Report No. 42

Chapter 24

Time Limits for Prosecutions

24.1. Time limits for prosecutions.-

It now remains to consider a subject which, though procedural, is usually dealt with in the Code of substantive criminal law in many countries, namely, the time limit for initiating prosecutions.

24.2. Opinions received on the subject.-

In our Questionnaire, we had included the following question.-

"Do you consider that there should be a statutory period of limitation for prosecution for any offence under the Code, and, if so, for what offences?"

A majority of the replies received on this question is against prescribing a period of limitation for prosecution. Of the smaller number in favour of introducing the law of limitation in criminal cases, a few are for prescribing a time-limit for all or almost all offences, and others only for comparatively minor offences.

24.3. Reasons for time limits in civil cases.-

In civil cases, the law of limitation in almost all countries where the rule of law prevails, Jurists have given several convincing reasons to justify the provision of such a law; some of those which are equally applicable to criminal prosecutions may be referred to here.-

(1) The defendant ought not to be called on to resist a claim when "evidence has been lost, memories have faded, and witnesses have disappeared.1"

(2) The law of limitation is also a means of suppressing fraud, and perjury, and quickening diligence and preventing oppression.

(3) It is in the general public interest that there should be an end to litigation. The statute of limitation is a statute of repose.

(4) A party who is insensible to the value of civil remedies and who does not assert his own claim with promptitude has little or no right to require the aid of the state in enforcing it.

(5) The court should be relieved of the burden of adjudicating inconsequential or tenuous claims.

1. R.R. Telegraphers v. Railway Express Agency, (1944) 321 US 342 (349).

24.4. Applicability of above reasons to criminal law.-

Theoretically, all the aforesaid reasons apply with equal force in the field of criminal law. Evidence is as much likely to become stale in criminal cases as in civil cases. Memory, if it fades, would fade irrespective of the nature of the proceeding, subject to the qualification that a serious criminal injury perpetrated on a victim may remain fixed in his memory for a very long time.

24.5. Reasons for not extending limitation to criminal prosecutions.-

The usual reasons given for not extending the law of limitation to criminal cases are that, in a criminal prosecution, apart from the injured party and the offender, the community as a whole has an interest in the detection and punishment of the offender, and this interest maybe defected if the mere expiry of time is allowed to operate as a bar to prosecution. Moreover, in a civil case there is always a victim with an active personal interest in seeking his remedy, and the wrong-doer is generally known; but in many criminal cases the wrong-doer may not be known or else may be untraceable due to his absconding or for other reasons.

24.6. Position in India generally.-

In India, following the English model, there is no general law of limitation for prosecutions. But, in some of the special and local laws, a period of limitation has been prescribed; e.g., section 106 of the Factories Act, 1948, and section 122 of the Army Act. 1950.

24.7. Position in other countries where penal law codified.-

In most of the countries where penal law has been codified, it is generally found that there is a law of limitation, not only for initiating prosecutions, but also for execution of sentences passed by the courts. Among the foreign Penal Codes we have been able to look into, such rules are to be found in the Codes1 of Argentina, Austria, Ceylon, Colombia, France, Germany, Japan, Norway, Russia and Yugoslavia.

1. Argentine Penal Code, Article 62; Austrian Penal Code (1852), republished in 1945, as amended upto 1965, Chapter 27, sections 227 and 228; Ceylon Code of Criminal Procedure, s. 444; Colombian Penal Code, 1936, Article 105; French Code of Criminal Procedure 1958, Articles 6, 763-767; German Draft Penal Code, 1962, Articles 127 and 131: German Penal Code, 1871, Articles 61, 67 and 70; Japanese Draft Penal Code, 1961, Articles 100 and 104; Norwegian Penal Code, 1902, ss. 67 and 72; Russian Soviet Federated Socialist Republic (RSFSR) Criminal Code, 1958, Articles 48 and 49; Yugoslavia Criminal Code, Articles 80 and 81.

24.8. Position in countries following the Anglo Saxon legal system.-

In countries where the Anglo-saxon system of jurisprudence prevails, though there is no general law of limitation for crimes, nevertheless, for certain classes of offences, limitation has been prescribed. For example, in England there is a time limit of three years for treason or misprision of treason,1 except where there is a plot to assassinate the sovereign or treason committed abroad. There is a general limit of six months for trial by Magistrates of summary offences,2 but this rule is subject to several exceptions. Then, there is a time limit of 12 months for the offence of unlawful sexual intercourse with a girl above the age of 13 and below the age of 16.3 Similar provisions exist for these offences in some Australian States.4

We note that the Law Commission of England has proposed for consideration the general question of limitation in criminal proceedings and included it in working paper5 for eliciting opinion.

The Model Penal Code6 of the American Law Institute proposes a period of limitation for all offences except murder.

1. Sections 5 and 6, Treason Act, 1695, and Treason Act, 1708 (Eng.).

2. Section 104, Magistrates' Courts Act, 1952 (Eng.).

3. Sexual Offences Act, 1956, section 37, and 2nd Schedule, Part I, No. 10(a).

4. E.g. section 212, Queensland Criminal Code.

5. Working Paper on General Principles of Codification of Criminal Law, Subject No. 5, P. 15.

6. Section 1.06.

24.9. View of Dr. Andenaes.-

The distinguished Norwegian Jurist,1 Johannes Andenaes, has given the following special reasons why there should be a law of limitation for crimes also.-

"The factor of proof:

As time passes, evidence becomes more and more uncertain, and the danger of error therefore greater. This is true whether the claim stems from the penal law or from the civil law. Some evidence is lost, other evidence becomes unreliable. Thus testimony of witnesses can" change character completely because of changes in recollection or a mere lapse of memory. By setting a definite time limit, the law avoids basing decisions on a weak foundation.

The factor of prevention:

In the civil law we often refer to a preventive purpose as a reason for limitation; the owner of a right should not let things remain unsettled; there must be some pressure on him to have the matter cleared up within a reasonable time. The same argument can be made with respect to limitation of the private right to prosecute. And, theoretically similar reasons can also be advanced with respect to the ordinary limitation in the penal law; there should be some pressure on the public prosecution to clear up matters within a certain time. However, no great weight can be given to this argument. There are other methods to prevent delays on the part of the public prosecution; there are methods more direct than relieving the offender of criminal liability.

The need for.punishment diminished:

What is more important is that the need for punishment diminishes as time passes. This is especially clear from the individual preventive point of view. If the guilty party has kept peace for a number of years, it would be contrary to any and all purposes to punish him now and if he has been guilty of new offences, he can be punished for those. Nor do the consideration of general prevention or the demands for retribution apply with the same force as the years go by. Time heals all wounds.

Both the victim and the public calm down after a while, at least "with respect to less serious offences. It is important for the authority of the penal law, of course, that the guilty person does not escape punishment, but what is at least equally important in this respect is that the matter is cleared up and the guilty party brought to court while the offence is still rather fresh. A prosecution many years later does not have the same beneficial effect.

The opposite considerations become stronger:

On the other hand, the opposite considerations become stronger as time moves on. For the guilty party, who perhaps has overcome his criminal inclinations and has ceased to think of punishment, it would seem harsh to be held liable after many years have gone by. And it would also be harsh to his wife and children who may have no knowledge about this part of his past.

The Penal Law Commission said, a criminal investigation after perhaps fifty years, even with respect to the most serious crime, would have no real benefit but rather would cause sorrow and unhappiness to the innocent and the guilty alike."

1. Andenaes, The General Part of the Criminal Law of Norway, pp. 308-314.

24.10. View of German writers.-

Two German writers have, in an article1 discussing war crimes, explained the object of the principle of limitation, in terms of the result of an inactive judicial process on the crime and the removal of the crime from social consciousness. "The term is set when, through the passage of time.-juridically the length of the interval is made to depend upon the gravity of the crime.-the injuries inflicted upon the community by the crime are healed and the act itself has ceased to imperil the life of the community and the rule of law, by force of a bad example left unpunished; the conditions too must be ripe for the removal of a particular crime from the consciousness of men, so that they are no longer preoccupied with it Consequently, prescription is not only and simply a one-sided waiver of prosecution by society and the State, and still less the juridical expression of an unprincipled indifference.

Basically, it is rather a special form of suppression of crime, reflected and shaped by the law from the principle that the organs of criminal prosecution must make every effort within their powers to ensure the detection and punishment of crimes committed. To illustrate, according to the law in force in the Federal Republic (of Germany) prescription does not operate if there is a general suspension of the judicial process; under the Code of Criminal Procedure, Article 44, no time-limits operate in such a case and the previous position is re-instated.

From this it is obvious that time cannot of itself and without certain presumptions be taken to have healed the wound inflicted on the community by the crime; So Article II, s. 5, of law No. 10 of the Allied Control Council directed that in Germany, an individual charged with a grave crime committed in the period between January 30, 1933 and July 1, 1945, could not invoke the rule of prescription, even though there had during this period been a suspension of the judicial process in respect of such crimes.

Again since the length of periods of prescription is determined by the gravity of crimes committed, and the extent of the effect necessary to secure fair and effective prosecution, the longest period of twenty years is fixed by the Penal Code, Article 67(1), for the most serious crimes. But even this period is not absolute: on the contrary the running of time for the purpose of prescription is broken and starts afresh with every judicial process, which is initiated against an offender in respect of a crime committed by him, and which may, by reason of the gravity of the offence, be repeated and removed without restriction."

1. Paper presented by Dr. Lekschas, Dean of the Law Faculty of Humboldt University of East Berlin, and Dr. Renneberg, translated in (1965) 14 International and Comparative Law Quarterly, pp. 627, 629.

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