A Study Of The Law of Limitation under Cr.P.C to File a Case

A Study Of The Law of Limitation under Cr.P.C to File a Case | Overview

• Introduction
• Limitation to Prosecute under Cr.P.C
• Period of Limitation and bar to prosecute
• Commencement of the Period of Limitation
• Essential Considerations
• Condonation of Delay

Introduction

Limitation, etymologically, refers to a restriction or a restraint from doing anything. In its ordinary legal and popular sense, limitation connotes to the time within which an action may be brought or a case may be filed before a court to preserve a right. Aiyar’s Lexicon defines ‘limitation period’ as “a statutory period after which a lawsuit or a prosecution cannot be brought in a court”[1]. This article aims to analyse the limitation period to file a case under the Code of Criminal Procedure, 1973.

It is common legal prudence that a case cannot be filed or heard after a certain period of time. The law is based on the maxim in Roman law that states ‘Vigilantibus Et Non Dormientibus Jura Subveniunt’, i.e. law comes to the assistance of those who are vigilant with their rights and not those who sleep on their rights. Thus, after the statutory period of limitation has expired, the court is not legally bound to hear or try the case. Law of limitation has several exceptions but in a nutshell, it is relevant to know that limitation period are not absolute and can be condoned at the discretion of the court.

Limitation to Prosecute under Cr.P.C

Sections 467 to 473 of the Code of Criminal Procedure, 1973 deal with the law related to the limitation to initiate a prosecution. These provisions explain, in detail, the duration of limitation, when it starts, when it ends and what happens if the case is not filed within the limitation period.

• Period of Limitation and bar to prosecute

Section 467 defines the expression ‘period of limitation’ as the period specified in section 468 for taking cognizance of an offence. The definition uses the term “means” which implies that the definition is exhaustive and the period of limitation shall include only those periods mentioned in Section 468 irrespective of the period mentioned in the Limitation Act, 1963.

Section 468 (2) divides the offences under the penal laws into three groups and prescribes limitation for each group. Firstly, offences which are punishable only with fine will have a period of limitation amounting to six months. Secondly, if the offence is punishable with imprisonment for a term not exceeding one year the period of limitation shall be one year. Lastly, if the offence is one punishable with an imprisonment of more than one year but not exceeding three years, the period of limitation shall be three years.

Thus, no court shall take cognizance of an offence of the three categories specified above after the expiry of the period of limitation[2]. The code does not talk about the offences which are punishable with imprisonment for a term exceeding three years. It is implied and followed that offences punishable with imprisonment for a term exceeding three years are not barred by limitation and can be filed whenever possible provided the court is satisfied with the reasons provided for delay in filing the case.

Moreover, Section 468 (3) also provides that if there are several offences which can be tried together in one trial, the period of limitation shall be that of the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. For instance, A joins a group of terrorists who were planning to bomb the Taj Mahal and initiates executing their plans with them.

He is caught by the police during one of his visits and charged with ‘being a member of an unlawful assembly’ punishable with six months’ imprisonment, ‘joining an unlawful assembly armed with deadly weapon’ punishable with two years’ imprisonment and ‘rioting armed with deadly weapon’ punishable with 3 years’ imprisonment. Thus, since the maximum punishment is for ‘rioting armed with a deadly weapon’ which is punishable with 3 years’ imprisonment, this shall be considered to calculate the period of limitation.

• Commencement of the Period of Limitation

The period of limitation, in any normal circumstances, shall always commence on the date on which the offence was committed. Even if the case is reported later, the period of limitation for the purpose of commencement of trial shall be computed from the date of the commission of an offence and not on the date when it was reported before the police.

However, the code makes provision for circumstances where the date of offence is not known to the victim or the police officer. According to Section 469 (1) (b), where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier shall be the commencement date for computation of period of limitation.

Moreover, when the identity of the offender is not known to the victim or the police, the period of limitation shall commence when the identity of such a person is known. This ensures that the time spent on an investigation by the police does not deprive the victim of his/her rights. Section 469 (2) also states that the day when the commission of an offence is known or when the identity of the accused is known, as the case may be, shall be excluded while computing the limitation period.

• Essential Considerations

While computing the period of limitation, the courts should take into consideration several points such as:

1. If a person has already initiated a prosecution against the accused in the same factual matter but the court is not of competent jurisdiction and the case is dismissed, the court that has competent jurisdiction to try the accused should exclude the time spent by the prosecutor while diligently prosecuting the accused in the wrong court. This provision should also apply to any appeal or revision initiated before a court without jurisdiction.
2. If a person is prevented from prosecuting the accused owing to an order of injunction by a competent court, the period during which the injunction is in force, the day on which the order was issued and the day when the injunction is withdrawn should be excluded while computation.
3. If an offence requires issuance of notice to the other party (e.g. Dishonourment of cheque) or a prior sanction or consent of the Government (e.g. offences against public servants), the time required to serve the notice and receive the reply and the time required to obtain the consent or sanction from the Government should be excluded while computing the period of limitation.
4. If the accused or offender has been absconding from police or has left India in order to abscond and evade justice, the period during which he has been outside India or been absconding should be excluded during the computation.
5. Where the period of limitation expires on a day when the Court is closed, the Court may take cognizance on the day on which the Court reopens.
6. If an offence is a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. For instance, A kidnapped B and hid him in a warehouse in the factory where he works. After a few days, when he did not receive the ransom, he transferred the kid to another place and again waited for ransom. This is, therefore, a continuing offence and thus, the limitation period shall start every time a step is taken towards the commission of an offence.

Condonation of Delay

In Singbel GPU Construction Co-Operative Society Ltd. v. CCE, Chief Justice Vijai Bist of the Sikkim High Court observed that “We are conscious and aware that the law of limitation is sufficiently elastic to allow and enable the concerned Authorities to apply it for substantial justice”[3]. Considering this, the law of limitation is always relaxed according to the procedure established by law and the guidelines given by courts.

Section 473 of the Code allows any court to take cognizance of any offence beyond the period of limitation if it is satisfied that the reasons for such delay has sufficiently been explained and it is necessary to allow the application to condone the delay in the interest of justice. In the Singbel case, the court dismissed the application of the appellant to condone the delay stating that the reasons for the delay were not sufficiently explained.

The court observed that “merely because a non-pedantic approach should be adopted to an application for condonation of delay it is not essential that every delay including those in which the drafting has been done in a haphazard manner and with nary a care to detail or explanation pertaining to the delay with dates thereof be condoned”[4].

The landmark case for condonation of delay is Esha Bhattacharjee v, Raghunathpur Nafar Academy[5]. The court specifically provided that any application for condonation of delay must be drafted with care and circumspection and not in haste or in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. The misuse of the term justice must not be tolerated while dealing with such applications.

References:

1. N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure (6^th ed. 2014).
2. Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18^th 2006).
3. V. Kelkar, Lectures on Criminal Procedure (6^th ed. 2017).

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[1] P Ramanatha Aiyar, Concise Law Dictionary 755 (5^th ed. 2014).

[2] §468 (1), Cr.P.C, 1973.

[3] Singbel GPU Construction Co-Operative Society Ltd. v. CCE, 2019 SCC Online Sikk 105

[4] Ibid.

[5] Esha Bhattacharjee v, Raghunathpur Nafar Academy, (2013) 12 SCC 649.