Nirma University Institute of Law IV Semester B.A.LL.B. (Hons.)Course
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Prepared & Submitted By
Archit Bohra (09BAL069) Saumitra Chaturvedi(09BAL071)
Submitted To
Mrs. Kanchan Samtani Asst. Prof. (Criminal Law)
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1
Delhi Bitumen Sales Agency, New Delhi v. State of Punjab, 1989 Cri LJ 722 at 724 (P & H).
1.
Limitation for taking cognizance Sub-section (3) of the section 468 of CrPC which was added by the Code of Criminal Procedure (Amendment) Act, 1978, provides that in relation to offences which may be tried together, the punishable with the more or most severe punishment . The language of sub-section (3) of Section 468 is in respect of the offence charged and not in respect of the offence of the offence finally proved . This being the position, in the case in hand, when the respondents were charged under section 468 CrPC read with section 120-B of IPC , for which the imposable punishment is seven years and Section 5( 2) of old prevention of corruption act, 1947 which is punishable with imprisonment for a term which may extend to seven years and for such offences no period of limitation having been provided for in section 468, CrPC, the cognizance taken by the special judge cannot be said to be barred by limitation 2.
2.
Limitation Non-applicability of The provisions of sub section (5) of section 167 do not override the provisions of section 468 . The limitation under 167(5) has no concern with the filing of charge sheet . The magistrate should not refuse to take cognizance of the offence as the basis of the charge sheet simply because the investigation was not complete within the stipulated period of six months 3.
3. Limitation period computation of- the limitation prescribed under section 468 is to be read with reference to the date of cognizance or issuance of process 4. in case of prosecution under sections 7, 19 and 16 (1) of the seeds act, 1966 the period of limitation starts running from the day of the seed analyst submits his report to seed inspector5. There could be a case where the complaint is filed on the last date of limitation and on account of the inconvenience or otherwise of the court sworn statement of the complaint could be recorded only on a later date and the magistrate took cognizance after the expiry of limitation . If the date of taking cognizance is taken the date to determine the period of limitation that would amount to penalizing the party for no fault of his. Such a construction cannot be placed under section 468 of the code . A construction possible in the circumstances is that the bar under section 468 of the
2
State of H.P. v. Tara Dutt, AIR 2000 SC 297 : (2000) 1 SCC 230 Public Prosecutor, High court of A.P., Hyderabad v. Sagam Pratap Reddy, 1988 Cri LJ 1057 (AP). 4 Basavantappa Basappa Bannithalli v. Shankarappa Mariagallappa Bannihalli, 1990 Cri LJ 360 at 362 5 R.S. Arora v. State, 1987 Cri LJ 1215 (Del.) 3
code from taking cognizance will operate only when the complaint is barred by limitation6. 4. Limitation relates to primae facie offence the limitation under section 468 and the following section of the code relates to an offence which is primae facie made out and not to an offence which is ultimately to be found to have been committed7.
5. Limitation time taken for obtaining order- to be excluded the expression order in section 5 2 to be readed at par with the word sanction under section 470(3) of the criminal procedure code . While computing the period of limitation for initiating prosecution with regard to an offence under section 4 9 of the Act of 1948, punishable with fine only the time taken for obtaining the order under section 5 2 has to be excluded8.
6. Limitation period for taking cognizance of offence - there was defalcation of government revenue by accused during 1991 to 1995. Initial offence detected in the year 1991 itself . Accused was reminded at a regular interval to deposit revenue . Last reminder was given on 13.6.1996. Limitation period could, have at best been stretched till 1996. FIR ought to have been lodged on or before 12.6.1999. Impugned order taking cognizance was liable to be set aside as there was no satisfactory explanation given for not filing complaint for next 9 years. It was a case of gross negligence and laches9.
7.
Exclusion of time in certain cases:---
(1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded: Provided that no such exclusion shall be made unless 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 . (2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the 6
Zain Sait v. Intex Painter, 1993 Cri LJ 2213 (Ker.) Devratan v. State of Haryana, 1989 Cri LJ 1044 at 1045 (P & H) 8 George Thomas v. State of kerala, 1987 Cri LJ 1311 (Ker.) 9 K. Vikheho Sema v. State of Nagaland, 2007 Cri LJ 4266 (GAU) (Kohima Bench) 7
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 . (3) Where notice of prosecution for an offence been given, or where, under any law for the time being, in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case be, the time required for obtaining such consent or sanction shall be excluded . In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded . Explanation:-
In computing the period of limitation, the time during which the offender,(a) has been absent from India or from any territory outside India which is under the administration of the Central Government, or (b) has avoided arrest by absconding or concealing himself, shall be excluded .
8. 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 courts reopen. Explanation
- A court shall be deemed to be closed on any day within the meaning of this section, if, during its normal working hours, it remains closed on that day
9. In
the case of continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.
Continuous offence has not been defined in the code because it is not having a fix connotation or static but a continuous offence is one which is susceptible of continuance and is distinguishable from one which is committed once and for all .10 Explanation-
It is one of those offences which arise out of a failure to obey or comply with the rule or its requirement and which involves a penalty, the liability for which continues offence until the rule or its requirement is obeyed or complied with 11. Some of the example for this continues offence are been cited as following-
10 11
Indian Die C.C.P Ltd. V. State,1988 (3) crimes,536,538(Cal-DB) M.R Joseph v. Jones Menzes,2004 Cr.L.J,2291(2294)(kant)
Offence
under Sec-498A,IPC- when sec.498A is brought to use in the case of cruelty on women, the law of limitation is not that rigid so as to non-suit the aggrieved wife . In offence under 498A the last act of cruelty would be starting point of limitation .12Offence under S. 498A, IPC is continuing offence13 . Offence
under Ss-29 and 32of Industrial Dispute Act, 1947 An offence for breach of provisions of section 29 read with Sec3 2 of industrial dispute Act, 1947,is an continuing offence within the meaning of sec4 72,Cr.P.C.14 Non Continuing Offence; Dowry prohibition Act .- The offence of non-return of articles of dowry is complete when the specified period expires and therefore not a continuing offence under Ss 6(1)(b) and 7(b)of dowry Prohibition Act, 1961.15
10.
Notwithstanding anything contained in the foregoing provisions of this chapter, any court may take cognizance of an offence after the expiry of the period of limitation, if it satisfy on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice .
Scope- Sec468 bars a court from taking cognizance of any offence if it is beyond the prescribed period limitation laid down under sub s( 2) of that section; this section, however, however ,lays down two exception .(1) if proper and satisfactory explanation of the delay forthcoming, or ( 2) it is in the interest of justice , the court can take cognizance even beyond the period fixed by S .468(2).Power to condole delay is discretionally judicial discretion can be exercised only when the reason for condoling the delay is sufficiently explained and to do substantial justice. As because delay cannot be condoled sufficiently reasons that is why it is the duty of the magistrate to state expressly the grounds by which he satisfied that delay is properly explained or how he came to the conclusion to condole the delay in the interest of justice .16
12
Ramesh v. State of tamil Nadu,2005(1)Crimes366(370) Indubala(Smt) v. State of UP,2003(4)Crimes 391(392)(All) 14 In re: DibyendraNAth Ray,2002(2)Crimes 365(367) Cal 15 Gursharansingh v. GursharanAkur, 1990 CrLJ 2469 (del) 16 State of Maharashtra v. Sharad Chandra VinayakDongre,(1955)1SCC 42. 13
This section is in the nature of an expression of S .468.Condonation of delay should take place before cognizance of the offence is taken, in view of the opening non-obstante clause in this section, it will prevail over all other provisions in XXXVI with regard to limitation including S.468.17
exercise of power-There is no scope for condonation of delay after taking cognizance of the offence. Such delay has to be condoned in accordance with the provisions of the code, prior to the taking of the cognizance of the offence . Taking cognizance of an offence without deciding the question of limitation is without jurisdiction . Condonation of the delay under this provision shall precede taking of cognizance of offence. Satisfaction for the purpose of extending the period of limitation must be arrived at before taking cognizance .18Taking cognizance beyond the limitation period without condoning the delay is bad and without jurisdiction.
11. Pre-cognizance
These are some of the stances where this Section has been examined from different types of laws. order-where the court take cognizance after the expiry of limitation in the interest of justice, the discretion exercised must be by a speaking order indicating the satisfaction of the court that the delay was satisfactorily explained and the condonation of the same was in the interest of justice .19
12. Speaking
13. Serious
charge-where the charge is that the cutting of the trees has done without licence and therefore, the charge is by nature serious and the delay is only of 6 days, the exercise of the powers conferred on the court to condone the delay is justified . 20
14. Issues
of process do not amount to condonation to delay - Merely because process was issued it cannot be said that delay was condon ed.
17
Shankerlalbhargeva v State of UP,1985(1)Crimes 265,268(All) Krishna Sanghi v. state of MP,1977Cr.L,J90(MP) 1919 State of HP v. taradutt, AIR 2000SC 297 20 sadaYessuDessai v. range forest officer,1988(3) Crimes740(Bom) 18
Several notices to save limitation- several notices issued under S .46 of the Tamil Nadu General Sales Tax Act, 1956 in order to save limitation are not permitted as only one notice can be taken into account for the purpose of this section .21 Revision- If the discretion is condoning delay has been exercised properly,RevisionCourt would not interfere.22if the order condoning delay is not based on proper ground, Revisional Court would interfere .
21 22
Bhaskaran v. State,1990 CrLJ2260(Mad) Ramesh Chandra Sinha v State of Bihar,(2003) 7 SCC 254
