SECTION 473 OF THE CODE
The provisions of Section 473 of the Code may be considered from two angles-one substantive and the other procedural. On the substantive aspect it will be useful to compare and contrast the language of two analogus provisions in Section 5 of the Limitation Act, 1963 and that of the proviso to Section 142(a) of the Negotiable Instruments Act, 1881 which came into force on and from the 6th of February, 2003. The key clause in Section 473 of the Code that is “or that it is necessary so to do in the interests of justice” is entirely absent in the provisions of Section 5 of the Limitation Act, 1963 and in the proviso to Section 142 (a) of the N.I. Act. Under Section 5 of the Limitation Act, 1963 it is the appellant or the applicant who has to satisfy the Court about the existence of sufficient cause for the delay. Similarly under proviso to Section 142(a) of the N.I. Act is the complainant who has to satisfy the court about existence of sufficient cause for the delay. In contrast under Section 473 of the Code because of the disjunctive proposition at the end of the section it is obligatory on the Court to consider whether interests of justice would be better served by extending the period rather than by terminating the prosecution on the ground of limitation. While for exercise of powers under Section 5 of the Limitation Act and under the proviso to Section 142 (a) of the N.I. Act the appellant or the applicant respectively has to move the Court for exercise of powers under Section 473 of the Code the Court can even act Suo Motu. This is so because unlike in a Civil Case where private rights are only involved in a criminal case in a way interest of the society at large and public right is involved and the Court must act as the guardian of those rights. None of the twenty-five decisions from the Supreme Court considered in para 3 above has specifically laid down as much but there are enough indications to that effect. An analysis of the said decisions of the Supreme Court exhibits three varying trends on the substantive aspect of Section 473 of the Code. SURENDRA VIKAL (Supra)of 1978 and R. AGHAROMURTHY (Supra) of 1991 imply that the complainant has to move the Court under Section 473 of the Code to obtain extension of the period. The observations in these two decisions carrying the said implication cannot however be elevated to the status of a binding precedent because such a question did not arise in these cases. The next trend is discernible first in BHAGIRATH KANORIA (Supra) of 1984 then in VANKA RADHAMANOHARI (Supra) of 1993 where the distinctions between the provisions of Section 473 of the Code and the cognate a provision of section 5 of the Limitation Act, which is already indicated had been highlighted. ARUN VYAS (Supra) also follow VANKA RADHAMANOHARI (Supra). Although the above two decisions deal with offence under Section 498-A that is cruelty against wife , the enunciation of the law there as regards Section 473 of the Code has to be understood as illustrative of the phrase “interests of justice” in the provision and the law stated there is therefore of general application. TARA DUTTA (Supra) though a Three Judge decision appears to have misread the provision of Section 473 of the Code in that it read the provision conjunctively instead of disjunctively thus implying that the prosecution has to satisfy the Court both as to existence of sufficient cause for delay as well as the requirement of the interest of justice.
On the procedural aspect of the provisions of Section 473 of the Code it will be useful to remember that the implication of the decisions discussed in this Section is that it is the duty of the Court to be alive to the provisions of Section 473 of the Code on its own at the time of taking cognizance of an offence as indicated in Section 468 of the Code. Next question that arises is when the prosecution applies under Section 473 of the Code should the application be filed alongwith the complaint or the charge-sheet as the case may be. In SUKHDEV RAJ (Supra) of 1993 the application was filed “almost at the conclusion of the trial and before judgment was delivered”. It was observed that the words “so to do in the interest of justice” are wide enough to entertain and act on the application. However, the latter development of the law, to be considered shortly, would have certain impact on the entertainment of such an application not filed alongwith the complaint or the charge-sheet. The Three Judge decision in SHARAD CHANDRA VINAYAK DONGRE (Supra) of October 1994 the application for condonation of delay was filed simultaneously with the charge-sheet and the Court allowed the application, took cognizance and issued process against the accused. The Supreme Court set aside the order of the Chief Judicial Magistrate and remitted the application for fresh disposal after hearing both the prosecution and the would be accused. To that extent SUKHDEV RAJ (Supra) will be in the teeth of SHARAD CHANDRA (Supra) a Three Judge Bench and must yield to the later decision by a larger Bench. Still later Three Judge decisions in ADALAT PRASAD –VS- ROOPLAL JINDAL, AIR 2004 S.C. 4674 and SUBRAMANIUM SETHURAMAN –Vs- STATE OF MAHARASHTRA, AIR 2004 S.C. 4711 would make an application under Section 473 of the Code filed after taking of cognizance and issue of process only one dimensional. In other words on such application after hearing both sides the Court can only condone the delay but cannot give relief to the accused by terminating the prosecution on the ground of bar of limitation. To get relief by the accused on that score he has either to wait till the stage of framing of charge or till judgment depending on the nature of the case that is summons case or warrant case on police report or on private complaint.
It is surprising that SHARAD CHANDRA VINAYAK DONGRE (Supra) has been cited before the Supreme Court only in P.K. CHOUDHURY (Supra) of the 13th of March 2008. TARA DUTTA (Supra) another Three Judge decision on Section 473 of the Code did not notice it and only laid sown that the Court taking cognizance after the expiry of limitation must through a speaking Order say that it acted under Section 473 of the Code. It did not go far enough to emphasize the necessity of hearing both the sides and to say that the delay cannot be condoned behind the back of the accused which is the essence of SHARADCHANDRA VINAYAK DONGRE (Supra). Lastly, on this aspect though in RAKESH KUMAR (Supra) another Three Judge Bench and in RAMESH (Supra) the Supreme Court had condoned the delay without remitting the matter to the Trial Court unlike in SHARAD CHANDRA (Supra) on the principle that the word rather than the deed of the Supreme Court is the law laid down and to be followed as such the course adopted in RAKESH KUMAR (Supra) need not be indeed cannot be followed by the High Courts and the subordinate Courts in view of the holding in SHARAD CHANDRA VINAYAK DONGRE (Supra).
Continuance is two dimensional. Continuance may be in space or locality and/or may be in time. Section 178(c) of the Code speaks of the space dimension and Section 470 of the Code speaks of the time dimension. So far the clearest enunciation of the concept of continuing offence as regards limitation in time can be read in GOKAK PATEL (Supra). It also has relied on the earlier judgment of the Supreme Court in BHAGIRATH KANORIA (Supra). Tested in the light of the law enunciated in the above two cases what has been stated in ARUN VYAS (Supra) in relation to an offence under Section 498-A of the Penal Code as being a continuing offence cannot be correct. It was also not necessary for a decision of that case to determine whether the offence under Section 498-A of the penal code is a continuing offence or not. Indeed the second and the third sentence in para 13 of ARUN VYAS (Supra) do not match the statement of law in GOKAK PATEL (Supra). It is surprising that in TARA DUTTA (Supra) the Supreme Court thought that the one of the points falling for determination in ARUN VYAS (Supra) was whether the offence under Section 498-A of the penal code is continuing offence or not. ARUN VYAS (Supra) was concerned more with Section 473 of the Code, as has already been pointed out, and the matter of continuing offence was only a casual observation.
498A IPC Referecne :
VANKA RADHAMANOHARI (SMT) –VS- VANKA VENKATA REDDY AND OTHERS, (1993)3 SCC 4 decided on the 20th April 1993 was a case where the Magistrate took cognizance of the offences under Section 498-A and 494 of the Penal Code. The High Court quashed the criminal proceedings on the ground of the bar under Section 468 of the Code since Section 498- A I.P.C prescribes punishment only upto three years imprisonment. The High Court did not notice that for offence under Section 494 I.P.C. punishable with imprisonment upto seven years no bar of limitation is applicable. The Supreme Court referred to SARWAN SINGH (Supra) and BHAGIRATH KANORIA (Supra) and held that the High Court should have considered the provisions of Section 473 of the Code, specially in a case of cruelty against women. The crux of the judgment is the highlighting of the difference between the provisions of Section 5 of the Limitation Act, 1963 and those of Section 473 of the Code covering the same ground but with considerable difference in application. The Supreme Court applied Section 473 and condoned the delay. The order of the Magistrate was restored.
ARUN VYAS –VS- ANITA VYAS, (1999)4 SCC 690 decided on the 4th May 1999 is a decision where the Magistrate took cognizance of offences under Section 498-A and 406 of the Penal Code on a charge-sheet submitted on 22.12.1995. On the day fixed for framing of the charge, however, the Magistrate discharged the accused husband on the ground of limitation as because the complaint specifically gave the date of occurrence to be 13.10.1988. The High Court set aside the order of discharge directed him to decide the case in accordance with law. The Supreme Court in so far as the offence under Section 406 is concerned upheld the order of discharge passed by the Magistrate on the ground of bar of limitation in the absence of any explanation of the inordinate delay of about 4 years in filing the charge-sheet. But for the other offence that is one under section 498-A the Supreme Court followed VANKA RADHA MONOHARI (Supra) and remitted the matter to the trial court for consideration of “the question of limitation taking note of Section 473 Cr.P.C.”. it was specifically held that any finding recorded by a Magistrate holding the complaint to be barred by limitation without considering the provisions of Section 473 of the Code will be a deficient and defective finding. The mandate for liberal construction of Section 473 of the Code in favour of the wife, a victim of cruelty was emphasized in this decision.
STATE OF H.P. Vs- TARA DUTTA, (2000)1 SCC 230 decided on the 19th November 1999 is again a Three Judge decision of the Supreme Court on the question of limitation in criminal cases. Three Judge Bench was constituted on a reference by a Two Judge Bench holding that ARUN VYAS (Supra) needs reconsideration. Two important holdings in this decision are these :- (1) that Limitation is to be applied to the offence charged and not to the offence eventually found proved at the trial in view of sub-section (3) of Section 468 added in 1978. (2) Under Section 473 of the code a discretion has been vested in the Court taking cognizance to extend the period of limitation if the delay is satisfactorily explained and it is in the interest of justice to extend the period. The said discretion has to be exercised on judicially recognized grounds and through a speaking order. By way of cutting down the width of the statement of law in this regard in relation to the offence under Section 498-A the Supreme Court reiterated above exposition of the law while adopting the need for liberal construction of the provisions of Section 473 of the Code.
RAMESH AND OTHERS VS STATE T.N., (2005)3 SCC 507 decided on the 3rd March, 2005 was a case relating to offences under Section 498-A, 406 of the Penal Code and Section 4 of the Dowry Prohibition Act. Quashing of the criminal proceedings was sought on the ground of bar of limitation and lack of territorial jurisdiction. Failing in the High Court the accused persons reached the Supreme Court and urged the said two contention. The Supreme Court on the question of territorial jurisdiction relied on Y. ABRAHAM AJITH –VS- INSPECTOR OF POLICE, (2004)8 SCC 100 and came to the conclusion that the offences alleged cannot be said to have been committed wholly or partly within the territorial jurisdiction of the Trial Court and transferred the case to the Court at Chennai. On the question of the bar of limitation relying on ARUN VYAS (Supra) held thus :
“………………. The last act of cruelty would be the starting point of limitation. The three year period as per Section 468(2) (c) would expire by 14.10.2001 even if the latter date is taken into account. But that is not the end of the matter. We have still to consider whether the benefit of the extended period of limitation could be given to the informant.”
Proceeding thus considering the date of the F.I.R. etc applied the provisions of Section 473 of the Code and condoned the delay without remitting the matter of condonation of delay under Section 473 of the Code to the Trial Court.
SANAPAREDDY MAHEEDHAR SESHAGIRI & ANR Vs STATE OF ANDHRA PRADESH & ANR, AIR 2008 SC 787, decided on the 13th of December, 2007 deals with the question whether the Magistrate could take cognizance of offences under Section 498-A and 406 of the Penal Code read with Section 4 and 6 of the Dowry Prohibition Act after expiry of three years. The Supreme Court reviewed the earlier decisions in STATE OF PUNJUB –VS- SARWAN SINGH (Supra), VANKA RADHAMANO HARI (Supra), ARUN VYAS (Supra), STATE OF H.P. –Vs- TARA DUTTA (Supra) and RAMESH (Supra) and answered the question thus :-
“The ratio of the above noted judgments is that while considering applicability of Section 468 to the complaints made by the victims of matrimonial offences the court can invoke Section 473 and can take cognizance of an offence after expiry of the period of limitation.”ÿHaving held as above, however, on the facts and circumstances of that matrimonial case the Supreme Court set aside the decisions of the Trial Court and the High Court and quashed the criminal proceedings.