DID SARA MATHEWS OVERRULE SHARADCHANDRA VINAYAK
Keywords:
Sarah Matthews, offences, Sharadchandra Vinayak Dongre, accused, Code of Criminal Procedure 1973Abstract
This legal essay was written to dispel some confusion in a section of legal fraternity on whether or not
notice to be given to the accused prior to excusing the delay in commencing prosecutions for all
offences subject to period of limitation prescribed in any legislation on the foundation of Latin Maxim
of ‘Audi alteram partem’ (or ‘audiatur et altera pars’). The confusion may be due to the
misunderstanding of the decision on the strength of facts in 5 Justices Bench of Sarah Matthews that
‘notice need not be given to the accused’ to think that Sharadchandra Vinayak Dongre was declared
as bad law, consequently similar rulings. The Author wants to tell that Sharadchandra Vinayak
Dongre was not overruled but still holds the field since there was no impending necessity to do so as
the facts then issues in those two appeals are completely distinct.
References
1. Sec. 138 of the Negotiable Instruments Act, 1881
2. ‘Limitation for Taking Cognizance of Certain Offences’
3. Lord Justices P. Sathasivam, B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi and S.A. Bobde
4. Sarah Mathew v. Inst. For Cardiovascular Diseases & on 26 November, 2013 (FB)
5. P.K. Choudhury v. Commander, 48 Brtf (Gref) Also ref. Krishna Sahai v. State of MP 1997 Cr.LJ 90 (MP) for similar ruling
6. Ref. Bhagirath Kanoria and others V. State of M.P., AIR 1984 SC1688, Gokak Patel Volkart Ltd.v. Dundayya Guru Shiddaiahhiremath and others, (1991) 2 SCC 141
7. Though not relevant here, on the secon d issue of ‘whether the lower court can take cognizance of the offence on incomplete report’ when investigating authorities sought permission to file ‘additional charge-sheet within six months from the date of the application on collecting further additional evidence in further investigation’ the SC and High Court differed in their rulings
8. At paras. 5, 9 . The SC did not agree with the High Court on nex t issue, not necessary here, on ‘obtaining prior sanction from appropriate authority ‘to prosecute the accused’
9. Bharat Damodar Kale & Anr vs State Of A.P on 8 October, 2003 and Japani Sahoo vs Chandra Sekhar Mohanty on 27 July, 2007 ‘on one side’ and Kris hna Pillai v. T.A. Rajendran & Anr. (1990) supp. SCC 121’on opposite side’
10. ‘In another interesting and contrary submission, after reference to Krishna Pillai, Mr. Padmanabhan and Mr. Amrendra Sharan submitted that ‘the legislature has been very specific wherever time limit has to be fixed for initiation of prosecution by reference to the Negotiable Instruments Act, 1881 that bar of limitation is not co-related to taking cognizance of an offence by a court, but it is co -related to filing of a complaint withi n a specific period but it is apparent that the bar under Chapter XXXVI of the Code must be co-related to taking cognizance of an offence by the court in view of specific language used by the relevant sections to support the view that relevant date is the date of taking cognizance of an offence by the court. Their Lordships finally rejected this submission.’
11. Accused charged with offences punishable under Sections 161, 294, 323 and 506 of the IPC
12. The accused was tried for the offence under the Drugs and Mag ic Remedies (Objectionable Advertisements) Act, 1954 that was detected on 5/3/1999
13. “No court shall take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed.”
14. Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada,(1997) 2 SCC 397
15. State of Himachal Pradesh v. Tara Dutt and anr on 19 November 1999
16. K.J. Joseh v. Philips Carbon Private Ltd., 11 April 2016
17. On second issue of ‘whether the Magistrate has to conduct an enquiry when the accused -drawer was resident outside the jurisdiction of the court under Sec. 202 of Cr. PC,’ that was kept open in K.J. Joseph despite the availability of decisions in Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638 and Udai Shankar Awasthi v. State Of U.P.& Anr on 9 January, 2013, since their Lordships anyhow allowed the Appeal on the main issue ‘of condonation of delay,’ a 5 J ustices Bench of the SC in 2021 ‘In Re Disposasl of Cases under Sec. 138 of NI Act, 1881 held that ‘such enquiry was necessary’
18. ‘hear the other side’, or putting it differently ‘no man should be condemned unheared’
19. Vanka Radhamanohari (Smt) v. Vanka Venka ta Reddy and Ors. 1993 (2) SCALE 570, (1993) 3 SCC 4
20. Sesh Nath v Baidyabati Sheoraphuli Co. 22 March 2021
