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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