Holding

Section 473 CrPC overrides Section 468, permitting cognizance of offences under Sections 498A and 494 IPC despite the limitation period, if the court is satisfied that condoning the delay is necessary in the interest of justice.

Summary

The appellant, a wife, complained that her husband subjected her to cruelty and later contracted a second marriage, invoking Sections 498A and 494 of the Indian Penal Code. The Andhra Pradesh High Court, applying Section 468 of the Criminal Procedure Code (CrPC), quashed the criminal proceedings on the ground that the limitation period had expired. On appeal, the Supreme Court examined whether Section 473 CrPC, an overriding provision, permits a court to take cognizance of such offences despite the limitation bar, especially when the delay can be justified in the interest of justice. The Court held that for offences involving cruelty against women and bigamy, the court may condone delay under Section 473, which supersedes Section 468, and that the nature of the offence and the victim’s circumstances warrant a liberal approach. Consequently, the High Court’s order was set aside and the magistrate was directed to proceed with the case.

Issues considered

Whether Section 468 CrPC bars cognizance of offences under Sections 498A and 494 IPC after the prescribed limitation period.
Whether Section 473 CrPC overrides Section 468 and allows the court to take cognizance despite the limitation, if justice requires.
Whether offences of cruelty and bigamy constitute continuing offences for the purpose of limitation.
Distinction between the condonation of delay under Section 5 of the Limitation Act and the court's duty under Section 473 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 4(18), s. 468, s. 473, s. 482
Indian Penal Code, 1860s. 494, s. 498A
Limitation Acts. 5

Subjects

Criminal Procedure CodeSection 473Section 468LimitationSection 498ASection 494Criminal lawBigamyCrueltyInterest of justiceMatrimonial offences

Judgment

Sl\IT. VANKA RADHAMANOHARI A
v.

VANKE VEN KATA REDDY AND ORS.

APRIL 20. 1993
B
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 c
<ffence <!l Sec1111d marn·age under Section 494 l.P.C.

Sn1io11 4/<.2 Criminal Procedure C(lde Applic.a1io11-Can 1/Je pro-
ceedings 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 m·er-riding
elfecr-£.\pfained.

Crimi11af Procedure Code 1973: Secrion 482-Quasl1i11g of pro-
ceedings 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~(
E

Ma.rim-Vigila111ihus. ii 11on-dormie11tibus, jura suh1·e11iu11i-
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. F

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 respon-
dent under Section 482 of Cr.P.C. <1uashed the Criminal Proceedings,
holdin~ that it was time harred s~nce after three ~·ears con~nizance
c~mnot he taken of' an offence under Section 498 A of the Penal Code,
H
287
SI 'l'REME C'Ol 'RT REPORTS [ l<J 1Jl] ~ 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's-
tion 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 473 has a 11011-
E obsta11te clause which.means that said section has an oYerridingeffect
on Section 46H~ if tht' court is satisfied on facts and in the dn·um-
stances or a parti'iular case. that either the dela~· has ht'en properly
explained or that it is nel·essar~· to do so in the interest of justice
(292-E-F)
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 relath·e 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 prm·isions 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 n
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.
D
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 cru-
elty. 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 349- referred 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.
H
:!90 St 'l'RH1E COl.'RT REPORTS

A 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
H

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 4 1)2 of the Code of Criminal Procedure
C (hereinafter referred to as "the Code··). quashing the criminal prm:eed-
ing 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.

G
4. The High Court on an application filed on behalf of the accused-
respondents 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
SMT. VENKA '"· V. V. REDDY [N. P. SINGH.J.) 291

during the period prior lo 1985. As such. in view of Section 468 of the A
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 n
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 c
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 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
F
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 con-
cerned. 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 H

l'
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 sp~cificiilly 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 I:
B .. entertain any appeal or application after the·prescrihed 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:--
c
"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
D
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 ex-
plained. 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

F
said Section 4 73 has a 11011 o/Jsta11te dause which means that said
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

~,
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 A
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 exami~e 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 B
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 c
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 D
maxim : vigilantibus, et non dormientibus, jura subveniunt (the vigi-
lant, and not the sleepy, are assisted by the laws). That maxim cannot
be applied in connection with offences relating to cruelty against
women.
E
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
F
in the statement and object, for introducing a period of limitation, as
well as by this court in th~case of State ofPunjab v. Sarwan Singh, AIR
1981 SC 1054. But, that consideration cannot be extended to matrimo-
nial 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 G
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

-I
294 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".

B 8. In the case of Bhagirath Kanoria v. State ofM.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 provi-
sion according to which notwithstanding anything
contained in r \provisions of chapter XXXVI of the
Code, any Co~ may take cognizance of an offence
D
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
E 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
F that in cases of this nature, Courts which are con-
fronted 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."

G 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 men-
tioned 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
t
SMT. VENKA v. V. V. REDDY [N. P. SINGH,J.) 295

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.