Radhamanohari Vs. Vanke Venkata Reddy & Ors  INSC 146 (20 April 1990)
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.
of Section 468 Criminal Procedure Code for an offence of Second marriage under
Section 494 I.P.C.
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.
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.
it non-dormientibus, jura subveniunt- Applicability of-In cases of matrimonial
Offences like cruelty.
difference between the limitation under Section 473 and Section 5 of the
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.
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
the Appeal, the Court,
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)
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 prescribed there is only upto three years. (291-F)
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)
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
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.
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
Bliagirathi Kanoria v. State of M.P. AIR 1984 SC 1688= 1 SCR 626 referred to.
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=
 3 SCR 349- referred to, (309-B)
APPELLATE JURISDICTION : Criminal Appeal No. 339 of 1993.
the Judgment and order dated 27.4.1992 of the Andhra Pradesh High Court in Crl.
Petition No. 6 of 1992.
Nath Bahu for Anip Sachthey for the Appellant.
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.
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
the criminal proceeding which had been initiated against the
accused-respondents has been questioned in this appeal.
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
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.
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 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.
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 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:
et non dormientibus, jura subveniunt (the vigilant, and not the sleepy, are
assisted by the laws).
maxim cannot be applied in connection with offences relating to cruelty against
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".
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:
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 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.
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.
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
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.
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.
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.