Full Judgment Text
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PETITIONER:
SMT. VANKA RADHAMANOHARI
Vs.
RESPONDENT:
VANKE VENKATA REDDY AND ORS.
DATE OF JUDGMENT20/04/1990
BENCH:
ACT:
Criminal Procedure Code 1973 : Sections 468. 473--
Limitation-Applicability of-Matrimonial Offences like
cruelty, by husband and members of the family-Under Section
498A of I.P.C.
Application of Section 468 Criminal Procedure Code for an
offence of Second marriage under Section 494 I.P.C.
Section 482 Criminal Procedure Code Application-Can the pro-
ceedings before Magistrate be quashed for delay by High
Court-Under Section 468 or whether Section 473 to be applied
in the interest of justice-The non obstante clause of
Section 473 and its over-riding effect-Explained.
Criminal Procedure Code 1973: Section 482-Quashing of pro-
ceedings before Magistrate by the High Court-No cognizance
of offence Section 498A I.P.C after expiry of three years-
Validity of.
Maxim-Vigilantibus. it non-dormientibus, jura subveniunt-
Applicability of-In cases of matrimonial Offences like
cruelty.
Basic difference between the limitation under Section 473
and Section 5 of the Limitation Act-Explained.
HEADNOTE:
A complaint petition was filed before the Magistrate by the
Appellant that she was ill-treated and subjected to cruelty
by husband the accused respondent. and her in-laws, and that
during the subsistence of their marriage he married again
and got a second, wife.
The High Court on an application filed by the accused
respondent under Section 482 of Cr.P.C.quashed the Criminal
Proceedings, holding that it was time barred since after
three years cognizance cannot be taken of an offence under
Section 498 A of the Penal Code,
2188
in view of the Section 468 of the Criminal procedure Code.
Allowing the Appeal, the Court,
HELD 1.In view of the allegation that complainant was as
being subjected to cruelty by the respondent the High Court
should have held that it was in the Interest of justice to
take cognizance even of he offence under Section 498A of the
penal Code ignoring the bar of section 468 of the Cr.P.C.
(295-C)
2.In view of the allegation of Second marriage during the
continuance of the first marriage, prime-facie an offence
under section 494 of the penal Code which is punishable by
imprisonment for a term which may extend to seven years and
then the some was disclosed in the complaint before the
Magistrate, there was no question of Section 468 of the
Penal Code being applicable since the imprisonment
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prescribed there is only upto three years. (291-F)
3.In view of Section473 of the Cr.P.C.a court can take
cognizance of an offence even after the period prescribed
under Section 468. if the court is satisfied on the facts
and circumstances of the case. that it is necessary so to do
in the interest of justice. Section 473 has a non-obstante
clause which means that said section has an over riding
effect on Section 468. if the court is satisfied on facts
and in the circumstances of a particular case. that either
the delay has been properly explained or that It is
necessary to do so in the interest of justice (292-E-F)
4.It is only as a last resort that a wife openly comes
before a court to unfold and relate the day-to-day torture
and cruelty faced by her inside the house, which many, of
such victims do not like to he made public. As such courts
while considering the question of limitation for an offence
under Section 498 A i.e. subjecting a women to cruelty by
her husband or the relative of her husband, should judge
that question in the light of Section 473 (if the
Cr.1l.C.which requires the Court, not only to examine as to
whether the delay has been property explained, but as to
whether "it is necessary to do so in the interest of
Justice" (293-H, 294-A)
289
5.Many courts are treating provisions of Sections 468 and
473 of the code as provisions parallel to the period of
limitation provided under the limitation Act and power of
condonation of delay under Section 5 of the Limitation Act.
But there is a basic difference between Section 5 of
Limitation Act and Section 473 of the Code. For exercise of
powers under Section 5 of the Limitation Act, the onus is on
the applicant to satisfy the court that there was sufficient
cause for condonation of the delay, whereas Section 473 en
joins a duty on the court to examine not only. whether such
delay has, been explained but as to whether it is the
requirement of justice to condone or Ignore such delay. As
such, wherever the bar of section 468 is applicable,the
court has to apply its mind on the question, whether it is
necessary to condone such delay in the interest of.justice.
(292-G-H)
Bliagirathi Kanoria v. State of M.P. AIR 1984 SC 1688=[1985]
1 SCR 626 referred to.
6.The general rule of Limitation is based on the maxim
vigilantibus, et non dormientibus, jura subveniunt (the
vigilant and not the sleepy, are assisted by the laws). But
this maxim cannot be applied In connection with offence
relating to cruelty against women. (293-1))
7.The object of the bar of limitation under Section 468
has been explained in the statement and object for
introducing a period of limitation and also by this court
but the same consideration cannot he extended to matrimonial
offences, where the allegations are of cruelty, torture and
assault by the husband or other members of the family to the
complainant. (293-F)
State of Punjab v. Sarwan Singh, AIR 1981 SC 1054= [1981] 3
SCR 349- referred to, (309-B)
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 339 of
1993.
From the Judgment and order dated 27.4.1992 of the Andhra
Pradesh High Court in Crl. Petition No. 6 of 1992.
290
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Badri Nath Bahu for Anip Sachthey for the Appellant.
T.V.S.R. Krishna Sastry, Vishnu Mathur(NP) and G. Prahhakar,
for the Respondents,
The Judgment of the court was delivered by
N.P. SINGH. J. leave granted.
2.The validity of an order passed by the High Court, in
exercise of the power under Section 492 of the Code of
criminal procedure hereinafter referred to as "the Code").
quashing the criminal proceeding which had been initiated
against the accused-respondents has been questioned in this
appeal.
3. The appellant filed a petition of complaint against her
husband, accused respondent No. 1 (hereinafter
referred to as "the respondent") alleging that she was
married to the said respondent and an amount of Rs. 5,000/-
along with gold ring and wrist watch, was given to him on
the eve of the marriage. Later at the instance of her
mother-in-law, who was also in made an accused. she was
being maltreated and even abused by the accused persons
including her husband. She further alleged that her
husband often used to beat her and had been insisting that
she should get another sum of Rs. 10,000/- from her parents
for his business. Ultimately the respondent married again
and got a second wife. The other accused persons have
actively associated themselves with the second marriage. It
was stated that earlier she had lodged a First
Information Report. but when no action was taken by the
police, the complaint aforesaid was being filed in the year
19(X). 7Me learned Magistrate took cognizance of ’the
offences under Sections 498A and 404 of the Penal Code
against the accused persons.
4. The High Court on an application filed on behalf of the
accused respondents under Section 482 of the code, quashed
the said criminal proceeding saying that after expiry of the
period of three years, no Cognizance for an offence under
Section 498 A of the Penal code could have been taken. The
high Court has pointed out that according to the statement
made by the complainant, she had left the matrimonial house
in the year 1985 and, as such, she must have been subjected
to cruelty
291
during the period prior to 1985. As such, in view of
Section 468 of the Code, no cognizance for an offence under
Section 498 A could have been taken in the year 1990. The
high court has also pointed out that there was discrepancy
in respect of the date of Second marriage of respondent,
inasmuch as in the petition of complaint 4.5.1900 has been
mentioned as the date of the second marriage whereas in the
statement recorded on solemn affirmation the appellant has
stated that he had married in the year 1986. According to
the learned Judge, as section 498A prescribes the punishment
up to three years imprisonment only, the petition of
complaint should have been filed within three years from the
year 1985 in view of section 468 of the code. Nothing- has
been said in the order of the High Court, so far the offence
under section 494 is concerned, for which the period of
imprisonment prescribed is up to seven years. There cannot
he any dispute that in view of the allegation regarding the
second marriage by the respondent during the contiance of
the first marriage, prima facia an offence under Section 494
of the Penal Code was disclosed in the complaint and there
was question of Section 468 of the Code being applicable to
an offence under Section 494 of the Penal Code.
5.Earlier there was no period of limitation for launching
a prosecution against the accused. But delay in initiating
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the action for prosecution was always considered to be a
relevant factor while judging the truth of the prosecution
story. But. then a court could not throw out a complaint or
a police report soley on the ground of delay. The Code
introduced a separate chapter prescribing limitations for
taking cognizance of certain offences. It was felt that as
time passes the testimony witnesses becomes weaker and
weaker because of lapse of memory and the deterrent effect
of punishment is impaired. if prosecution was not launched
and punishment was not inflicted before the offence had been
wiped off from the memory of persons concerned. With the
aforesaid object in view Section 468 of the code prescribed
six months, one year and three years limitation respectively
for offences punishable with fine, punishable with
imprisonment for a term not exceeding one year and
punishable with imprisonment for a term exceeding one year
but not exceeding three years. The framers of the Code were
quite conscious of the fact that in respect of criminal
offences, provisions regarding limitation cannot be
prescribed at par with the provisions in respect of civil
disputes. So far cause of action
292
accruing in connection with civil dispute is concerned,
under Section 3 of the limitation Act, it has been
specifically said that Subject to the provisions contained
in Sections 4 to 24 every suit instituted. appeal preferred
and an application made after the prescribed period shall be
dismissed, although limitation has not been Set Lip as a
defence. Section 5 of that Act enables any Court to
entertain any appeal or application after the prescribed
period. if the appellant or the applicant satisfies the
court that he had "sufficient cause for not preferring the
appeal or making the application within such period". So
far Section 473 of the code is concerned. the scope of that
Section is different. Section 473 of the (’ode provides:-
"Extension of period of limitation in certain
Cases. Notwithstanding anything_contained in
the foregoing provision 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 tile delay has
been properly explained or that it is
necessary so to do in the interests of
justice."
In view of Section 473 a court can take cognizance of an
offence not only when it is satisfied on the facts and in
the circumstances of the case that the delay has been
properly explained, hut even in absence of proper
explanation it the Court is satisfied that it is necessary
so to do in the interests of justice. The said Section 473
has a non obstante clause which means that said Section
has an overriding effect on Section 468. if the court is
satisfied on the facts and in the circumstances of a
particular case. that either the delay has been properly
explained or that it is necessary to do so in the interests
of justice.
6.At times it has come to our notice that many Courts are
treating the provisions of Section 468 and Section 473 of
the Code as provisions parallel to the periods of limitation
provided in the limitation Act and the requirement of
satisfying the court that there was sufficient cause for
condonation of delay under Section 5 of that Act. There is
a basic difference between Section 5 of the limitation Act
and Section 473 of the Code. For exercise of power under
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293
Section 5 of the Limitation Act, the onus is on the
appellant or the applicant to satisfy the court that there
was sufficient cause for condonation of the delay, whereas
Section 473 enjoins a duty on the court to examine not only
whether such delay has been explained but as to whether it
is the requirement of the justice to condone or ignore such
delay. As such, whenever the bar of Section 468 is
applicable, the court has to apply its mind on the question,
whether it is necessary to condone such delay in the
interest of justice. while examining the question as to
whether it is necessary to condone the delay in the interest
of justice, the court has to take note of the nature of
offence, the class to which the victim belongs, including
the background of the victim. If the power under Section
473 of the code is to be exercised in the interests of
justice, then while considering the grievance by a .lady, of
torture, cruelty and in human treatment, by the husband and
the relatives of the husband, the interest of justice
requires a deeper examination of such grievances, instead of
applying the rule of limitation and saying that with lapse
of time the cause of action itself has come to an end. The
general rule of limitation is based on the Latin maxim:
vigilantibus, et non dormientibus, jura subveniunt (the
vigilant, and not the sleepy, are assisted by the laws).
That maxim cannot be applied in connection with offences
relating to cruelty against women.
7.It is true that the object of introducing Section 468
was to put a bar of limitation on prosecutions and to
prevent the parties from filing cases after a long time, as
it was thought proper that after a long lapse of time,
launching of prosecution may be vexatious, because by that
time even the evidence may disappear. This aspect has been
mentioned in the statement and object, for introducing a
period of limitation, as well as by this court in the case
of State of punjab v. Sarwan Singh, AIR 1981 SC 1054. But,
that consideration cannot be extended to matrimonial
offences, where the allegations are of cruelty, torture and
assault by the husband or other members of the family to the
complainant. It is a matter of common experience that
victim is subjected to such cruelty repeatedly and it is
more or less like a continuing offence. It is only as a
last resort that a wife openly comes before a Court to
unfold and relate the day to day torture and cruelty faced
by her, inside the house, which many of such victims do not
like to be made public. As such Courts while considering
the question of limitation for an offence
294
under Section 498 A i.e. subjecting a woman to cruelty by
her husband or the relative of her husband, should judge
that question, in the light of Section 473 of the Code,
which requires the court, not only to examine as to whether
the delay has been properly explained, but as to whether "it
is necessary to do so in the interest of Justice".
8.In the case of Bhagirath Kanoria v. State of M. P. AIR
1984 SC 1688, this court even after having held that non-
payment of the employer’s contribution to the Provident Fund
before the due date, was a continuing offence, and as such
the period of limitation prescribed by Section 468 was not
applicable, still referred to Section 473 of the Code. In
respect of Section 473 it was said:
"That section is in the nature of an
overriding provision according to which
notwithstanding anything contained in the
provisions of chapter XXXVI of the Code, any
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Court may take cognizance of an offence after
the expiry of the period of limitation if,
inter alia, it is satisfied that it is
necessary to do so in the interest of justice.
The hair-splitting argument as to whether the
offence alleged against the appellants is of a
continuing or non-continuing nature, could
have been averted by holding that, considering
the object and purpose of the Act, the learned
Magistrate ought to take cognizance of the
offence after the expiry of the period of
limitation, if any such period is applicable,
because the interest of justice so requires.
We believe that in cases of this nature,
Courts which are confronted with provisions
which lay down a rule of limitation governing
prosecutions, will give due weight and
consideration to the provisions contained in
S.473 of the Code."
9.Coming to the facts of the present case, the- appellant is
admittedly the wife of the respondent. She filed the
petition of complaint in the year 1990, alleging that she
was married to the respondent, who subjected her to cruelty,
details whereof were mentioned in the complaint aforesaid.
She further stated that on 4.5.1990 he has married again,
deserting the appellant. In view of the allegation
295
regarding second marriage, an offence under Section 494 of
the Penal Code was also disclosed which is punishable by
imprisonment for a tern which may extend to seven years.
The High Court taking into consideration Section 468, has
come to the conclusion that the complaint in respect of the
offence under Section 498 A which prescribes imprisonment
for a term up to three years, was barred by time. Nothing
has been said by the High Court in respect of the offence
under Section 494 of the Penal Code, to which Section 468 of
the Code is not applicable, the punishment being for a term
extending up to seven years. Even in respect of allegation
regarding an offence under Section 498A of the Penal Code,
it appears that the attention of the High Court was not
drawn to Section 473 of the Code. In view of the allegation
that the complainant was being subjected to cruelty by the
respondent, the High Court should have held that it was in
the interest of justice to take cognizance even of the
offence under Section 498 A ignoring the bar of Section 468.
543