Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

Continuing offence involves an offence committed over a prolonged period which constitutes a fresh offence every time or occasion on which it continues. Continuing offence has not clearly been defined in the Code of Criminal Procedure ("C.r.P.C.") but its scope has been established in multiple judgements. This article intends to explore the scope of continuing offence and the concept of limitation period through various sections and case laws.

  1. Ingredients of a continuing offence

To prove continuing offence, one needs to prove that the offence started from the time of commission and continued till the person had their liberty restored. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.1 An example of continuing offence would be a case of domestic violence. A domestic violence case is prolonged and can occur over a large period of time, and the offence would commence from the very initiation of the crime for the first time and it will end when the person will have their liberty restored. As mentioned in section 472 of C.r.P.C., in a continuing offence, a fresh period of limitation begins to run at every moment of time during which the offence continues.2 This is because the cause of action is arising at every moment while the offence is happening.

  1. Limitation period of a continuing offence

Limitation period is the period within which the charges for an offence must be initiated after the commission of an offence. This was incorporated into the C.r.P.C. to ensure that the credibility of witnesses remains and to prevent unnecessary harassment of the accused (given that accused is presumed to be innocent until proven otherwise beyond reasonable doubt). Section 4683 deals with the period of limitation and it lays down the following:

Criteria Limitation Period
Offence is punishable with fine only. Six months
Offence is punishable with imprisonment for a term not exceeding one year. One year
Offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Three year

Section 472 and 4734 was added to the C.r.P.C. to ensure that incase the limitation period of an offence expires, the time available for the aggrieved party to acquire justice did not get reduced. In cases where it is proved that a continuing offence has been committed, the limitation prescribed by section 468 of Code cannot have any application. The offence which is alleged against the appellants will be governed by section 472 of the Code, according to which, a fresh period of limitation begins to run at every moment of the time during which the offence continues.5

  1. In the case of State Of Bihar vs Deokaran Nenshi (1973), the Court held that a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.6 The case was related to Section 667 of the Mines Act, 1952 but the Court held that Section 66 was not a continuing offence.
  2. The Bhagirath Kanoria & Ors. Etc vs State Of M.P. & Ors.(1984)8was a case related to the Employees Provident Funds and Miscellaneous Provisions Act, 1952. The Supreme Court in reference to continuing offences said that the concept of 'continuing offence' did not wipe out the original guilt but kept it alive day by day.
  3. The case of V.K. Jain vs. Union of India (2016)9 related to the Industrial Disputes Act, 1947 it was challenged that cognizance of offence could not be done as it was barred by limitation. But the court held that the offence so committed was 'continuing' in nature.
  1. Application
  1. Criminal Conspiracy
    A criminal conspiracy is described under section 120A of the IPC as an agreement through which two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.10 In a criminal conspiracy, the agreement does not end with its making, but would endure till it is accomplished or abandoned or proved abortive. A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. 11
  2. Domestic Violence
    The domestic violence qualifies under continuing offences as they are usually these cases are prolonged over a long period of time. For the protection of the victim it is essential that the limitation starts from the last date that the victim faced abuse. Offences under the IPC like battery, assault and cruelty covered under section 35012, section 35113 and section 49814 respectively are involved in cases of domestic violence and they come under the umbrella of continuing offences. In case of Omprakash Devanand Shukla v. Sau. Aruna Omprakash Shukla (2021), the learned counsel for the husband relied upon the provisions of Domestic Violence Act, particularly Sections 2815 and 3116 thereof, read with Section 468 of the Cr.P.C to claim that the complaint was barred by limitation. The court relied on Krishna Bhattacharjee v. Sarathi Choudhury and another (2016)17 and Inderjit Singh Grewal v. State of Punjab18 and thereupon it was found that while considering complaints under the Domestic Violence Act, the concept of continuing cause of action needs to be applied. In the said case, a contention regarding limitation was raised in the backdrop of prayer of the aggrieved person (wife) for return of Stridhan. The Hon'ble Supreme Court after relying upon earlier judgments, held that a continuing offence is one which is susceptible of continuance and is distinguishable from one which is committed once and for all. It was found that retention of Stridhan by the husband and his family members was a continuing offence, so long as it was covered under the expression of "economic abuse" as defined under Section 319 of the Domestic Violence Act, pertaining definition of "Domestic Violence". On this basis, it was held that the complaint filed by the wife could not be thrown out on the ground of limitation, by applying Section 468 of the Cr.P.C.
  1. Conclusion

Continuing offence has nowhere been defined in the statutes but courts have attempted to give a basic idea of what constitutes as a continuing offence. By placing certain offences like that of domestic violence under the umbrella of continuing offence, it becomes easier for women to come forward even on a later date to report the abuse. Continuing offence can be applied to various areas of law and it is applied in cases that are criminal in nature. The diverse application of the concept of continuing offence if proof that there is a further need of guidelines dealing with offences of such nature.

Footnotes

1. Bhagirath Kanoria & Ors. Etc vs State Of M.P., Appeals Nos. 407-418 of 1979.

2. Code of Criminal Procedure, §472, No.2, Act of the Imperial Legislative Council of India, 1974 (India).

3. Code of Criminal Procedure, §468, No.2, Act of the Imperial Legislative Council of India, 1974 (India).

4. Code of Criminal Procedure, §473, No.2, Act of the Imperial Legislative Council of India, 1974 (India).

5. Bhagirath Kanoria & Ors. Etc vs State Of M.P., Appeals Nos. 407-418 of 1979.

6. State Of Bihar vs Deokaran Nenshi, (1973) AIR 908.

7. The Mines Act, §66, No.35, Act of the Imperial Legislative Council of India, 1952 (India).

8. Bhagirath Kanoria & Ors. Etc vs State Of M.P. & Ors. (1984) AIR 1688.

9. V.K. Jain vs. Union of India, (2000) 1 SCC 709.

10. Indian Penal Code, §120A, No.454, Act of the Imperial Legislative Council of India, 1860 (India).

11. Ajay Agarwal vs Union of India and Ors, (1993) AIR 1637.

12. Indian Penal Code, §350, No.454, Act of the Imperial Legislative Council of India, 1860 (India).

13. Indian Penal Code, §351, No.454, Act of the Imperial Legislative Council of India, 1860 (India).

14. Indian Penal Code, §498, No.454, Act of the Imperial Legislative Council of India, 1860 (India).

15. The Protection of Women from Domestic Violence Act, §28, No.43, Act of the Imperial Legislative Council of India, 2005 (India).

16. The Protection of Women from Domestic Violence Act, §31, No.43, Act of the Imperial Legislative Council of India, 2005 (India).

17. Krishna Bhattacharjee v. Sarathi Choudhury and another, (2016) 2 SCC 705.

18. Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588.

19. The Protection of Women from Domestic Violence Act, §3, No.43, Act of the Imperial Legislative Council of India, 2005 (India).

By
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@vaishlaw.com
Mobile No.: +91 9810081079
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