Code of Criminal Procedure Act, Sec 456 – time bar – difference between ‘filing reports’ and ‘prosecution’ – Sec 116 and 136 of the CCPA discussed
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF
Case No. CA (PHC) 51/2013
Malka Siriweera & another v. Officer-in-Charge, Special Crimes Division Branch, Police Station, Tangalle.
Before: K.K. Wickremasinghe J.
Janak De Silva J.
Decided on: 28.10.2019
Janak De Silva J.
This is an appeal against the the order dated 14.05.2013 made by the learned High Court Judge of the High Court of the Southern Province holden in Hambanthota.
The virtual complainant Pujitha Suraweera made a complaint to the SCIB of Tangalle Police on 03.10.2008 about a forged deed no. 5506 purportedly executed by his deceased mother in relation to ancestral property which belonged to all family members. The virtual complainant received knowledge of this deed about a week before the complaint as a result of an argument between the virtual complainant and the Accused-Petitioners-Appellants (Appellants) who are his sisters. The deed no. 5506 is dated 08.04.1989 whereas the mother of the virtual complainant died on 12.10.1988. After inquiry the sequence of events are as follows:
Facts were reported to Walasmulla Magistrate Court under section 115 of the Code of Criminal Procedure on 06.03.2009. Further reports were filed on 06.04.2009.
Appellants were arrested and produced before the Magistrate on 04.05.2009.
The Tangalle Police filed three charges against the Appellants on 12.10.2009 which included charges under sections 454, 457 and 459 of the Penal Code.
On 10.05.2010 when trial was taken up the Appellants raised a preliminary objection in terms of section 456 of the Code of Criminal Procedure that the charges preferred against them are time barred.
The learned Magistrate overruled the preliminary objection against which order the Appellants moved in revision to the High Court of the Southern Province holden in Hambanthota which application was dismissed and hence this appeal.
Section 456 of the Code of Criminal Procedure reads:
“The right of prosecution for murder or treason shall not be barred by any length of time, but the right of prosecution for any other crime or offence (save and except those as to which special provision is or shall be made by law) shall be barred by the lapse of twenty years from the time when the crime or offence shall have been committed.”
This section prescribes a time bar in relation to crimes and offences and is a statutory restriction on the common law principle nullum tempus occurrit regi (Time does not run against the King). This common law doctrine was originally expressed by Henry de Bracton in his “De Legibus et Consuetudinibus Angliae” (On the Laws and Customs of England) which was composed primarily before c. 1235.
In some jurisdictions the view has been taken that legal maxims must be taken into consideration before a Court arrives at a conclusion.
In Sarah Mathew v. Institute of Cardio Vascular Diseases & Ors. [2014(2) SCC 62] the Supreme Court of India held:
“As we have already noted in reaching this conclusion, light can be drawn from legal maxims. The object of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurrit regi, which means that a crime never dies”.
Recently, the Supreme Court of Canada in R. v. Jordan [2016 SCC 27] held:
“Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. They need not meet a further hurdle of being rare or entirely uncommon”.
The view has also been taken that since crime is a wrong against the State and society delay by itself should not be held against a prosecution by the State. In Japani Sahoo v. Chandra Sekhar Mohanty [AIR 2007 SC 2762] the Supreme Court of India held:
“It is settled law that a criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of Law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of Law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict.”
While such an approach may stand to good reason this approach must be understood in the context of the relevant statutory provisions.
Section 469 of the Code of Criminal Procedure of India (1973) reads:
“The period of limitation, in relation to an offender, shall commence –
on the date of the offence; or
where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.
In computing the said period, the day from which such period is to be computed shall be excluded.”
Furthermore, section 473 of the Code of Criminal Procedure Code of India (1973) provides for an extension of the period of limitation in certain cases and reads:
“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 is satisfied 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”
A similar approach is there in the French Code of Criminal Procedure which provides that the statute of limitations for the prosecution of hidden or concealed offenses starts running from the date on which the offense has been discovered and established in the conditions that allow public prosecution to be initiated and exercised. A hidden offense is defined in Article 9(1)(4) of the French Code of Criminal Procedure as an offense which, because of its constituent elements, cannot be known to the victim or to the judicial authority while a concealed offense is an offense of which the perpetrator deliberately performs any characteristic maneuver aimed at preventing its discovery as per Article 9(1)(5) therein.
However, in Sri Lanka there is a statutory bar without any such extension of time which this Court must take cognizance. The Court must also take cognizance that the limitation of time for crimes serves a dual purpose. On one hand the interest of the State and society as a whole and on the other the interest of the accused.
It is in the interest of the State and society as a whole that a prosecution should be launched and punishment exacted early as the retributive theory of punishment loses its edge after the expiry of a long period. The deterrence theory loses its practical utility if the prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of the person concerned. The time bar ensures that the organs of the State vested with the power and duty of criminal prosecution make every effort to ensure that detection and punishment of the crime expeditiously.
The interests of the accused are that he should not be kept under continuous apprehension that he may be prosecuted at any time particularly due to large number of laws creating offences where many persons commit some crime at some time. There is also the possibility that with passage of time the testimony of witnesses become weaker due to lapse of memory resulting in the evidence becoming uncertain and the danger of error increasing.
Therefore, Court must seek to interpret section 456 of the Code of Criminal Procedure bearing in mind that Article 13(3) of the Constitution guarantees to every person a fundamental right to a fair trial.
In interpreting section 456 of the Code of Criminal Procedure two issues arise, namely:
What is meant by “the right of prosecution”?
What is the time when the crime or offence was committed?