Nirma University

Institute of Law 

IV Semester B.A.LL.B. (Hons.)Course 

Limitation of Taking Cognizance of

Crime under CrPC

Prepared & Submitted By Submitted To

Archit Bohra (09BAL069) Mrs. Kanchan Samtani

Saumitra Chaturvedi(09BAL071) Asst. Prof. (Criminal Law)

Introduction

Government not empowered to allow institution of prosecution after statutory

period of limitation – chapter XXXVI of the code which adumbrates the
provisions for period of limitation regarding the taking of cognizance of an
offence nowhere vests the government with the power to allow institution of
prosecution after expiry of the statutory period of limitation 1.

1
Delhi Bitumen Sales Agency, New Delhi v. State of Punjab, 1989 Cri LJ 722 at 724 (P & H).
 1. Limitation for taking cognizance – Sub-section (3) of the section 468 of CrPC
which was added by the Code of Criminal Procedure (Amendment) Act, 1978,
provides that in relation to offences which may be tried together, the punishable
with the more or most severe punishment. The language of sub-section (3) of
Section 468 is in respect of the offence charged and not in respect of the offence of
the offence finally proved. This being the position, in the case in hand, when the
respondents were charged under section 468 CrPC read with section 120-B of IPC ,
for which the imposable punishment is seven years and Section 5(2) of old
prevention of corruption act, 1947 which is punishable with imprisonment for a
term which may extend to seven years and for such offences no period of limitation
having been provided for in section 468, CrPC, the cognizance taken by the special
judge cannot be said to be barred by limitation2.

2. Limitation – Non-applicability of – The provisions of sub section (5) of section 167

do not override the provisions of section 468. The limitation under 167(5) has no
concern with the filing of charge sheet. The magistrate should not refuse to take
cognizance of the offence as the basis of the charge sheet simply because the
investigation was not complete within the stipulated period of six months 3.

3. Limitation period – computation of- the limitation prescribed under section 468 is
to be read with reference to the date of cognizance or issuance of process 4.
in case of prosecution under sections 7, 19 and 16 (1) of the seeds act, 1966 the
period of limitation starts running from the day of the seed analyst submits his
report to seed inspector5.

There could be a case where the complaint is filed on the last date of limitation and
on account of the inconvenience or otherwise of the court sworn statement of the
complaint could be recorded only on a later date and the magistrate took cognizance
after the expiry of limitation. If the date of taking cognizance is taken the date to
determine the period of limitation that would amount to penalizing the party for no
fault of his. Such a construction cannot be placed under section 468 of the code. A
2
State of H.P. v. Tara Dutt, AIR 2000 SC 297 : (2000) 1 SCC 230
3
Public Prosecutor, High court of A.P., Hyderabad v. Sagam Pratap Reddy, 1988 Cri LJ 1057 (AP).
4
Basavantappa Basappa Bannithalli v. Shankarappa Mariagallappa Bannihalli, 1990 Cri LJ 360 at 362
5
R.S. Arora v. State, 1987 Cri LJ 1215 (Del.)
 construction possible in the circumstances is that the bar under section 468 of the
code from taking cognizance will operate only when the complaint is barred by
limitation6.

4. Limitation – relates to primae facie offence – the limitation under section 468
and the following section of the code relates to an offence which is primae facie
made out and not to an offence which is ultimately to be found to have been
committed7.

5. Limitation – time taken for obtaining order- to be excluded – the expression

“order” in section 52 to be readed at par with the word “sanction” under section
470(3) of the criminal procedure code. While computing the period of limitation for
initiating prosecution with regard to an offence under section 49 of the Act of 1948,
punishable with fine only the time taken for obtaining the order under section 52
has to be excluded8.

6. Limitation period for taking cognizance of offence - there was defalcation of

government revenue by accused during 1991 to 1995. Initial offence detected in the
year 1991 itself. Accused was reminded at a regular interval to deposit revenue. Last
reminder was given on 13.6.1996. Limitation period could, have at best been
stretched till 1996. FIR ought to have been lodged on or before 12.6.1999. Impugned
order taking cognizance was liable to be set aside as there was no satisfactory
explanation given for not filing complaint for next 9 years. It was a case of gross
negligence and laches9.

7. Exclusion of time in certain cases:---

(1) In computing the period of limitation, 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, shall be excluded:
Provided that no such exclusion shall be made unless 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.

6
Zain Sait v. Intex Painter, 1993 Cri LJ 2213 (Ker.)
7
Devratan v. State of Haryana, 1989 Cri LJ 1044 at 1045 (P & H)
8
George Thomas v. State of kerala, 1987 Cri LJ 1311 (Ker.)
9
K. Vikheho Sema v. State of Nagaland, 2007 Cri LJ 4266 (GAU) (Kohima Bench)
 (2) Where the institution of the prosecution in respect of an offence has been stayed by
an injunction or order, then, in computing the period of limitation, the period 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 excluded.
(3) Where notice of prosecution for an offence been given, or where, under any law for
the time being, in force, the previous consent or sanction of the Government or any
other authority is required for the institution of any prosecution for an offence, then,
in computing the period of limitation, the period of such notice or, as the case be, the
time required for obtaining such consent or sanction shall be excluded.

Explanation:- In computing the time required for obtaining the consent or sanction
of the Government or any other authority, the date on which the application was
made for obtaining the consent or sanction and the date of receipt of the order of the
Government or other authority shall both be excluded.

In computing the period of limitation, the time during which the offender,-
(a) has been absent from India or from any territory outside India which is under
the administration of the Central Government, or
(b) has avoided arrest by absconding or concealing himself, shall be excluded.

8. Where the period of limitation expires on a day when the court is closed, the
court may take cognizance on the day on which the courts reopen.

Explanation - A court shall be deemed to be closed on any day within the meaning of this
section, if, during its normal working hours, it remains closed on that day

9. In the case of continuing offence, a fresh period of limitation shall begin to run
at every moment of the time during which the offence continues.

Explanation- “Continuous offence” has not been defined in the code because it is not
having a fix connotation or static but a continuous offence is one which is susceptible of
continuance and is distinguishable from one which is committed once and for all. 10

It is one of those offences which arise out of a failure to obey or comply with the rule or its
requirement and which involves a penalty, the liability for which continues offence until
the rule or its requirement is obeyed or complied with 11.

Some of the example for this continues offence are been cited as following-
10
Indian Die C.C.P Ltd. V. State,1988 (3) crimes,536,538(Cal-DB)
11
M.R Joseph v. Jones Menzes,2004 Cr.L.J,2291(2294)(kant)
Offence under Sec-498A,IPC- when sec.498A is brought to use in the case of cruelty on
women, the law of limitation is not that rigid so as to non-suit the aggrieved wife. In offence
under 498A the last act of cruelty would be starting point of limitation. 12Offence under S.
498A, IPC is continuing offence13 .

Offence under Ss-29 and 32of Industrial Dispute Act,1947 – An offence for breach of
provisions of section 29 read with Sec32 of industrial dispute Act,1947,is an continuing
offence within the meaning of sec472,Cr.P.C.14

Non Continuing Offence; Dowry prohibition Act.- The offence of non-return of articles of
dowry is complete when the specified period expires and therefore not a continuing
offence under Ss 6(1)(b) and 7(b)of dowry Prohibition Act,1961. 15

10. 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 satisfy 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.

Scope- Sec468 bars a court from taking cognizance of any offence if it is beyond the
prescribed period limitation laid down under sub s(2) of that section; this section,
however, however ,lays down two exception.(1) if proper and satisfactory explanation of
the delay forthcoming, or (2) it is in the interest of justice , the court can take cognizance
even beyond the period fixed by S.468(2).Power to condole delay is discretionally judicial
discretion can be exercised only when the reason for condoling the delay is sufficiently
explained and to do substantial justice. As because delay cannot be condoled sufficiently
reasons that is why it is the duty of the magistrate to state expressly the grounds by which
he satisfied that delay is properly explained or how he came to the conclusion to condole
the delay in the interest of justice.16

12
Ramesh v. State of tamil Nadu,2005(1)Crimes366(370)
13
Indubala(Smt) v. State of UP,2003(4)Crimes 391(392)(All)
14
In re: DibyendraNAth Ray,2002(2)Crimes 365(367) Cal
15
Gursharansingh v. GursharanAkur, 1990 CrLJ 2469 (del)
16
State of Maharashtra v. Sharad Chandra VinayakDongre,(1955)1SCC 42.
This section is in the nature of an expression of S.468.Condonation of delay should take
place before cognizance of the offence is taken, in view of the opening non-obstante clause
in this section, it will prevail over all other provisions in XXXVI with regard to limitation
including S.468.17

11.Pre-cognizance exercise of power-There is no scope for condonation of delay

after taking cognizance of the offence. Such delay has to be condoned in accordance
with the provisions of the code, prior to the taking of the cognizance of the offence.
Taking cognizance of an offence without deciding the question of limitation is
without jurisdiction. Condonation of the delay under this provision shall precede
taking of cognizance of offence. Satisfaction for the purpose of extending the period
of limitation must be arrived at before taking cognizance. 18Taking cognizance
beyond the limitation period without condoning the delay is bad and without
jurisdiction.

These are some of the stances where this Section has been examined from different
types of laws.

12. Speaking order-where the court take cognizance after the expiry of limitation in
the interest of justice, the discretion exercised must be by a speaking order
indicating the satisfaction of the court that the delay was satisfactorily explained
and the condonation of the same was in the interest of justice. 19

13. Serious charge-where the charge is that the cutting of the trees has done without
licence and therefore, the charge is by nature serious and the delay is only of 6 days,
the exercise of the powers conferred on the court to condone the delay is justified. 20

14. Issues of process do not amount to condonation to delay- Merely because

process was issued it cannot be said that delay was condoned.

17
Shankerlalbhargeva v State of UP,1985(1)Crimes 265,268(All)
18
Krishna Sanghi v. state of MP,1977Cr.L,J90(MP)
19
State of HP v. taradutt, AIR 2000SC 297
20
sadaYessuDessai v. range forest officer,1988(3) Crimes740(Bom)
Several notices to save limitation- several notices issued under S.46 of the Tamil Nadu
General Sales Tax Act, 1956 in order to save limitation are not permitted as only one notice
can be taken into account for the purpose of this section. 21

Revision- If the discretion is condoning delay has been exercised properly,RevisionCourt

would not interfere.22if the order condoning delay is not based on proper ground,
Revisional Court would interfere.

21
Bhaskaran v. State,1990 CrLJ2260(Mad)
22
Ramesh Chandra Sinha v State of Bihar,(2003) 7 SCC 254