LIMITATION IN CRIMINAL LAW
By M. Karunanithi, B.Sc., B.L., Advocate,
Madurai Bench of Madras High Court
INTRODUCTION
By this article the author intended to combile all the provisions of code of criminal procedure relating to limit the powers of criminal court and 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 combilation for easy reference.
COGNIZANCE
Section 190 of code of criminal procedure defines cognizance of offences by the learned Judicial Magistrates, for easy reference and understanding section 190 Crl.P.C is extracted below :
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 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 maker 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 arrest of accused and their detention in custody it 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 is very clearly mandates that no police officer shall detain in custody a person more than 24 hours ,hence production of 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 prescribes in the procedure when investigation can not be completed in 24 hours and it empowers the learned Judicial Magistrates whether or not having jurisdiction can authorise 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.
Here, the power of the learned Judicial Magistrate has been restricted to 15 days.
Section 167(2) (a) (i) (ii) is very important provision in the code of criminal procedure this provision specifically restricts the power of the learned Judicial Magistrates in extending the remand of an accused after 90/60 days as the case may be, for easy reference section167(2)(a)(i)(ii) is extracted here under
(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 Magiatrate 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
(1) Babulal Vs state 1982 Crl.L.J1001;
(2) JaySankar jha vs state 1982 Crl.L.J 744 Cal(DB)
Whether cognizance can be taken after 6 months as mentioned u/s. 167(5) of Cr.P.C.
But section 167(5) 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 materials secured by investigation officer within the six months.
The law specifically mandates that in a summon 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 - (1993) 3 SCC 288 = 1993 SCC Crl. 815.
OFFENCES COMMITTED OUT SIDE INDIA
Section 188 Crl.P.C. defines that when an offence is committed outside the 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.
AIR 1993 SC 1637 = (1993)3 SCC 609 – 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 – AIR 2002 SC 2653.
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 amounts 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 – (1993)2 SCC 16.
The learned Judicial Magistrate can ignore the conclusion arrived at by the investigation office 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 things fit and exercise his power under Section 190(1) (b) Cr.P.C. – (2006)4 SCC 359 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 Judicial Magistrate.
Here, the learned Sessions Judge has been barred from taking cognizance.
Section 195 Cr.P.C., defines prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. As per Section 195(1) (a) Cr.P.C., no Court shall take cognizance of any offence punishable u/s. 172 to 188 IPC, of any abetment, attempt to commit such offence or any criminal conspiracy to commit such offence except on the complaint given in writing of the public servant concerned or some other public servant to whom he is administratively subordinate.
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. But if 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 Vs ----------
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 checked.
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.
It is an exception to the general rule that anybody can set the Criminal Law on motion.
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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.
Bar to take cognizance :
Section 468 Cr.P.C., specifies the period of limitation. 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 exceed one year
(iii) Three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
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.