Sl\IT. V ANKA RADHAMANOHARI

VANKE VEN KATA REDDY AND ORS.

APRIL 20. 1993

f KlJLDIP SINGH AND N.P. SIN<; H, JJ.f

Criminul Procedure Cnde 1973 : Secrh111s 4M<. 473- Li111ita1h111--ApplicaNfity of-Ma1rh11011ial <)flences like cruelly, hy l1ttsha11d and 111e111hers n.f 1/re .fa111ily-U11der Secthlll 49RA <I( l.P. C.

Application rf Section 468 Criminal Procedure Code for an <ffence <!l Sec1111d marnage under Section 494 l.P.C.

Sn1io11 4/<.2 Criminal Procedure C(lde Applic.a1io11-Can 1/Je proceedings he/ore /Hag is/rare he quasliedfordefay hy Hig/J Cour1--U11der Sec1io11 4(18 (Ir wliet/Jer Sec/ion 473 la he opplied in tlu! i111eres1 of j11.\1ice-Tl1e 11011 ohs1a111e clause <if Sec1io11 473 and irs mer-riding

elfecr-£.\pfained.

Crimi11af Procedure Code 1973: Secrion 482-Quasl1i11g of proceedings hej(1re Magisrrare hy tile Hig/J Court-No cogni:ance <f offence under Sec lion 498A l.P. C. ajier e.\piry rf rliree vears-\lafidity

r~(

Ma.rim-Vigila111ihus. ii 11on-dormie11tibus, jura suh1e11iu11i- Appfical1ifi1y rf-ln ca.l'es 1f11wrri111011ial <Jf{e11ces like cruelly.

Hosie dUference herween t/Je limitarion under Sec1ion 473 and

Sec1io11 5 of Ille Limitation Act-£.\plained.

A complaint petition was tiled hefore the l\.lugistrate h~· the Appellant that she was ill-treated and suhjected to cruelty b~· hushand

- the accused respondent, and her in-laws, and that during the suhsistance of their marriage he married again and got a second wife.

The High Court on an application tiled h~· the accused respondent under Section 482 of Cr.P.C. <1uashed the Criminal Proceedings,

holdin~ that it was time harred snce after three ears connizance

cmnot he taken of' an offence under Section 498 A of the Penal Code,

SI 'l'REME C'Ol 'RT REPORTS [ l<J1Jl] S.< '.R

A in , iew of the Section 468 of the Criminal 1•rocedure Code.

Allowing the Appeal, the Court,

HELi>: 1. In , iew of tht' allt'gation that complainant was heing U subjected to cruelty hy the respondt'nt the High Court should haYe

held that it was in the interest of justice to take congnizance e\en of the offence under Section 49HA of the Penal Code ignoring the har of Section 46H of the Cr.P.C. (295-Cl

2. In , iew of tht' allegation of Secon~ marriai.:e during the c continuance of the first marriage. prime-fll<:ie an offence under

St'ction 494 of the Penal Code which is punishable h~· imprisonment for a term which ma~· t'Xtt'nd to se\en years and when the same was disdosed in the complaint hefore the l\lagistrate, tht're was no qut'stion of Sedion 46H of the Pemtl Code heing applicahle since the

I> imprisonment prescribed there is onl~· upto thrt'e years. (291-F)

3. In , iewofSection 473oftheCr.P.C. acourtcan takecongnizance of an offence e\en after the period prescrihed under Section 4Mt. if the court is satisfied on the facts and circumstances of the cast'. that it is

necessary so to do in the interest of justice. Section 47 3 has a 11011obsta11te clause which.means that said section has an oYerridingeffect on Section 46H~ if tht' court is satisfied on facts and in the dnumstances or a parti'iular case. that either the dela~· has ht'en properly explained or that it is nelessar~· to do so in the interest of justice

(292-E-F)

4. ft is only as a hist resort that a wife open!~· comes hefore a court to unfold and relate the day-to-day: torture and cruelty faced hy her inside the house,. which many of such , ictims do not like to he made

public. As such courts while considering the ttuestion of limitation for <; an offence under Section 49H A i.e. suhjecting a "'.omen to cruelty h~·

her hushund or the relathe of her husband, should judge that question in the light of Section 473 of the CrJ•.c.which ret1uires the Court, not only to examine as to whether the delay has heen properl~· explained, hut as to whether "It is necessary to do so in the interest of .Justice" (,293-H, 294-A) H

S!\H. YENKA .-. Y. Y. REDDY

2X9

S. l\lan~· courts are treating prmisions ofSections4<18 and 473 of A tlie code as prO\"isions parallel to the period of limitation proYided under the limitation Act and power of condonation of dela~· under Section 5 of the Limitation Act. But there isa hasic difference hetween 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 satist)· the 'court that there was sufficient cause for condonation of the dela~·, whereas Section 473 enjoins a dut~· on the court to examine not onI~· whether such dela_y has heen explained hut as to whether it is the rettuirement of justice to condone or ignore such delay. As such, where\er the har of section 468 is applicahle, the court

has to apply its mind on the question, whether it is necessar~· to c . . condone such dela~· in the interest of justice. (292-G-H)

Hliagiratl1i Kanoria v. Stllte of M.f'. AIR 1984 SC

lo88=1l985l l SCR <126 - referred to.

6. The general rule of Limitation is hased on the maxim l'i1:ila11tilm:..-, et mm dormie11tih11s, jura .rnh11e11i1111t (the , igilant and not the sleepy, are assisted hy the laws). Hut this maxim cannot he applied in connection with offence relating to cruelty against women.

(293-U)

' E

7. The ohject of the har of limitation under Section 468 has heen explained in the statement and ohject for introducing a period of limitation and also hy this court. hut the same consideration cannot he extended .to matrimonial offences, where the allegations are of cruelty. torture and assault by the husband or other memhers of the F famil_y to the complainant. (293-F)

State of Punjab v. Sarwan Singh. AIR 1981SC1054= f1981] 3 SCR 349referred to. (309-B)

CRIMINAL APPEL~ATE .JURISDICTION: Criminal Appeal No. 339 of 1993.

From the Judgment and order dated 27.4.1992 of the Andhra Pradesh High Court in Cr!. Petition No. 6 of 1992.

:!90 St 'l'RH1E COl.'RT REPORTS

Radri Nath Bahu for Anip Sachthey for the Appellalll.

T.Y.S.R. KrishnaSastry, VishnuMathur(NP) andG. J>rahhakar, for the Respondents.

The .Judgment of thl! court was delivered hy

N.P. SINGH . .J I . Leave granted.

2. The validity of an order passed hy the I Jigh Court. in exercise nf the power under Section 41)2 of the Code of Criminal Procedure C (hereinafter referred to as "the Code·). quashing the criminal prm:eeding which had heen initiated against the accused-respondents. has heen questioned in this appeal.

3. The appeJJanl filed a petition of complaint against her hushand, D. accused-respomJcnt No. I (.hcrcinafterrefercd to as "the respondent").

alleging that she was married to the sail:! 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 als() made an a1:cuscd. she was heing maltreated and even abused hy the accused persons including her husband. She further alkged that E her hushand often used to heal her and had been insisting cha• she

. should. get another sum of Rs. I 0,000/- from her parents for his husincss. 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 F First Information R1.:por1, hut when no action was taken hy the police, the compaint aforesaid was being filed in the year 1990. The learned Magistrate took cognizance of the offences under Sections 498A and 494 of the Penal Code against the accused persons.

4. The High Court on an application filed on behalf of the accusedrespondents under Section 482 or the cf>de, 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 hy the complainant. she had left the matrimonial house H in the year 1985 and. as such, she must have been subjected to nuelty

during the period prior lo 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 4.5.1990 has been . mentiimed as the date of the second marriage whereas in the statement recorded on solenm affirmation the appellant has stated that he had married in the year I 986. According to the learned Judge, as section 498A prescrihes the punishment up Lo three years imprisonment only. the petition of complaint should have been filed within three years from the year 1985 in viewofsection468ofthe code. Nothing has bee.n said in the order of the High Court, so far the offence under section 4<f4 is concerned. for which the period of imprisonment pn:si::ribed is up to seven years. There cannot he any dispute that in view of the allegatiop regarding the second marriage by the respondent during the contim)- ance of the ffrst marriage, prim a facia an offence under Section 494 ¥ the Penal Code. was disclosed in the complaint and there was o 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 the action for prosecution was always considered to be a relevanl factor whil.e judging the truth of the prosecution story. But, then a cou~ could n?t

throw oul a complaint or a police report soley on the ground of delay.

The Code introduced a separate chapter prescribing limitations fqr taking congnizance of certain offences. It was felt that as time passes the testimony witnesses becomes weaker 11nd weaker hecause of 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 Sl.'PRE:\H: COi 'RT REPORTS

119931 S.C.R.

accruing in connection with civil dispute is ccrncerned, unda Section 3 of. the limitation Act. it has heen spcificiilly said that .subject tu the provisions contained in Sections 4. to 24 eve;:ry suit

.instituted. appeal preferred and an application. made after the

prescr'ihed period shall bl! dismissed, allhough limitation has nut been set up as a ddenct:. Section 5 of that Act enables :my court to B .. entertain any appeal or application after theprescrihed period. if the

appellant or the applicant satisfies the court that he had ·sufficient cmsl! for not pre faring the app\.:al or making the application within such pcri(ld". So far Section 473 ofthe code is concerned. the scope

. of that Sl!ctiun is diffen.:nt. Section 473 of the Code provides:--

"E.rte11sio11 of period of limitation in certain cases.

- Notwithstanding anything contained in the fort:-· going prrnvisions of this Chapt!.!r, any court may take c(ignizance 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 ht:en properly explained or that it is necessary so to do in the interests ofjustic..:."

In view of Section 473 a court can take cognizance of an E offence not only when it is satisfied on the facts and in the circu1i1stances of the C[tse that the delay has been properly explained. hut even in ahsence of proper explanaltion if the Coun is satisfied that it is nec.:::ssary so to do in the interests of justice. The said Section 4 73 has a 11011 o/Jsta11te dause which means that said F Section has an owrriding effect on Section 468. if the coun is satisfied cm the facts and in the c.:ircumst:m.cl!s of a particular case. that either the delay has hccn 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 Com1s 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 .. nd 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 hctween Section 5 of the limitation H Act and Section 473 of the Code. For exercise of power under

I: ·,

SMT. VENKA v. V. V. REDDY [N. P. SINGH,1.] 293

Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the court that there was sufficicent cause for condonation of the delay, whereas Section 473 enjoins a duty on the court to examie 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 4 73 of the code is to be exercised in the interests of justice, then while considering the grievance by a .lady, of torture, cruelty and inhuman 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 oflimitation 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 oflimitation 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 thcase 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 oflimitation for an offence

SUPREME COURT REPORTS

[1993] 3 S.C.R.

A 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 oflimitation prescribed by Section 468 was not applicable, still referred to Section 473 of the C 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 r \provisions of chapter XXXVI of the Code, any Co~ may take cognizance of an offence after the expiry of the period oflimitation 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 appeliants 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. Corning 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 crueity, details whereof were mentioned in the complaint aforesaid. She further stated that on 4.5.1990 H he has married again, deserting the appellant. In view of the allegation

.. \

10. In the result the appeal is allowed. The order passed by the High Court is set aside. The learned Magistrate is directed to proceed with the case in accordance with law as expeditiously as possible.

lt.S.K.

Appeal allowed.