Report No. 42
24.11. Case for extending limitation to original prosecutions.-
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.
24.12. Apart from the aforesaid considerations, for the purpose of peace and repose, it is very necessary that a person who has committed a minor crime should not be kept in continuous apprehension that he may be prosecuted at any time. Negligence or undue delay on the part of a private prosecutor should he severely discouraged. The reasons given by the Norwegian and German writers apply with equal force in India also. As one learned author, pointed1 out, "at one time or another approximately 91 per cent. of the adult population have committed, crimes and punishable with imprisonment.
If they have escaped conviction it is due partly to their good luck and partly to other circumstances." If the law gives them absolute immunity from prosecution after the lapse of a specified period they will have peace of mind; otherwise, the risk of their being prosecuted will remain and may be taken advantage of by blackmailers especially if their conduct after the commission of the offence has been exemplary. The modern view2 that the essential aim of punishment should be reformation and social rehabilitation of the offender can be better implemented by conferring absolute immunity from prosecution after the lapse of a certain period, instead of by requiring him to undergo the harassing process of prosecution and punishment.
1. James Brands, "Criminal Law in the Seventie.-Some Suggestions" (June 1970) New York State Bar Journal.
2. Article 10(3) of the International Covenant on Civil and Political Rights (1966).
24.13. Delay by itself no ground for dismissing complaint.-
At present no court can throw out a complaint solely on the ground of delay, because, as pointed out1 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.
1. Asstt. Customs Collector, Bombay v. L.R. Melwani, AIR 1970 SC 962 (964).
24.14. Recommendation to introduce principle of limitation.-
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.
24.15. Limitation to be graded.-
As regards the period of limitation, we propose that it should be graded according to the maximum punishment for the offence, as follows.-
(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; and
(c) three years, if the offence is punishable with imprisonment for a term not exceeding three years.
24.16. Starting poin.-possible alternatives.-
As regards the question what should be the starting point for computing limitation, three possible alternatives could be thought of, namely, (i) date of commission of the offence; (ii) date of discovery or knowledge that the offence has been committed, whether the offender be known or not; and (iii) date of discovery or knowledge that the offence has been committed by a particular offender.
24.17. Alternatives considere.-(i) commission of offence.-
On the analogy of the law of limitation for civil suits, alternative (i) above may strike one as the natural choice, but there is an important difference to be noted in regard to criminal prosecutions. In a civil wrong, only the person wronged is actively interested in pursuing his claim, and the wrong-doer is known. In the case of a crime, the victim is not necessarily interested in instituting a criminal prosecution; and even if he is interested, the offender is, more often than not, unknown, the person really harmed by an offence may not for some time come to know that an offence has been committed. Sometimes, there may be no 'victim' as such, as in the case of public nuisance sale of obscene publications, rioting, mischief to public property, etc. Practical considerations, therefore, compel one to reject the first alternative.
24.18. (ii) Discovery of offence.-
The second alternative is more attractive. In some of the special laws (e.g. section 106 of the Factories Act) the date of discovery or knowledge of the offence has been taken as the starting point of limitation. In England also, in some statutes, the starting point for the purpose of limitation is the date of the discovery of the offence and not the date of commission of the offence, e.g., section 164(4) of the Factories Act, 1961, section 20(2) of the Dangerous Drugs Act, 1965, section 244 of the Road Traffic Act, 19601 and section 24(3) of the Pharmacy and Poisons Act, 1933.2
There are, however, practical difficulties in making the date of knowledge of the commission of the offence the starting point for all offences. So far as cognizable offences are concerned, an information can be lodged before the police by the aggrieved party against an unknown offender, it being left to the police to investigate and find out his identity. But in respect of non-cognizable offences which are generally initiated by filing complaints before Magistrates, no prosecution will ordinarily be initiated unless the complainant gives the name or other identifying marks of the offender. Perhaps, on a strict construction of section 190(1), read with section 200, Cr. P.C., an aggrieved party may be entitled to file a complaint against a person unknown leaving it to the court by due investigation or enquiry under section 202 to find out the identity of the offender.
But in practice such a complaint is likely to be dismissed with a direction to the complaint to find out the name of the offender and then move the court. Hence, if the date of the knowledge of the commission of the offence be taken as the starting point of limitation for all minor offences, time may run against the aggrieved party through no fault of his, and by the time he comes to know the identity of the offender the period of limitation might have expired.
1. Summary proceedings for certain offences under the Road Traffic Act may be brought within a period of six months from the date of the commission of the alleged offence or within a period which exceeds neither three months from the date on which it came to the knowledge of the prosecutor that the offence has been committed, or one year from date of the commission of the offence, whichever period is longer.
2. Summary proceedings for an offence under this Act may commence within 12 months of the commission of the offence or, in the case of proceedings instituted by or by the direction of a Secretary of State, either within that period or within three months next after the date on which the evidence justifying, in the opinion of the Secretary of State, a prosecution comes to his knowledge.
24.19. (iii) Knowledge of offender's identity to be the starting point.-
We, therefore, consider that the starting point for the purpose of limitation should be the date on which knowledge of the identity of the offender was known either to the aggrieved party, or to the officer, investigating the offence. However, if a special law provides a different starting point that will prevail over the general law to be provided in the Penal Code.
24.20. Prosecution commences when court takes cognizance.-
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 Court1 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 of 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.
1. Dau Dayal v. State of Uttar Ptadesh, AIR 1959 SC 433: 1959 (Supp) 1 SCR 639.