History
The Criminal Procedure Code, 1898 contained no general provision for limitation. Though under certain special laws like the Negotiable Instruments Act, 1881, Trade and Merchandise Marks Act, 1958, the Police Act, 1861, The Factories Act, 1948 and the Army Act, 1950, there are provisions prescribing period of limitation for prosecution of offences, there was no general law of limitation for prosecution of other offences.
The approach of Supreme Court while dealing with the argument that there was delay in launching prosecution, when in the Criminal Procedure Code (1898), there was no general provision prescribing limitation, could be ascertained from its judgment in The Assistant Collector of Customs, Bombay & Anr. v. L.R. Melwani & Anr.[ 1970 AIR 962]. It was urged before the High Court in that case that there was delay in launching prosecution.
The High Court held that the delay was satisfactorily explained. While dealing with this question, Supreme Court held that in any case prosecution could not have been quashed on the ground of delay because it was not the case of the accused that any period of limitation was prescribed for filing the complaint. Hence the complaint could not have been thrown out on the sole ground that there was delay in filing the same.
Supreme Court further observed that the question of delay in filing complaint may be a circumstance to be taken into consideration in arriving at the final verdict and by itself it affords no ground for dismissing the complaint.
This position underwent a change to some extent when Chapter XXXVI (Limitation for taking cognizance of certain offence) was introduced in the Cr.P.C. as we shall soon see.
Application for Limitation Act to Criminal Proceedings
It is pertinent to note that the Limitation Act, 1963 does not apply to criminal proceedings except for appeals or revisions for which express provision is made in Articles 114, 115, 131 and 132 thereof.
After conducting extensive study of criminal laws of various countries, the Law Commission of India appears to have realized that providing provision of limitation for prosecution of criminal offences of certain type in general law would, in fact, be good for the criminal justice system.
The reasons to justify limitation period
The Law Commission noted that the reasons to justify introduction of provisions prescribing limitation in general law for criminal cases are similar to those which justify such provisions in civil law such as likelihood of evidence being curtailed, failing memories of witnesses and disappearance of witnesses. Such a provision, in the opinion of the Law Commission, will quicken diligence, prevent oppression and in the general public interest would bring an end to litigation. The Law Commission also felt that the court would be relieved of the burden of adjudicating inconsequential claims.
Paragraph 24.3 is material. It reads thus:
“24.3 – In civil cases, the law of limitation in almost all countries where the rule of law prevails, Jurists have given several convincing reasons to justify the provision of such a law; some of those which are equally applicable to criminal prosecutions may be referred to here:-
(1) The defendant ought not to be called on to resist a claim when “evidence has been lost, memories have faded, and witnesses have disappeared.”
(2) The law of limitation is also a means of suppressing fraud, and perjury, and quickening diligence and preventing oppression.
(3) It is in the general public interest that there should be an end to litigation. The statute of limitation is a statute of repose.
(4) A party who is insensible to the value of civil remedies and who does not assert his own claim with promptitude has little or no right to require the aid of the state in enforcing it.
(5) The court should be relieved of the burden of adjudicating inconsequential or tenuous claims.”
The Law Commission stated its case for extending limitation to original prosecutions as under:
“24.11 – It seems to us that there is a strong case for having a period of limitation for offences which are not very serious. For such offences, considerations of fairness to the accused and the need for ensuring freedom from prosecution after a lapse of time should outweigh other considerations. Moreover, after the expiry of a certain period the sense of social retribution loses its edge and the punishment does not serve the purpose of social retribution.
The deterrent effect of punishment which is one of the most important objectives of penal law is very much impaired if the punishment is not inflicted promptly and if it is inflicted at a time when it has been wiped off the memory of the offender and of other persons who had knowledge of the crime.
Paragraphs 24.13, 24.14, 24.20, 24.22, 24.23, 24.24, 24.25, and 24.26 could also be advantageously quoted.
“24.13 – At present no court can throw out a complaint solely on the ground of delay, because, as pointed out by the Supreme Court, “the question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict, but by itself, it affords no grounds for dismissing the complaint”.
It is true that unconscionable delay is a good ground for entertaining grave doubts about the truth of the complainant’s story unless he can explain it to the satisfaction of the court. But it would be illegal for a court to dismiss a complaint merely because there was inordinate delay.
24.14. – We, therefore, recommend that the principle of limitation should be introduced for less serious offences under the Code. We suggest that, for the present, offences punishable with fine only or with imprisonment upto three years should be made subject to the law of limitation. The question of extending the law to graver offences may be taken up later on in the light of the experience actually gained.
24.20. – The question whether prosecution commences on the date on which the court takes cognizance of the offence or only on the date on which process is issued against the accused, has been settled by the Supreme Court with reference to Section 15 of the Merchandise Marks Act, 1889. Where the complaint was filed within one year of the discovery of offence, it cannot be thrown out merely because process was not issued within one year of such discovery.
The complainant is required by section 15 of the Act to “commence prosecution” within this period, which means that if the complaint is presented within one year of such discovery, the requirements of section 15 are satisfied.
The period of limitation is intended to operate against complainant and to ensure diligence on his part in prosecuting his rights, and not against the Court. It will defeat the object to the enactment deprive traders of the protection which the law intended to give them, to hold that unless process is issued on their complaint within one year of the discovery of the offence, it should be thrown out.
24.22 – Secondly, as in civil cases, in computing the period of limitation for taking cognizance of offence, the time during which any person has been prosecuting with the due diligence another prosecution whether in a court of first instance or in a court of appeal or revision, against the offender, should be excluded, where the prosecution relates to the same facts and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
24.23 – Thirdly, in the case of a continuing offence, a fresh period of limitation should begin to run at every moment of the time during which the offence continues; and we recommend the insertion of a provision to that effect.
24.24 – Impediments to the institution of a prosecution have also to be provided for. Such impediments could be
(a) legal, or
(b) due to conduct of the accused, or
(c) due to the court being closed on the last day.
As regards legal impediments, two aspects may be considered,
First, the time for which institution of prosecution is stayed under a legal provision, and Secondly, prosecutions for which previous sanction is required, or notice has to be given, under legal provision. Both are appropriate cases for a special provision for extending the period of limitation.
We recommend that, where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, than, in computing the period of limitation for taking cognizance of that offence, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
24.25 – We also recommend that where notice of prosecution for an offence has been given, or where for prosecution for an offence the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, then in computing the period of limitation for taking cognizance of the offence, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction, shall be excluded.
24.26 – As illustrations of impediments caused by the conduct of the accused, we may refer to his being out of India, and his absconding or concealing himself. Running of the period of limitation should be excluded in both cases.”
The Joint Parliament Committee
The Joint Parliament Committee (“the JPC”) accepted the recommendations of the Law Commission for prescribing period of limitation for certain offences. The relevant paragraphs of its report dated 30/11/1972 read as under:
“Clauses 467 to 473 (new clauses) – These are new clauses prescribing periods of limitation on a graded scale for launching a criminal prosecution in certain cases. At present, there is no period of limitation for criminal prosecution and a Court cannot throw out complaint or a police report solely on the ground of delay although inordinate delay may be a good ground for entertaining doubts about the truth of the prosecution story.
Periods of limitation have been prescribed for criminal prosecution in the laws of many countries and the Committee feels that it will be desirable to prescribe such periods in the Code as recommended by the Law Commission. Among the grounds in favour of prescribing the limitation may be mentioned the following:
1. As time passes the testimony of witnesses become weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result that the danger of error becomes greater.
2. For the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with the multifarious laws creating new offences many persons at some time or the other commit some crime or the other. People will have no peace of mind if there is no period of limitation even for petty offences.
3. The deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of the persons concerned.
4. The sense of social retribution which is one of the purposes of criminal law looses its edge after the expiry of a long period.
5. The period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly. The actual periods of limitation provided for in the new clauses would, in the Committee’s opinion be appropriate having regard to the gravity of the offences and other relevant factors. As regards the date from which the period is to be counted the Committee considered has fixed the date as the date of the offence.
As, however this may create practical difficulties and may also facilitate an accused person to escape punishment by simply absconding himself for the prescribed period, the Committee has also provided that when the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the period of limitation would commence from the day on which the participation of the offender in the offence first comes to the knowledge of a person aggrieved by the offence or of any police officer, whichever is earlier.
Further, when it is not known by whom the offence has committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence.
The Committee has considered it necessary to make a specific provision for extension of time whenever the court is satisfied on the materials that the delay has been properly explained or that the accused had absconded. This provision would be particularly useful because limitation for criminal prosecution is being prescribed for the first time in this country”
Object of Chapter XXXVI
Read in the background of the Law Commission’s Report and the Report of the JPC, it is clear that the object of Chapter XXXVI (Limitation for taking cognizance of certain offence) inserted in the Cr.P.C. was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences.
In State of Punjab v. Sarwan Singh[1], Supreme Court stated the object of Cr.P.C in putting a bar of limitation as follows:
“The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence.
The object which the statutes seek to sub-serve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.”
It is equally clear however that the law makers did not want cause of justice to suffer in genuine cases. Law Commission recommended provisions for exclusion of time and those provisions were made part of Chapter XXXVI- provisions for exclusion of time in certain cases (Section 470), for exclusion of date on which the Court is closed (Section 471), for continuing offences (Section 472) and for extension of period of limitation in certain cases (Section 473).
Source
Sarah Mathew vs Inst., Cardio Vascular Diseases [2013]
[1] 1981 SCALE (1)619