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Report No. 42

24.21. Exclusion of first day.-

A few matters of detail may now be considered. First, as in civil cases,1 in computing the period of limitation for taking cognizance of an offence, the day from which such period is to be reckoned should be excluded. It may, in this connection, be noted that section 29, Limitation Act, 1963, (which applies the provisions of that Act to other laws), may not suffice to apply the corresponding provision (section 12) of that Act to prosecutions, as section 12 is confined to suits and applications. Though some judicial decisions regarding a complaint as an 'application,2 and so falling within section 29, Limitation Act, it is better to have a specific provision.

1. Cf. section 12(1), Limitation Act, 1963.

2. B.P. Thakur, AIR 1959 All 787; Sita Ram v. State, AIR 1961 All 151; Damodaran v. State of Kerala, (1961) 2 Cr LJ 102.

24.22. Infructuous proceedings.-

Secondly, as in civil cases,1 in computing the period of limitation for taking cognizance of offence, 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, should be excluded, where 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.

1. Section 14, Limitation Act, 1963.

24.23. Continuing offences.-

Thirdly, in the case of a continuing offence,1 a fresh period of limitation should begin to run at every moment of the time during which the offence continues;2 and we recommend the insertion of a provision to that effect.

1. As to continuing offence (with reference to section 106, Factories Act, 1948), see AIR 1966 Mys 136.

2. Cf section 22, Limitation Act, 1963.

24.24. Impediments to prosecution.-

Impediments to the institution of a prosecution have also to be provided for. Such impediments could be (a) legal, or (b) due to conduct of the accused, or (c) due to the court being closed on the last day.

As regards legal impediments, two aspects may be considered, first, the time for which institution of prosecution is stayed under a legal provision, and secondly, prosecutions for which previous sanction is required, or notice has to be given, under legal provision. Both are appropriate cases for a special provision for extending the period of limitation. We recommend that, where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, than, in computitig the period of limitation for taking cognizance of that offence, the time of the 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 excluced.1

1. Cf. section 15(1), Limitation Act, 1963.

24.25. Notice of prosecution.-

We also recommend1 that where notice of prosecution for an offence has been given, or where for prosecution for an offence the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, then in computing the period of limitation for taking cognizance of the offence, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction, shall be excluded.

1. Cf. section 15(2), Limitation Act, 1963.

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