expiry of fifteen days
after the close of every month and, therefore, prosecution for that offence
mnst be launched within tho period of lim'tation provided in section 468
H or the Code.
JI, ll:ANORIA Y. M.l'. i!TATB 627
A
Dismissing the appeals,

HELD 1. The orfence or which the appellant• are charged, namely
non-payment of the employer's contribution to the Provident Fund _before
the due date, is a 'continuing offence' and, therefore, the period of
limitation prescribed by section 468 or
the Code cannot have any applica-
tion. The offence which is alleged against the appellants will be governed B
by section 472 of the Code, according to which, a fresh period of limita-
tion begins to run at every moment of the time during which the offence
continues. [636 D-E)
•
2. The concept of 'continuin1 offence' does not wipe out the
original iuilt. It keeps the contravention alive, day by day._ (636 D] c
S. V. Lachwonl v. Kanchan/a/ C. Parikh and 0th.rs, 1978, Lab. I. C. 868,
over· ruled •
•
3. Courts when confronted with provisions which lay down a rule
of limitation governing prosecutions, in cases or this nature will give due D
weight and consideration to the provisions contained in section 473 of
the Code. That section is in the nature of an overriding provision accor-
ding to which, notwithstanding anything contained in the provisions of
Chapter XXXVI of the Code, any' Court may take cognizance of an offence
after the ~xpiry of the period of tim•tation if, inter alia, it is satisfied
that it is necessary to do so in the interest of justice. [636 F-G]
E
•
4. The expression 'continuing offence' is not defined in the Code
but that is because expressions which do not have a fixed connotation or
a static import arc difficult to define. The question whether a particular
offence is a 'continuing offence' must necessarily depend upon the language
of the statute which creates that offence, the nature of the offence and,
• above all, the purpose which is intended to be achieved by constituting F
the particular act as an orrcncc. [632 E, 635 E]

Stat• of Bihar v Dtokaran N•nlhl, [1973) 1 SCR 1004, explained.
•
$. The offence of which the ·appellants is charied is the failure to
pay the employers contribution before the the due date. Considering the G
object and purpose of this provision, which is to ensura the welfare of
workers, it isimpoSsible to hold that tfie offence is not of a continuing
nature. The appellants were unquestionably liable to pay their contribu-
tion to the Provident Fund before the due date and it was within their
power to pay as soon after tb.c due date had expired as they willed. The
late payment could not have absolved them of their original guilt but it
would have snapped the recurrence. Each day that they failed to comply
• with the obligatioR to pay their contribution to the Fund. they committed
a fresh offence. (635 F-<l)
A
628 SUPREME COURT REPORTS {1985) 1 S.C.R.

6. To ho1d that the employer who 11as not paid his ~ontribution or
the contribution of the en1ployces to the Provident Fund can succ1!Ssfully
evade the penal consequences of his act. by pleading the law of Jin1itation,
·-
would be putting an inc rcdibl~. prc1niu1l1 on lack of concern for the wet~
fare o~ workers. Such offcnc~s .n1ust be regafded as continuing offences
to. which the law of limitation cannpt apply. [635 G-'636 A]

B
CRIMINAL APPELLATE JumsmcnoN Criminal · Appeal Nos.
407 to 418 of 1979.
•
Appeals by Special leave from the judgment and order dated
the 6th July, 1977 and 12th May, 1978 of the Madhya Pradesh
C High Court in Cr!. Case Nos. 857, 851, 853, 858, 852, 850 of 1977
and 1394, 1391, 1395, 1392, 1393 & 1387 of 1976.

WITH

Criminal Appeal No. 828 of 1981
D
Appeal by Special leave from the Judgment and order dated
the I st May, 1981 of the Madhya Pradesh High Court in Cr!. Revi-
sion No. 187 of 1977

AND
E
Criminal Appeal Nos. 315-317 of 1982

Appeal by Special Leave from the judgment and order
dated the 7th September, 1977 of the Madhya Pradesh High Court
in Cr!. Revision No. 186, 185 & 184 of 1977
F
•
G. L. Sanghi. Vtnod Bobde, Jfrs. A. K. Verma, 0. C. Mathur
and D. N. Misra for the Appellant in Cr!. As. 407-18/79.

Gopal Subramaniam and D. P. Mohanty for Respondents Nos.
1 & 2 in Cr!. As. 407-18 of 1979.
G
Mrs. Urmila Sirur, S. N. Kohli and M. P. Jha for the Inter-
voner in Cr!. A .. Nos. 407-18/79.
M. K. Ram11murthy and Miss A. Vaiji for A. C. in Cr!. As. No.
407-18/79.
S. Govind Swaminathan and S.K. Gambhir for the appellants '
• Crl. A.. 828/&l and Cr!. A. Nos. 1128/81 &. 315-17/82.
a. KANORIA v. M.P. 5TATE (<':handrachud, C.J.) 629

N. C. Taluqdar and Miss A. Subhashini for the Respondents A
in Cr!. A. Nos. 828/81 & 315-317/82.

The Judgment of the Court was delivered by

CHANDRACHUD C.J. These appeals raise a question of general
public importance as to whether failure to pay the employers' contri· B
bution to the Provident Fund is continuing offence. If it is, no
• question of limitation can arise. On the other hand, if it is not a
continuing offence, the complaint for non-payment of the contri·
bution has to be filed within the stated period.

The facts of these appeals vary from case to case but such
c
variation is inconsequential for our purpose. We will therefore
state the facts of a representative group of these cases which com·
prises Criminal Appeals Nos. 407-418 of 1979.

On August 22, 1975 the Provident Fund Tnspector, Indore, D
• Madhya Pradesh, filed six complaints against the appellants and
respondent 2, charging them with non-payment of employers' con-
tribution under the Employees Provident Fund and Family Pesion
Fund Act 19of1952, (referred to herein as "the Act"). Respon-
dent 2 is a Company called M/s Burhanpur Tapti Mills Limited,
of which appellants l to 3 were Directors ·and appelllant 4 the E
Factory Manager. Under section 17 of the Act, the Company was
granted exemption from the operation of the Employees Provident
Fund Scheme, 1952 which is framed under the Act. That exemption
was granted on the condition that the Company will transfer mon-
thly collections of the Provident Fund of workers, inclusive of the
employers' contribution, to the Board of Trustees of the Fund with· F
in 15 days of the close of each month. The allegation against the
accused, about which there is no factual dispute, is that they did
• not pay the employers' contribution to the fund from. February
1970 to June 1971.
G
At the commencement of the trial, the accused filed applica-
tions contending that since the limitation prescribed by section 468
of the Code of Criminal Procedure, 1973 (referred to herein as "the
Code"), had expired before the filing of the complaints, the Court
haci no jurisdiction to take cognizance of the complaints. Those
applications were rejected by the learned Judicial Magistrate by an
order dated November 29, 1976 on the ground that the offences of H
630 SuPRJiME COURT RllPOllT~ (1985) I s.c.t>..

A which the accused were charged are continuing offences and there-
fore, no question of limitation could a'rise.

The accused filed revision applications in the High Court of
Madhya Pradesh against the order passed by the trial court. By a
judgment dated July 6, 1977 a learned single Judge of the High
•
B
Court upheld the order of the trial court and dismissed the revision
petitions. The Directors of the company who, along with the
company, were arraigned as the accused have filed these appeals by •
special leave, against the judgment of the High Court.

c By a Notification dated April 22, 1971 the Company was decla-
red as a Relief Undertaking under the Industries (Development
and Regulation) Act, 1951. As a result of that notification, the
administration and control of the Company are vested in an admi-
nistrator appointed by the Central Government under that Act.
Later, the Company was notified as a Sick Textile Undertaking un-
D der the First Schedule to the Sick Textile Undertakings (Nationalisa-
tion) Act, 1974, which came into force on April I, 1974. •
The complaints for non-payment of the employer's contribution
to the Provident,Fund were filed against the accused under section
14 (2A) of the Act which reads thus :
E "Section 14. Penalties.
x x x x

F
(2-A). Whoever contravenes or makes default in com-
plying with any provision of this Act or of any condition
subject to which exemption was granted under Section 17
•
-
shall, if no other penalty is elsewhere provided by or under
this Act for such contravention or non-compliance, be
punishable with imprisonment which may extend to three
months or with fine which may extend to one thousand
rupees, or with both."
G
The allegation against the accused is that by not paying their
~-
contribution to the Provident Fund, they committed default in com-
plyinii; with the condition subject to which exemption was granted
to them under section 17 of the Act from complying with the
provisions of the Act. Stated briefly, section 17 confers upon the
appropriate Government the power to exempt any establishment

• from the operation of all or any of the provisions of the Act, if
b. ltANORIA v. M.P. stATE (Chandrachud, C.J.) 631
such estabHshment has its own scheme of Provident Fund, of which A
the rules are not less favourable than the rules of the scheme framed
under the Act. The Company, in the instant case, was granted
exemption under section 17 on the condition that it shall pay the
employer's contribution within fifteen days of the close of each
month. This condition is the same as the one contained in paragraph
B
38 (I) of the Employees' Provident Funds Scheme, 1952. Paragraph
38 (!) reads as follows, in so far as is relevant;
•
"38. Mode of payment of contribution-

(I) The employer shall, before paying the member his
c
wages in respect of any period or part of period for which
contributions are payable, deduct the employee's contribution
from his wages which together with his own contribution ...
... he shall, within fifteen days of the close of every month,
pay ... to the Fund."
D
•
The question as to whether the offence of non-payment of the
employer's contribution of the Provident Fund is a continuing
offence, arises because of the provisions contained in Chapter XXXVI
of the Code which is entitled 'Limitation for taking cognizance
of certain offences.' Sections 468, 472 and 473 which occur in that
.E
Chapter and which are relevant for our purpose, read as follows:-

"468. (!) Except as otherwise provided elsewhere in
this Code, no Court shall take cognizance of an offence of
the category specified in sub-section (2), after the expiry of
the period of limitation. , F

(2) The period of limitation shall be-
•
(a) six months, if the offence is punishable with
fine only ;
G
(b). one year, if the offence is punishable with
imprisonment for a term not exceeding one
year;

(c) three years, if the offence is punishable with
imprisonment for a term exceeding one year H
but not exceeding three years."
632 SUPREME COURT REPORTS (1985] I S.C.R.

A "472. In the case of a continuing offence, a fresh period
of limitation shall begin to run at every moment of the time
during which the offence continues."
"473. Notwithstanding anything contained in the fore-
going provisions of this Chapter, any Court may take cogni-
B zance of an offence after the expiry of the period of limita-
tion, if it is satisfied on the facts and in the c1rcumstances of
the case that the delay has been properly explained or that
it is necessary so to do in the interests of justice."
•
It is contended by Shri Bobde who appears on behalf of the
c appellants that, the offence of non-payment of the employer's
contribution can be committed once and for all on the expiry of
fifteen days after the close of every month and, therefore, prosecu-
tion for that offence must be launched within the period of limita-
tion which is mentioned in section 468 of the Code. It is common
ground that ifthe offence is non-continuing, the period of limitation
D for filing the complaint will be one year as provided in clause (b)
of sub-section (2) of section 468 since, the offence in the instant •
case is punishable with imprisonment which may extend to three
months or with fine.
It is impossible to accept Shri Bobde's contention. The expres-
E sion 'continuing offence' is not defined in the Code but, that is •
because expressions which do not have a fixed c0nnotation or a
static import are difficult to define. How difficult it is to put the
concept of a continuing offence in a strait jacket is illustrated by
the decision of this Court in State of Bihar v. DeoJwrun Nenshi.( 1)
F In that case, respondents who were owners of a stone quarry in •
Bombay were required to forward certain annual returns in respect
of the preceding year, on or before January .21 in each year. Failure
to forward the returns as required is punishable with fine under
section 66 of the Mines Act, 1952. The respondents having failed
to furnish the returns by the due date, which was January 21, 1960
G a complaint was filed against them in a Court at Dhanbad on April
12, 1961. One of the contentions of the respondents was that the
complaint was barred by limitation under setcion 79 of the Mines
Act which provided that no Court shall take cognizance of an
offence under that Act unless the complaint was filed within six
H months of the date of the offence. The Explanation to section 79

(1) [1973] 1 SCR 1004.
- B. KANORIA v. M.P. STATE (Chandrachud, C.J.) 633
provided that if the offence in question was a continuing offence, A
the period of limitation shall be computed with reference to every
part of the time during which the said offence continued. It was
held by this Court that the infringement which occured on January
21· of the relevant year was complete when the owner failed to fur-
nish the annual returns on that date. Since, the Regulation did B
not lay down that the owner would be guilty of an offence if he
continued to work the mine without furnishing the returns, the
• offence was non-continuing and, therefore, the complaint was time
barred. While discussing the question as to when an offence could
be said to be a continuing offence, the Court made the following
observations : c
"A 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
D
, 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 recurs, there is the offence
committed. The distinction between the two kinds of offen-
ces is between an act or omission which constitutes an off- E
ence once and for all and an act or omission which conti-
nues and therefore, constitutes a fresh offence every time or
occasion on which it continues. In the case of a continuing
olfence, there is thus the ingredient of continuance of the
offence which is absent in the case of an offence which takes
F
place when an act or omission is committed once and for
all" (p. I 006)

• This passage shows that apart from saying that a continuing
offence is one which continues and a non-continuing offence is one
which is co111mitted once and for all, the Court found it difficult G
> .; to explain as to when an offence can be described as a continuing
offence. Seeing that difficulty, the Court observed that a few illus-
trative cases would help to bring out the distinction between a
continuing offence and a non-continuing offence. The illustrative
cases referred to by the Court are three from England, two from
Bombay and one from Bihar. H
634 SUPREME COURT REPORTS 11985) 1 S.C.R.
A In Best v. Butlar and Fitzgibbon, (') the English Trade Union Act,
1871 made it penal for an officer or a member of a Trade Union to
wilfully withhold any money, books, etc. of the Trade Union. It
was held in that case that the offence of withholding the money
was a continuing offence, the basis of the decision evidently being

B
that every day that the moneys were wilfully withheld, the offence '
was committed.
In Verney v. Mark. Fletcher & Sons Ltd., (2 ) section 10 (I) of the
Factory and Workshop Act, 1901 provided that every fly-wheel •
directly connected with steam, water o; other mechanical power
must be securely fenced. Section 135 provided the penalty for non-
c compliance with section 10 (I), while section 146 provided that
information of the offence shall be laid within three months after
the date on which the offence comes to the knowledge of the Inspec-
tor. Ii was held that the breach of section 10 (!) was a continuing
breach and therefore the information was in time. Every day that
the fly-wheel remained unfenced, the factory was rnn otherwise than
D
in conformity with the Act of I 901 and, therefore, the offence defind
in section 10 was a continuing offence.
The third English case referred to is The London County
Council v. Worley, (')in which section 85 of the Metropolis Mana-
gement Amendment Act, 1852 prohibited the erection of a building
E on the side of a new street in certain circumstances, without the
consent of the London County Council. The Court construed
section 85 as creating two offences : building to a prohibited height
and, continuing such a structure already built after receiving a
notice from the County Council. The Court held that the latter
F
offence wsa a continuing offence. '
In Emperor v. Karandas, (') section 3'0 (I) of the Bombay City
Municipal Act, 1888 provided that no p~rson shall newly establish
in any premises any factory of a certain description without the
previous permission of the Commissioner nor shall any person work
or allow to be worked any such factory without such permission.
G
It was held by the High Court that establishing a new factory was
an offence commited once and for all but working it without
permission was a continuing offence.

(1) [1932] 2 K. B. 108.
H (2! [1909) l K. B. 444.
(3) [1894] 2 Q. B. 826.
(4) A. I. R. 1942 Bom. 326.
a. ltANORIA v. M.P. STATE (Chandrachud, C.J.) 635

In The State of Bombay v. Bhiwandiwala. (1) it was held that
the offence of using the premises as a factory without a licence is a A

' continuing offence.

In State of Bihar v. J.P. Singh, (2) the High Court of Patna held
that conducting a restaurant without having it registered and with-
out maintaining proper registers were continuing offences. B

The decision of this Court in State of Bihar v. Deokaran
Nenshl to the effect that failure to furnish returns before the due
date is not a continuing offence must be confined to cases of failure
to furnish returns. It cannot be extended to cases like those before
us in which, the contravention is not of a procedural or formal c
nature and goes against the very grain of the statute under conside-
raion. What is of closer resemblance to the cases. before us are the
three English cases, the two Bombay cases and the Patna case
referred to by this Court as illustrative of cases in which the offences
were held to be of a continuing nature. We adopt the reasoning in
those cases as applicable to the circumstances of the instant D
prosecutions.

The question whether a particular offence is a continuing
offence must necessarily depend upon the language of the statute
which creates that offence, the nature of the offence and, above
E
all, the purpose which is intended to be achieved by constituting
the particular act as an offence. Turning to the matters before us,
the offence of which the appellants are charged is the failure to
pay the employer's contribution before the due date. Considering
the object and purpose of this provision, which is to ensure the
welfare of workers, we find it impossible to hold that the offence is
• not of a continuing nature. The appellant were unquestionably
F

liable to pay their contribution to the Pwvident Fund before the
due date and it was within their power to pay it, as soon after the
due date had expired as they willed. The late payment could not have
absolved them of their original guilt but it would have snapped the
recurrence. Each day that they failed to comply with the obligation
to pay their contribution to the fund, they committed a fresh G
offence. It is putting an incredible premium on lack of concern for
the welfare of workers to hold that the employer who has not paid

(l) I, L. R. 1955 Born. 192. ll
(2) 1963 Bihar Law Journal Report, 78~.
636 SUPREME COURT REPORTS [1985] I s.c.R.
A contribution_or the cotribution of the employes to the Provident
Fund can successfully e~adc the penal consequences of his ~ct by
pleading the law of limitation. Such offences must be regarded as
continuing offences, to which the law of limitation cannot apply. '
Our attention has been drawn to a judgment of the Bombay
B High Court in Criminal Revision Applications 337 and 338 of 1976,
which were decided by a learned single Judge on November 7, 1977. •
It was held in that Judgment that the failure to pay the!employer's
share of contribution to the Provident Fund is not a continuing
offence. For reasons which we have mentioned above, we dissent
c from that judgment. With respect, wc are uanble to appreciate the
reasoning of that judgment that if the failure to pay the employer's
contribution is regarded as a continuing offence, it would be open
to the employer to pay the contribution even after the due date has
expired, in order to escape punishment. The concept of continuing
offence does not wipe out the original guilt. It keeps the contraven-
D tion alive, day by day.

For these reasons, we are of the opm1on that the offence of
which the appellants are charged, namely, non-payment of the emp-
loyer's contribution to the Provident Fund before the due date, is a
continuing offence and, therefore, the period of limitation prescrib-
E ed by section 468 of Code cannot have any application. The offence
which is alleged against the appellants will be governed by section
472 of the Code, according to which, a fresh period of limitation
begins to run at every moment of the time during which the offence
continues. '
F Before we close, we consider it necessary to draw attention to
the provision of section 473 of the Code which we have extracted
above. That section is in the nature of an overriding provision
according to which, notwithstanding anything contained in the
provisions of Chapter XXXVI of the Code, any Court may take
cognizance of an offence after the expiry of the period of limitation
~I
G if, inter alia, it is satisfied that it is necessary to do so in the
interest of justice. The hair-splitting argument as to whether the
offence alleged against the appellants is of a continuing or non·
continuing nature, could have averted by holding that, considering
the object and purpose of the Act, the learned Magistrate ought to
take congnizance of the offence after the expiry of the period of
H
limitation, if any such period is applicable, because the interest
of justice so requires. We believe that in case of this nature, Courts
B. ltANORIA v, M.P. STATE (Chandrachud, C.J.) 637

which are confronted with provisions which lay down a rule of A
limitation governing prosecutions, will give due weight and consi-
deration to the provisions contained in section 473 of the Code .
•
We confirm the view of the High Court that in passing the
impugned order, the learned Magistrate has not in any manner

.. reviewed his earlier order dated September 20, 1976. B

In the result, these appeals are dismissed. The prosecutions
will proceed and be disposed of expeditiously in accordance with
law. The learned Magistrate will dispose of these cases by consider-
ing all the points together, that is to say , withou.t treating any C
particular point as a preliminary point.

N.V.K . Appeals dismissed.

•