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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.

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