LIMITATIONS IN CRIMINAL PROSECUTIONS.

 

LIMITATIONS IN CRIMINAL PROSECUTIONS.

INTRODUCTION

By this article, the author intends to compile all the provisions contained in the code of criminal procedure, 1973 relating to limit the powers of criminal court and the powers of an investigation officer from the very registration of FIR to the end of trial, so as to enable the members of the bar to utilize this for easy reference.

COGNIZANCE

Section 190 of code of criminal procedure, 1973 defines cognizance of offences by the learned Judicial Magistrates, for easy reference and understanding section 190 Crl.P.C is extracted hereunder:

190. Cognizance of offences by magistrates-

(1) subject to the provisions of this chapter ,any magistrate of the first class and any magistrate of the second class specially empowered in this behalf under sub-section

(2) may take cognizance of any offence –

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a Police report,

(c) upon information received from any person other than a Police officer ,or upon his own knowledge, that such offence has been committed.

COGNIZANCE –MEANING

As per Blacks law dictionary cognizance means :

(1) A Court’s right and power to try and to determine cases.

(2) The taking of judicial or authoritative notice.

It is made clear that what action of the learned Judicial Magistrate would amount to taking cognizance has not been defined any where in the code of criminal procedure, 1973 and the cognizance has been taken with regard to the offences and not against the offender.  

 

[Kishun Singh Vs state of Bihar] (1993)2SCC 16

In the above case it has been held that “cognizance is with regard to the offence and not the offender”

When the Learned Judicial Magistrate after the receipt of the final report takes notice of the accusations and applies his mind into the allegations raised in the complaint or Police report, he is said to have taken cognizance of offence.

The law makers very carefully coined the section 190(1) of Crl.P.C, it starts with “SUBJECT TO THE PROVISIONS OF THIS CHAPTER” …….and so the power under section 190 Crl.P.C is not absolute but curtailed by the various provisions of Crl.P.C.

REMAND

(a) Immediate after the registration of FIR the next stage would be the arrest of accused and their detention in custody, which may be either judicial or police custody, but accused has to be produced before the Learned Judicial Magistrate within 24 hours from arrest as per section 57 of code of criminal procedure.

(b) How to calculate the 24 hours –whether it is mandatory

The language used in section 57 of Code of Criminal Procedure very clearly mandates that, no police officer shall detain a person in custody more than 24 hours, hence production of an accused within 24 hours of arrest before the Learned Judicial Magistrate is mandatory. in [Khatri Vs state of Bihar] reported in AIR 1981 SC 928, it has been held that sec 57 has to be scrupulously followed.

Here, the power of the police officer in keeping the accused in their detention has been curtailed.

POWER TO REMAND

Section 167 of code of criminal procedure, 1973 prescribes the procedure when investigation cannot be completed within 24 hours and it empowers the Learned Judicial Magistrates whether or not having jurisdiction he can authorize the detention of the accused in such custody for a term not exceeding to 15 days in the whole as per Sec. 167(2) Crl.P.C.

(a)……., but no magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding

(i) ninety days where the investigation relates to an offence punishable with death ,imprisonment for life or imprisonment for a term not less than ten years;

(ii) sixty days, where the investigation relates to any other offence and on the expiry of the said period of ninety days or sixty days as the case may be the accused person shall be released on bail.

Section167 (2) (a) (i) (ii) Crl.P.C. restricts the power of the learned Judicial Magistrate in remanding the accused.

Investigation in a summons case, if not concluded within a period of six months from the date of arrest, the Magistrate shall make an order stopping further investigation into the offence as per Section 167(5)Crl.P.C.

Whether Section 167(5) Crl.P.C is mandatory

Yes, unless leave to continue investigation is granted by the concerned Judicial Magistrate, investigation in summons case after six months from the date of arrest has to be stopped, it is mandatory as held in

[Babulal Vs state];

[JaySankarjha Vs state]

Whether cognizance can be taken after 6 months as mentioned u/s. 167(5) of Cr.P.C.

But section 167(5) Cr.P.C. does not preclude the power to take cognizance on the materials collected during six months by the investigation officer. So, even if final report is filed after a lapse of six months cognizance has to be taken on the materials collected by investigation officer within six months from the date of arrest.

The law specifically mandates that in a summons case after arrest of an accused investigation not to continue after six months. So, the cognizance can be taken on the materials collected during six months from the date of arrest, since it was not barred by Section 167(5) Cr.P.C. As decided in the following case. [State of West Bengal Vs. Falguni Dutta] - .

1.1982 Crl.L.J1001

2.1982 Crl.L.J 744 Cal(DB)

3.(1993) 3 SCC 288 = 1993 SCC Crl. 815

 

OFFENCES COMMITTED OUTSIDE INDIA

Section 188 Crl.P.C. defines that when an offence is committed outside India by a citizen of India whether on the high sea or elsewhere or by a person not being a citizen of India on any ship or air craft registered in India, he may be dealt with in respect of such offence as if it had been committed in India. No such offence shall be inquired into or tried in India except the previous sanction of the Central Government.

[Ajay Agarwal Vs. Union of India].

In the above case, it has been held that the sanction to prosecute is not a condition precedent for taking cognizance, but before trial begins, the sanction to be obtained.

From conjoint reading of Section 4 and 188 Cr.P.C., it is clear that if an offence is committed by a citizen of India, outside the country, it is also subject to the jurisdiction of the Courts in India. [A.V. Mohanrao Vs. Kishan Rao] –.

Here, the power of the Judicial Magistrate in taking cognizance under section 190 Crl.P.C has been curtailed.

Section 195 of code of criminal procedure defines about prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence.

Section 195(1)(a) and (b) of Crl.P.C are also exception to the general rule that anybody can set the criminal law on motion.

As per Section 195(1)(a) of Crl.P.C no court shall take cognizance of any offence.

On bare reading of Section 190 Cr.P.C., it is made clear that what action of the learned Judicial Magistrate would amount to taking cognizance has not been defined, but when a Judicial Magistrate in order to take cognizance of the offence taking note of accusation and apply his judicial mind into the allegations made in the complaint or on the police report, he is said to have taken cognizance on the matter. The above view has been reiterated in [Kishan Singh Vs. State of Bihar by the Hon’ble Supreme Court] –.

The learned Judicial Magistrate can ignore the conclusion arrived at by the investigation officer and he can independently apply his mind to the facts and the materials collected and emerging from the investigation and can take cognizance of the offence, if he thinks fit and exercise his power under Section 190(1) (b) Cr.P.C. – [Minnu Kumari Vs. State of Bihar].

WHETHER SESSIONS JUDGE HAS ORIGINAL JURISDICTION

The learned Sessions Judge has no original jurisdiction to take cognizance and to try the cases. Section 193 Cr.P.C., specifically states that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by the Learned Judicial Magistrate.

Here, the Learned Sessions Judge has been barred from taking cognizance. Section 195(1) (b) Cr.P.C., says that any offence punishable u/s. 193 to 196, 199, 200, 205 to 211 and 228, IPC when such offence is committed in or in relation to any proceeding in any Court and also any criminal conspiracy and attempt to commit such offence except on the complaint in writing of that Court or of some other Court to which that Court is subordinate.

Section 195(1) (a) & (b) Cr.P.C., gives exception to the general rule that anybody can launch criminal prosecution as mentioned u/s. 154 Cr.P.C.

When an offence is committed over a document outside the Court and if such document is pressed into service in a judicial proceeding, definitely the police officer has got every right to investigate into the offence.

When a document is in custody of the Court in any proceeding and if any offence is committed over that document, the general power of police officer to investigate into such offence has been curtailed, except on the complaint given by the concerned Court cognizance can not be taken. The conflict views expressed by various Courts came to an end after the authoritative pronouncement by the constitutional bench of the Hon’ble Apex Court reported in [Iqbal Singh Marwah and another Vs Meenakshi Marwah and another] -

Section 196(1) Cr.P.C., says that no Court shall take cognizance of any offence punishable under Chapter VI or under Section 153-A, Section 295-A or sub-section (1) of Section 505 of IPC or a criminal conspiracy to commit such offence or any such abetment as described in Section 108-A of IPC except with the previous sanction of the Central Government or of the State Government.

Likewise, Section 196 (1-A) Cr.P.C., says that no Court shall take cognizance of any offence punishable u/s. 153-B or sub-section (2) or (3) of Section 505 of IPC or a criminal conspiracy to commit such offence except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. Section 196(2) Cr.P.C., says that no Court shall take cognizance of the offence of any criminal conspiracy punishable u/s. 120-B of IPC other than a criminal conspiracy to commit offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings. Here, the general power of the learned Judicial Magistrate in taking cognizance has been limited.

In other cases, there is no bar for initiation of proceedings but sanction is required to take cognizance of offence. Here, as per Section 196(2) Cr.P.C., even to initiate the proceedings u/s. 120-B of IPC as covered by the above provision, the consent of the State Government or the District Magistrate in writing is condition precedent.

SANCTION TO PROSECUTE PUBLIC SERVANTS:

Section 197 Cr.P.C., is a protection to the public servants. It says that when any person who is or was a judge or magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Central Government or State Government as the case may be.

OFFENCES AGAINST MARRIAGE :

Section 198 Cr.P.C., says that no Court shall take cognizance of an offence punishable under Chapter XX of IPC except upon a complaint made by some person aggrieved by the offence.

For easy reference Seciton 198 Cr.P.C is extracted hereunder,

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860 ) except upon a complaint made by some person aggrieved by the offence: Provided that-

(a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to.

1. Added and Ins. by Act 43 of 1991, s. 2 (w. e. f. 1991 ).

make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf; 76

 

(c) where the person aggrieved by an offence punishable under 1 section 494 or section 495] of the Indian Penal Code (45 of 1860 ) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father' s or mother' s brother or sister 2 , or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].

(2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso to subsection (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorisation referred to in clause (b) of the proviso to subsection (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of 1 Subs. by Act 45 of 1978 , s. 17, for" section 494" (w. e. f. 18- 12- 1978 ). 2 Ins. by s. 17, ibid. (w. e. f. 18- 12- 1978 ).

absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorisation and complying with the provisions of sub- section (4), and any document purporting to be a certificate required by that sub- section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse the a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.

It is an exception to the general rule that anybody can set the Criminal Law on motion.

There is a restriction to take cognizance of an offence punishable under Chapter XXI of IPC except upon the complaint by the aggrieved person as per Section 199 Cr.P.C.

Bail

Section 437(6) Cr.P.C

(6). If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody, during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

Prevention is better than cure.

Chapter VIII of Cr.P.C Speaks about security for kepping the peace and for good behavior.

Sections 106 to 124 have been coined to achieve the object of security for keeping peace and for good behavior. Section 116 is the provision to conduct inquiry as to the truth of information. Section 116(6) contemplates that the inquiry shall be completed within six months from the date of its commencement, if not so completed the same shall be terminiated automatically unless special reasons are recorded to continue the inquiry. This is also one of the restrictions contemplated under the code of criminal procedure for easy reference 116(6) Cr.P.C is extracted hereunder.

116. Inquiry as to truth of information-

(6).The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not yet completed, the proceeding under this chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing the Magistrate otherwise directs:

[Bhagaban Pradhan and others Vs Jayaram Mohanty and others] -

187. Sub Section (6) of Section 116 contains two fold legislative mandate i.e. (i) it determines the span of life of the proceedings under section 116 to be six months; and (ii) it lays down the consequence of non-compliance with its provisions. The use of expression shall on the expiry of the said period, stand terminated leaves no room for doubt that in the event of the enquiry not being completed within the prescribed period, the proceedings come to an end automatically and no order of the Magistrate is, at all, called for. Indeed, the Magistrate becomes functus officio and he is divested of the seisin of the case. He cannot revive the same unless, of course, he exericese the power vesting in him to continue the proceedings by recording special reasons therefor. On automatic termination of the enquiry by operation of law, the proceeding becomes non est for all intents and purposes and life cannot be instilled into it by the Magistrate. Sub-section (6) of Section 116 is a new provision as it has no correspondeing provision in the old Cr.P.C. It is aimed at safeguarding the interests of a person proceeded against under any one of the sections 107 to 110. However, the Magistrate may, for special reasons to be recorded in writing direct that the proceedings shall not so terminate. If no special reasons for the continuance of the proceedings are recorded in writing by the Magistrate, the proceedings shall stand terminiated on the expiry of the period of six months. The reasons must be special. The order extending the enquiry should state why the enquiry could not be completed within the normal period of six months. Apprehnesion of continuance of breach of peace during enquiry cannot be the sole ground for extension. Any order passed after the expiry of six months during which the enquiry had not been extended according to law, is illegal and without jurisdiction. After the expiry of six months from the commencement of enquiry, it comes to an end automatically. No formal order of termination is contemplated. Special reasons as contemplated under section 116(6) are something distinguishable from the normal or usual reasons which generally exist in such proceeding. Special reasons can be equated with something of extraordinary circumstance, quite distinguishable from the fact that there has been no co-operation by the parties or there has been lack of promptness on the part of the Magistrate in disposal of the case. The order of extension has to be passed before expiry of the period of six months. The Magistrate is empowered to extend the period of enquiry beyond a period of six months only prior to the termination of a period of six months and not subsequently. In other words, direction for continuance of proceedings must be issued before the expiry of the period of six months.

It is to be noted that immediate after the date of commencement of inquiry, the Executive Magistrate has to complete the inquiry within the period of six months. In order to extend the time there must be a special reason. According to the clear language coined in Section 116(6) Cr.P.C the time limit can be extended only on account of special reason and the period of limitation cannot be extended by the Executive Magistrate simply.

( Bar to take cognizance :

Section 468 Cr.P.C., specifies the period of limitation. For easy reference Section 468 Cr.P.C. is extracted hereunder.

468. Bar to taking cognizance after lapse of the period of limitation.

(1) 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.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only

1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974 ), s. 2 end Sch.

(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 term exceeding one year but not exceeding three years

(3) 1 For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]

The period of limitation shall be six months

(i) If the offence is punishable with fine only

(ii) One year if the offence is punishable with imprisonment for a term not exceeding one year

(iii) Three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years).

Chapter VIII Cr.P.C deals with security for keeping the peace and for good behavior. Sections 106 to 124 have been so arranged in chapter VIII Cr.P.C, among them section 106 speaks about the power of the criminal court at the time of recording conviction in certain offences and section 116 Cr.P.C speaks about the procedure to conduct inquiry as to the truth of information received by the Executive Magistrate.

The Executive Magistrate after having taken cognizance U/s. 107 to 110 Cr.P.C has to record evidence as contemplated U/s. 116 Cr.P.C.

If the proceedings under sections 107 to 110 is not so completed within a period of six months from the date of its commencement, the proceedings shall stand terminated on the very expiry of the six months, unless it has been extended by the Executive Magistrate on special reasons.

Hence, the total period of inquiry has been restricted to six months

“From the date of commencement” as found in Sec. 116 Cr.P.C means the first date fixed for the appearance of the parties to the proceedings U/s. 107 to 110 Cr.P.C. So, the period of six month will be from the first appearance of the parties and shall be terminated within six month. For early reference section 116 (6) Cr.P.C is extracted above.

What is the starting point for limitation U/s. 116(6) Cr.P.C

 [ Bhagaban Pradhan and others Vs. Jayaram Mohanty and others] –

“inquiry commences when the magistrate attempts in a legal way to put the allegations, to test for finding out whether they are the facts…..”

In the said decision itself, it has been decided that if the magistrate wants to extent the time limit of six month, the same can be extended within six months and not beyond the time.

“In other words direction for continuance of proceedings must be issued before the expiry of the period of six months”

Thus, it is made clear from the clear language contained in section 116 (6) Cr.P.C that the proceedings under chapter VIII shall stand terminated after the period of six month is over. This is also one of the restriction made in Cr.P.C.

In some minor acts also, there is a bar to take cognizance except upon sanction to prosecute. Hence the above points have to be borne in mind before opening the case, because some of the cases may fall within the above category.

1995 Cr l J 607