Section 468 of Cr.P.C & bar in launching criminal
prosecution
There
are various enactments defining law and stipulating the procedure. The claim or
lis has to have certain finite period for seeking its commencement. No claim or
institution of that could wait till perpetuity. The Law of Limitation has
therefore been enacted and Limitation act 1963 is in place. In civil law, the
law of limitation has pervasive applicability. The law of limitation has though,
limited applicability in criminal law. In a welfare society combating crime is
the primary object of a state and therefore if fetter is attached to it as
regards limitation, then, that may have deleterious effect in society and
therefore, there is no prohibition or period of limitation prescribed in
substantive criminal offence, prescribing terms of imprisonment for more than
Three (3) years. However, in offences where the terms of imprisonment qua the offence
is Three (3) years or less, Section 468 of Code of Criminal Procedure ( In
short Cr.PC) shall come in play and limitation is prescribed therein. The
object being that petty criminal complaints should not be allowed to continue
for long burdening the time and space of authorities and timely action is
contemplated.
The
provision of section 468 of Cr.P.C may be perused before analyzing the issue
further. The same are reproduced as under:
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
(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) 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 Section 468 of
Cr.P.C may have to be read in conjunction with Section 469 of Cr.P.C , if true
import of the section are to be ascertained. The provision as contained in
Section 469 are as under:
“469.
Commencement of the period of limitation. - (1) The period of limitation, in
relation to an offender, shall commence, -
(a) on the date of the offence; or
(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; or
(c)
where it is not known by whom the offence was 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, whichever is
earlier.
(2)
In computing the said period, the day from which such period is to be computed
shall be excluded.”
Section 473 of Cr.P.C
is also of some relevance in the context. This is due to the fact that certain
exceptions are carved out to the Sections as narrated above. The same is as
under:
“473.
Extension of period of limitation in
certain cases. – 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 is satisfied 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
It
however should be emphasized here that Section 468 of Cr.P.C shall have no
applicability to certain economic offences as that shall be governed by the Economic Offences (Inapplicability of
Limitation) Act, 1974.
The Section 468 of Cr.P.C was recently tested on
the touchstone of law by hon’ble Karnataka High Court in a matter captioned as Sri
karan Menon vs State of Karnataka Circle Inspector of Police Cyber Crime,
Bangalore and Crl Petition No. 9334 of 2018. The Karnataka High Court has
quashed the F.I.R for the offences punishable under Section 43A, 67, 66D, 66E,
67A of the Information Technology Act, 2000 (for short ‘the IT Act’) and under
Section 354(D) of Indian Penal Code (IPC).
It was held that offences were punishable with
imprisonment for three years and with fine and the final report was not filed
by the police even after lapse of more than five years from the date of alleged
incident. The cognizance thus cannot be taken by the learned Magistrate after
three years from the date of offences as specified under Section 468 (2) (c) of
the Cr.P.C.
Exceptions
to Section 468 of Cr.P.C
There are seven exceptions
in the Cr.P.C as regards the applicability of
Section 468 of Cr.P.C. The same is as under:
(i)
Section 84(1),
(ii)
Section
96(1),
(iii)
198(6),
(iv)
199(5),
(v)
378(5),
(vi)
457(2) and
(vii)
the proviso to Section 125(3).
It is worthy of noting that in all these provisions, the period of limitation has expressly been provided. The very recitation of the
sections are different from the tenor of Section 468 of Cr.P.C. What is of
significance in this context is that these seven exceptions show that the
intent behind Section 468 of Cr.P.C is limitation
for taking cognizance and not for the purpose of filing complaints.
The exception appears to have been carved out for the reason that
prosecution should not end up doing persecution, more particularly in minor and
petty offences which could be disposed off speedily.
The Law Commission’s 42nd Report has succinctly reflected the very
rational for introduction of limitation in Cr.P.C.
In Sarah Mathew vs Inst., Cardio Vascular Diseases & .Ors bearing no. CRIMINAL APPEAL NO.829 OF 2005, the question that was framed by the hon’ble Supreme Court was as under:
“Whether for the purposes of computing the period of limitation under Section 468 of the Cr.P.C the relevant date is the date of filing of the complaint or the date of institution of prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence”?
In
State of Punjab Vs Sarwan Singh AIR 1981
SC 1054 the Supreme Court has defined the object of Cr.P.C in
putting a bar of limitation as follows:
“The
object of the Code of Criminal Procedure 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.”
In para no. 19 of Sarah Mathew (Supra) the hon’ble Supreme Court has observed
as under:
“…….It is true that the accused has a right to have a speedy trial and this right is a facet of Article 21 of the Constitution. Chapter XXXVI of the Cr. P.C does not undermine this right of the accused. While it encourages diligence by providing for limitation it does not want all prosecutions to be thrown overboard on the ground of delay. It strikes a balance between the interest of the complainant and the interest of the accused. It must be mentioned here that where the legislature wanted to treat certain offences differently, it provided for limitation in the section itself, for instance, Section 198(6) and 199(5) of the Cr.P.C. However, it chose to make general provisions for limitation for certain types of offences for the first time and incorporated them in Chapter XXXVI of the Cr.P.C”.
According to the Supreme Court in Sara Mathew (Supra) case the gist of
these provisions could now be stated. Section 467 defines the phrase
‘period of limitation’ to mean the period specified in Section 468 for
taking cognizance of certain offences. Section 468 stipulates the bar
of limitation. Sub-section (1) of Section 468 makes it clear that a
fetter is put on the court’s power to take cognizance of an offence of the
category mentioned in sub-section (2) after the expiry of period of limitation.
Sub-section (2) lays down the period of limitation for certain offences.
Section 469 contains provision as regard when the period of limitation
commences. It is dexterously drafted so as to prevent advantage of bar of
limitation being taken by the accused. It states that period of limitation in
relation to an offence shall commence either from the date of offence or from
the date when the offence is detected. Section 470 of Cr.P.C provides
for exclusion of time in certain cases. It inter alia states that while
computing the period of limitation in relation to an offence, time taken during
which the case was being diligently prosecuted in another court or in appeal or
in revision against the offender, should be excluded. The explanation to this
section states that in computing limitation, the time required for obtaining
the consent or sanction of the government or any other authority should be
excluded. Similarly time during which the accused is absconding or is absent
from India shall also be excluded. Section 471 provides for exclusion
of date on which court is closed and Section 472 provides for
continuing offence. Section 473 is an overriding provision which
enables courts to condone delay where such delay has been properly explained or
where the interest of justice demands extension of period of limitation.
Analysis of these provisions indicates that Chapter XXXVI is a Code by itself
so far as limitation is concerned. All the provisions of this Chapter will have
to be read cumulatively. Sections 468 and 469 will have to be
read with Section 473.
The
Supreme Court has thus concluded in the following terms:
“Having considered the questions which
arise in this reference in light of legislative intent, authoritative
pronouncements of this Court and established legal principles, we are of the
opinion that Krishna Pillai will have to be restricted to its own facts and it
is not the authority for deciding the question as to what is the relevant date
for the purpose of computing the period of limitation under Section 468 of the Cr.P.C., primarily
because in that case, this Court was dealing with Section 9 of the Child
Marriage Restraint Act, 1929 which is a special Act. It specifically stated
that no court shall take cognizance of any offence under the said Act after the
expiry of one year from the date on which offence is alleged to have been
committed. There is no reference either to Section 468 or Section
473 of the Cr.P.C. in that judgment. It does not refer to Sections 4
and 5 of the Cr.P.C. which carve out exceptions for Special Acts. This Court has not adverted to diverse aspects including the
aspect that inaction on the part of the court in taking cognizance within
limitation, though the complaint is filed within time may work great injustice
on the complainant. Moreover, reliance placed on Antulay ‘1984’ Case, in our
opinion, was not apt. In Antulay ‘1984’ Case, this Court was dealing inter alia
with the contention that a private complaint is not maintainable in the court
of Special Judge set-up under Section 6 of the Criminal Law Amendment
Act, 1952 (‘the 1952 Act’). It was urged that the object underlying the 1952
Act was to provide for a more speedy trial of offences of corruption by a
public servant. It was argued that if it is assumed that a private complaint is
maintainable then before taking cognizance, a Special Judge will have to
examine the complainant and all the witnesses as per Section 200 of
the Cr.P.C. He will have to postpone issue of process against the accused and
either inquire into the case himself or direct an investigation to be made by a
police officer and in cases under the Prevention of Corruption Act, 1947
by police officers of designated rank for the purpose of deciding whether or
not there is sufficient ground for proceeding. It was submitted that this would
thwart the object of the 1952 Act which is to provide for a speedy trial. This
contention was rejected by this Court holding that it is not a condition
precedent to the issue of process that the court of necessity must hold the
inquiry as envisaged by Section 202 of the Cr.P.C. or direct
investigation as therein contemplated. That is matter of discretion of the
court. Thus, the questions which arise in this reference were not involved in
Antulay ‘1984’ Case: Since there, this Court was not dealing with the question
of bar of limitation reflected in Section 468 of the Cr.P.C. at all, in
our opinion, the said judgment could not have been usefully referred to in
Krishna Pillai while construing provisions of Chapter XXXVI of the Cr.P.C For
all these, we are unable to endorse the view taken in Krishna Pillai.”
CONCLUSION
The
Supreme Court has succinctly dealt with the provision of Section 468 of Cr.P.C
in various judgments and the issue now appears to have been settled. It was
thus held that for the purpose of computing the period of limitation
under Section 468 of the Cr.P.C, the relevant date is the date of filing
of the complaint or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance. It was further held that Bharat
Damodar Kale Vs State of Andhra
Pradesh (2003) 8 SCC 559 case which is followed in Japani Sahoo Vs Chandra
Shekhar Mohanty (2007) 7 SCC 394 lays down the correct law. Another judgment captioned
as Krishna
Pillai Vs TA Rajendran & Anr
1990 Supp SCC 121 will have to be restricted to its own facts and it is not
the authority for deciding the question as to what is the relevant date for the
purpose of computing the period of limitation under Section 468 of
the Cr.P.C.
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Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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