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AGAINST THE FOLLOWING CASE CRIMINAL APPEAL IS FILED BOTH CITED FOR ACADEMIC PURPOSE
Sec.494 A.P. Amendment of I.P.C. and sec.198 Cr.P.C. = WHETHER POLICE CAN TAKE COGNIZANCE UNDER SEC.494 AND ON CHARGE SHEET WHETHER COURT CAN TAKE COGNIZANCE UNDER SEC.494 WHEN COMPLAINT NOT PRESENTED BY WIFE = As per the amendment of the schedule, Section 494 of IPC is made cognizable and the police are empowered to investigate the case.- Section 198(1) proviso (c ) of Cr.P.C bars taking cognizance of the case relating to offences punishable under Sections 494 and 495 I.P.C. Proviso (c ) to Section 198(1) of Cr.P.C as it is relevant for the purpose of this case reads as follows:- "Provided that .......... (c ) where the person aggrieved by an offence punishable under (Section 494 or Section 495) of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister (or with the leave of the Court, by any other person related to her by blood, marriage or adoption)".= though offence punishable under Section 494 I.P.C as amended in the state of Andhra Pradesh is made cognizable, there is no corresponding amendment to Section 198 Cr.P.C., and that though investigating agency is entitled to investigate, the Magistrate is precluded from taking cognizance of the said offence on report filed by the police.

criminal appeal to SC

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1428 OF 2011
(Arising out of S.L.P. (Crl.) No. 6349 of 2010)
A. Subash Babu ...
Petitioner(s)
Versus
State of A.P.& Anr. ...Respondent(s)
J U D G M E N T
J.M. PANCHAL, J.
1. Leave granted.
2. This appeal by grant of Special Leave, questions the
legality of Judgment dated 26.02.2010, rendered byReportable
the learned Single Judge of the High Court of
Judicature, Andhra Pradesh in Criminal Petition No.
2426 of 2005 by which the prayer made by the
appellant, a Police Officer, to quash the proceeding in
C.C. No. 820 of 1996 initiated for commission of
offences punishable under Sections 498A, 494, 495,
417 and 420 IPC, has been partly allowed by quashing
proceedings insofar as offence punishable under
Section 498A IPC is concerned,
whereas the
proceedings relating to the offences punishable under
Sections 494, 495, 417 and 420 IPC are ordered to
continue against the appellant.
3. The appeal arises in the following circumstances:-
The respondent no. 2 is the original complainant.
According to her, the petitioner who is Sub-Inspector of
Police, cheated her and her parents by stating that his first
wife had died after delivering two children who are studying
and staying in a hostel, even though his first wife by name
Sharda is very much alive and living with him atReportable
Avanthinagar near Erragadda and thus by making false and
fraudulent representation, the appellant married with her at
Yadagirigutta on 09.10.1994. The case of the respondent no.
2 is that the appellant had collected total amount of
Rs.28,000/- from her father towards hand loan on the false
plea that he was constructing his own house at Borabanda
and the appellant further demanded a sum of Rs.20,000/-
from her father and when her father expressed inability to
pay the amount, the appellant threatened the complainant
and her father with dire consequences by showing his
licensed revolver. According to the complainant, several
times the appellant had tried to snatch away gold ornaments
put on by her by threatening her with dire consequences and
had demanded gold ornaments together with cash of
Rs.15,000/- from her parents. The case of the respondent
no. 2 is that when additional demand was not fulfilled the
appellant had threatened her and her father again by saying
that he would wipe out the evidence of his marriage with the
complainant which had taken place at Yadagirigutta by
destroying all the photographs and negatives and would walkReportable
out of her life. Thus feeling aggrieved by the acts of the
appellant in cheating her, committing bigamy and meting out
cruelty to her for dowry, etc., the respondent no. 2 lodged
FIR dated 26.05.1995 with Ranga Reddy Police Station,
Balanagar and prayed to take appropriate action against the
appellant for alleged commission of offences under Sections
498A and 420 IPC.
4. The Investigating Officer, investigated the FIR lodged by
the respondent no. 2 and submitted charge sheet in the
Court of learned Judicial Magistrate, First Class, Hyderabad,
West and South Court, R.R.District at Kothapet, Sarunagar
for commission of offences punishable under Sections 494,
495, 417, 420 and 498A IPC. On receipt of the charge sheet
the learned Magistrate took cognizance of the offences and
summoned the appellant. The record shows that earlier
Criminal Petition No. 812 of 2001 was filed by the appellant
before the High Court to quash the proceedings initiated
pursuant to C.C. No. 820 of 1996 pending on the file of the
learned Judicial Magistrate. However, the said petition wasReportable
withdrawn by the appellant and therefore the petition was
dismissed by the High Court vide order dated 09.04.2005
reserving liberty to the appellant to file a fresh petition in
case of necessity. After few days thereof, the appellant
filed Criminal Petition No. 2426 of 2005 in the High Court for
quashing the proceedings in the Criminal Case pending
before the learned Magistrate. The record does not indicate
as to why Criminal Petition No. 812 of 2001 filed by the
appellant in which similar reliefs as claimed in Criminal
Petition No. 2426 of 2005, were claimed, was withdrawn and
which were the new/additional circumstances/grounds
which prompted the appellant to file Criminal Petition No.
2426 of 2005.
The said petition was filed mainly on the
ground that the proceedings against the appellant were
registered for commission of above mentioned offences on the
basis of charge sheet submitted by the Sub-Inspector of
Police, Women Police Station, Amberpet, R.R. District and
not on the basis of complaint made by the aggrieved person
within the meaning of Section 198 of the Code.
According to
the appellant the person aggrieved by alleged commission ofReportable
offences under Sections 494 and 495 is his wife and
cognizance of those offences could have been taken only on
the basis of the complaint filed by his wife in the Court or by
someone on her behalf as contemplated by Section 198A
(1)(c) of the Code, and therefore, the learned Magistrate could
not have taken cognizance of those offences on the basis of
submission of charge sheet by Sub-Inspector of Police on the
basis of the investigation into the FIR lodged by the
respondent No. 2 who is not the aggrieved person within the
meaning of Section 198 of the Code.
It was pleaded that
there was no averment that pursuant to deception or
fraudulent or dishonest inducement made by the appellant,
there was any delivery or destruction of property belonging to
the original complainant and therefore Section 420 IPC was
not attracted.
It was the case of the appellant that the
provision of Section 498A was also not attracted because the
respondent no. 2 was not the wife of the appellant.
It was
also the case of the appellant that Section 417 IPC merged
into offence under Section 495 IPC which is a graver offence
than Section 417 and as there were no allegationsReportable
constituting offence under Section 417 IPC, the proceedings
initiated for alleged commission of the offences should be
quashed.
5. The High Court considered the submissions advanced
at the Bar as well as the provisions of Sections 198(1)(c) of
the Code of Criminal Procedure, Section 494 and 495 IPC
and the Judgment of Division Bench of Andhra Pradesh High
Court in Mavuri Rani Veera Bhadranna Vs. State of A.P.
and Anr. 2007 (1) ALD (Crl.) 13 (A.P.) and concluded that
the Division Bench in Mavuri Rani Veera Bhadranna
(supra) had taken note of the fact that
the offence
punishable under Section 494 IPC as amended by the State
of Andhra Pradesh was made cognizable, and though there
was no corresponding amendment to Section 198 of the
Criminal Procedure Code, the investigating agency was
entitled to investigate, and the Magistrate was not precluded
from taking cognizance of the said offence on report filed by
the police. Having so concluded the Division Bench
proceeded to quote part of the Judgment in Mavuri RaniReportable
Veera Bhadranna (supra) and after noting contentions on
behalf of the parties proceeded to consider the decision in the
case of S.Radhika Sameena Vs. Station House Officer,
1997 Criminal Law Journal 1655 and held that the
decision of the Division Bench in Mavuri Rani Veera
Bhadranna (supra) was holding the field with regard to
competency of the police to file charge sheet and competency
of the Magistrate to take cognizance of the offences
punishable under Sections 494 and 495 IPC on the report
filed by the police.
The High Court further concluded that
taking cognizance of the offences punishable under Sections
417, 420, 494 and 495 IPC was in accordance with law,
but
the victim i.e. the respondent no. 2 in the present case was
second wife and therefore prima facie marriage between
appellant and the second respondent was void and therefore,
offence under Section 498A IPC was not made out against
the appellant.
6. In view of the above mentioned conclusions, the learned
Single Judge of the High Court by the impugned JudgmentReportable
partly accepted the petition filed by the appellant under
Section 482 of the Code of Criminal Procedure by quashing
the proceedings in C.C.No. 820 of 1996 on the file of the
learned Judicial Magistrate, First Class, West and South,
Kothapet, R.R.District, insofar as offence punishable under
Section 498A IPC is concerned, whereas the prayer made by
the appellant to quash the proceedings insofar as the
offences punishable under Sections 494, 495, 417 and 420
IPC, are concerned, is rejected, giving rise to the instant
appeal.
7. The learned Counsel for the appellant argued that the
learned Magistrate could not have taken cognizance of
offences under Sections 494 and 495 IPC on the basis of the
police report submitted by the Investigating Officer because
though the State legislation amended the First Schedule to
the Code of Criminal Procedure, 1973 by making the offences
under Section 494 ad 495 IPC cognizable, the legislation
made by the Parliament in respect of Section 198 of the Code
of Criminal Procedure remained the same and in the event ofReportable
any repugnancy between the two legislations, the legislation
made by the Parliament would prevail.
It was emphasized
that Section 198 A inserted by Section 5 of the Act 46 of
1983 with effect from 25.12.83 provides that no Court shall
take cognizance of an offence punishable under Section 498A
of the Indian Penal Code except upon a police report of facts
which constitute such offences or upon a complaint made by
the person aggrieved by the offence or by her father, mother,
brother, sister or by her father’s, her mother’s, brother or
sister or with the leave of the Court by any other person
related to her by blood, marriage or adoption,
but no
provision is made to enable a court to take cognizance of
offences punishable under Sections 494 and 495 of the
Indian Penal Code upon police report and therefore the
proceedings pending before the learned Magistrate in respect
of those offences should have been quashed.
Referring to
Section 198(1)(c) which inter alia provides that no Court
shall take cognizance of an offence punishable under
Chapter XX of the Indian Penal Code except upon a
complaint made by a person aggrieved, where the personReportable
aggrieved by an offence punishable under Section 494 or
Section 495 of the Indian Penal Code, is the wife etc., it was
pleaded that in the instant case no complaint was made to
the Court but was made to the police and on the basis of
charge sheet, the Magistrate had taken cognizance of the
offences which is contrary to Section 198 of the Code and is
illegal.
What was asserted was that the High Court failed to
notice that under Section 198(1)(c) of the Criminal Procedure
Code only a legally wedded wife or someone on her behalf as
mentioned in the said Section can make a complaint to
Magistrate for the offences under Section 494 and 495 IPC
and as admittedly the complaint was made by the
respondent no. 2 who is claiming to be second wife of the
appellant herein and that too to the police and not in the
Court, the proceedings initiated for alleged commission of
those offences should have been quashed.
In support of
above stated contentions, the learned Counsel for the
petitioner placed reliance on the decision in Mavuri Rani
Veera Bhadranna (Supra).Reportable
8. On the other hand, the learned Counsel for the
respondents argued that by Code of Criminal Procedure
(Andhra Pradesh Second Amendment) Act, 1992, the offences
under Sections 494 and 495 have been made cognizable in
the State of Andhra Pradesh, and therefore the respondent
No. 2 who is aggrieved person so far as commission of
offences punishable under Sections 494 and 495 IPC are
concerned, was justified in lodging FIR with the police and
the police after investigation, was justified in submitting
charge sheet on the basis of which proceedings are pending
before the learned Magistrate in respect of alleged
commission of offences by the appellant under Section 494,
495, 417, 420 and 498A IPC.
The contention by the learned
Counsel for the respondents was that 198(1)(c) of the Code of
Criminal Procedure will have to be read in the light of the
amendment made in the Code by the State Legislature and
therefore the learned Magistrate did not commit any error in
taking cognizance of the offences on the basis of charge sheet
submitted by the Investigating Officer. Reportable
9. This Court has heard the learned Counsel for the
parties at length and also considered the documents forming
part of the appeal.
10. The contention that the respondent no. 2 is not an
aggrieved person so far as commission of offences punishable
under Sections 494 and 495 IPC is concerned, has no
substance and cannot be accepted.
Section 494 of IPC reads
as under:-
“Whoever, having a husband or wife living,
marries in any case in which such marriage is
void by reason of its taking place during the
life of such husband or wife, shall be punished
with imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.”
Whereas Section 495 of the IPC is as follows:-
“Whoever commits the offence defined in the
last preceding section having concealed from
the person with whom the subsequent
marriage is contracted, the fact of the former
marriage, shall be punished with
imprisonment of either description for a term
which may extend to ten years, and shall also
be liable to fine.”Reportable
As far as Section 494 IPC is concerned, the criminality
attaches to the act of second marriage either by a husband
or by a wife who has a living wife or husband, in a case in
which second marriage is void by reason of its taking place
during the life of such husband or wife.
When a law, such as
Section 11 of Hindu Marriage Act, 1955 declares that a
second marriage by a husband, who has living wife, with
another woman is void, for breach of Section 5 (i) of the said
Act, it brings/attaches several legal disabilities to the woman
with whom second marriage is performed. Say for example,
she would not be entitled to claim maintenance from her
husband even if she is inhumanly treated, subjected to
mental and physical cruelty of variety of kinds etc. and is not
able to maintain herself. Law of inheritance would
prejudicially operate against her. She herself would suffer
outrageous, wrong and absurd social stigma of being another
woman in the life of the male who contracts second marriage
with her. The members of the cruel society including her
kith and kin like parents, brother, sister etc. would look
down upon her and she would be left in lurch by one and all.Reportable
When a Court of law declares second marriage to be void on
a petition presented by husband who contracts the second
marriage on the ground that he has a spouse living at the
time of marriage, it only brings untold hardships and
miseries in the life of the woman with whom second marriage
is performed apart from shattering her ambition to live a
comfortable life after marriage.
Having noticed the agony, trauma etc. which would be
suffered by the woman with whom second marriage is
performed, if the marriage is declared to be void, let us make
an attempt to ascertain the purpose of enacting Section 494
IPC. This Section introduces monogamy which is essentially
voluntary union of life of one man with one woman to the
exclusion of all others. It enacts that neither party must
have a spouse living at the time of marriage. Polygamy was
practiced in many sections of Hindu society in ancient times.
It is not a matter of long past that in India, hypergamy
brought forth wholesale polygamy and along with it misery,
plight and ignominy to woman having no parallel in the
world. In post vedic India a King could take and generallyReportable
used to have more than one wife. Section 4, of Hindu
Marriage Act nullifies and supersedes such practice all over
India among the Hindus. Section 494 is intended to achieve
laudable object of monogamy. This object can be achieved
only by expanding the meaning of the phrase “aggrieved
person”. For variety of reasons the first wife may not choose
to file complaint against her husband e.g. when she is
assured of re-union by her husband, when husband
assures to snap the tie of second marriage etc. Non-filing of
the complaint under Section 494 IPC by first wife does not
mean that the offence is wiped out and monogamy sought to
be achieved by means of Section 494 IPC merely remains in
statute book. Having regard to the scope, purpose, context
and object of enacting Section 494 IPC and also the
prevailing practices in the society sought to be curbed by
Section 494 IPC, there is no manner of doubt that the
complainant should be an aggrieved person.
Section
198(1)(c) of the Criminal Procedure Code, amongst other
things, provides that where the person aggrieved by an
offence under Section 494 or Section 495 IPC is the wife,Reportable
complaint on her behalf may also be filed by her father,
mother, sister, son, daughter etc. or with the leave of the
Court, by any other person related to her by blood, marriage
or adoption.
In Gopal Lal Vs. State of Rajasthan (1979) 2
SCC 170
this Court has ruled that in order to attract the
provisions of Section 494 IPC both the marriages of the
accused must be valid in the sense that the necessary
ceremonies required by the personal law governing the
parties must have been duly performed.
Though Section 11
of the Hindu Marriage Act provides that any marriage
solemnized, if it contravenes the conditions specified in
Clause (i) of Section 5 of the said Act, shall be null and void,
it also provides that such marriage may on a petition
presented by either party thereto, be so declared.
Though
the law specifically does not cast obligation on either party to
seek declaration of nullity of marriage and it may be open to
the parties even without recourse to the Court to treat the
marriage as a nullity, such a course is neither prudent nor
intended and a declaration in terms of Section 11 of the
Hindu Marriage Act will have to be asked for, for the purposeReportable
of precaution and/or record.
Therefore, until the declaration
contemplated by Section 11 of the Hindu Marriage Act is
made by a competent Court, the woman with whom second
marriage is solemnized continues to be the wife within the
meaning of Section 494 IPC and would be entitled to
maintain a complaint against her husband.
Even otherwise, as explained earlier, she suffers several
legal wrongs and/or legal injuries when second marriage is
treated as a nullity by the husband arbitrarily, without
recourse to the Court or where declaration sought is granted
by a competent Court.
The expression “aggrieved person”
denotes an elastic and an elusive concept. It cannot be
confined within the bounds of a rigid, exact and
comprehensive definition. Its scope and meaning depends on
diverse, variable factors such as the content and intent of the
statute of which contravention is alleged, the specific
circumstances of the case, the nature and extent of
complainant’s interest and the nature and the extent of the
prejudice or injury suffered by the complainant.
Section 494
does not restrict right of filing complaint to the first wife andReportable
there is no reason to read the said Section in a restricted
manner as is suggested by the learned Counsel for the
appellant.
Section 494 does not say that the complaint for
commission of offence under the said section can be filed
only by wife living and not by the woman with whom
subsequent marriage takes place during the life time of the
wife living and which marriage is void by reason of its taking
place during the life of such wife.
The complaint can also be
filed by the person with whom second marriage takes place
which is void by reason of its taking place during the life of
first wife.
A bare reading of the complaint together with statutory
provisions makes it abundantly clear that the appellant
having a wife living, married with the respondent no. 2
herein by concealing from her the fact of former marriage
and therefore her complaint against the appellant for
commission of offence punishable under Section 494 and
495 IPC is, maintainable and cannot be quashed on this
ground. Reportable
To hold that a woman with whom second marriage is
performed is not entitled to maintain a complaint under
Section 494 IPC though she suffers legal injuries would be
height of perversity.
11. Section 495 IPC provides that if a person committing
the offence defined in Section 494 IPC conceals from the
person with whom subsequent marriage is contracted, the
fact of the former marriage, the said person is liable to
punished as provided therein. The offence mentioned in
Section 495 IPC is an aggravated form of bigamy provided in
Section 494 IPC. The circumstance of aggravation is the
concealment of the fact of the former marriage to the person
with whom the second marriage is contracted. Since the
offence under Section 495 IPC is in essence bigamy, it follows
that all the elements necessary to constitute that offence
must be present here also. A married man who by passing
himself off as unmarried induces an innocent woman to
become, as she thinks his wife, but in reality his mistress,
commits one of the grossest forms of frauds known to lawReportable
and therefore severe punishment is provided in Section 495
IPC. Section 495 begins with the words “whoever commits
the offence defined in the last preceding Section........” The
reference to Section 494 IPC in Section 495 IPC makes it
clear that Section 495 IPC is extension of Section 494 IPC
and part and parcel of it. The concealment spoken of in
Section 495 IPC would be from the woman with whom the
subsequent marriage is performed. Therefore, the wife with
whom the subsequent marriage is contracted after
concealment of former marriage, would also be entitled to
lodge complaint for commission of offence punishable under
Section 495 IPC. Where second wife alleges that the accused
husband had married her according to Hindu rites despite
the fact that he was already married to another lady and the
factum of the first marriage was concealed from her, the
second wife would be an aggrieved person within the
meaning of Section 198 Cr. P.C. If the woman with whom
the second marriage is performed by concealment of former
marriage is entitled to file a complaint for commission of
offence under Section 495 IPC, there is no reason why sheReportable
would not be entitled to file complaint under Section 494 IPC
more particularly when Section 495 IPC is extension and
part and parcel of Section 494 IPC.
For all these reasons, it is held that the woman with
whom second marriage is contracted by suppressing the fact
of former marriage would be entitled to maintain complaint
against her husband under Sections 494 and 495 IPC.
12. The argument that the learned Magistrate could not
have taken cognizance of offence punishable under Sections
494 and 495 IPC on the basis of the police report i.e. charge
sheet, as those offences are non- cognizable and therefore,
the relief claimed in the petition filed before the High Court
under Section 482 of the Code should have been granted is
devoid of merits.
13. In this regard, it would be, relevant to notice the
provisions of Article 246 of the Constitution. Article 246
deals with subject matter of laws made by the ParliamentReportable
and by the legislatures of State.
Clause (1) of Article 246 inter
alia provides that notwithstanding anything contained in
Clauses (2) and (3) of Article 246, the Parliament has
exclusive power to make laws with respect to any of the
maters enumerated in List 1 in the Seventh Schedule.
SubClause 2 of the said Article provides that notwithstanding
anything in Clause (3), Parliament and subject to Clause (1),
the legislature of any State also have power to make laws
with respect to any of the matters enumerated in List 3 in
the Seventh Schedule, whereas, Clause (3) of Article 246
amongst other things provides that subject to Clauses (1)
and (2), the legislature of any State has exclusive power to
make laws for such State or any part thereof with respect to
any of the matters enumerated in List 2 in the Seventh
Schedule.
Entry 2 in List 3 i.e. Concurrent List in the
Seventh Schedule mentions “Criminal Procedure, including
in matters included in the Code of “Criminal procedure, at
the commencement of this Constitution”.
Thus there is no
manner of doubt that Parliament and subject to Clause (1),
the legislature of any State also has power to make laws withReportable
respect to Code of Criminal Procedure.
Section 2(c) of the
Code of Criminal Procedure, 1973 defines the phrase
“Cognizable Offence” to mean an offence for which and
“Cognizable Case” means a case in which, a Police Officer
may, in accordance with the First Schedule or under any
other law for the time being in force arrest without warrant.
Part I of the First Schedule to the Code of Criminal
Procedure, 1973 relating to offences under the Indian Penal
Code inter alia mentions that Section 494 and 495 are noncognizable.
Section 154 of the Criminal Procedure Code
relates to information in cognizable cases and provides inter
alia that every information relating to the commission of a
cognizable offence, if given orally to an Officer in charge of a
Police Station, shall be reduced to writing by him and be
read over to the informant. Section 156 of the Code provides
that any Officer in charge of a Police Station may, without
the order of a Magistrate, investigate any cognizable case
which a Court having jurisdiction over a local area within the
limits of such station would have power to enquire into or try
under provisions of Chapter XIII of Criminal Procedure Code.Reportable
As Sections 494 and 495 are made non-cognizable, a Police
Officer would not have power to investigate those cases
without the order of a Magistrate, having a power to try such
cases or commit such cases for trial as provided under
Section 155(2) of the Code.
However, this Court finds that the Legislative Assembly
of the State of Andhra Pradesh enacted the Code of Criminal
Procedure (Andhra Pradesh Second Amendment) Act, 1992.
By the said Amending Act, the First Schedule to Central Act
2 of 1974 i.e. the Code of Criminal Procedure, 1973 came to
be amended and against the entries relating to Section 494
in column 4 for the word “Ditto”, the word “Cognizable” and
in column 5 for the word “Bailable” the word “Non-bailable”
were substituted. Similarly, against the entries relating to
Section 495 in column 4, for the word “Ditto” the word
“Cognizable” and in column 5 for the word “Ditto”, the word
“Non-bailable” were substituted.
What is relevant to be
noticed is that the Code of Criminal Procedure (Andhra
Pradesh Second Amendment) Act, 1992 was reserved by the
Governor of Andhra Pradesh on the 21st October, 1991 forReportable
consideration and assent of the President. The Presidential
assent was received on 10th February, 1992 after which the
Code of Criminal Procedure (Andhra Pradesh Second
Amendment) Act, 1992 was published on the 15th February,
1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Thus
there is no manner of doubt that Sections 494 and 495 IPC
are cognizable offences so far as State of Andhra Pradesh is
concerned.
14. Having noticed the amendment made by the Legislative
Assembly of the State of Andhra Pradesh regarding Section
494 and 495 IPC, this Court proposes to consider the effect
of assent given by the President on 10
th February, 1992 to
the Code of Criminal Procedure (Andhra Pradesh Second
Amendment) Act, 1992. Article 254 of the Constitution reads
as under:-
“254 Inconsistency between laws made by
Parliament and laws made by the
Legislatures of States:-
(1) If any provision of a law made by the
Legislature of a State is repugnant to any
provision of a law made by Parliament which
Parliament is competent to enact, or to anyReportable
provision of an existing law with respect to
one of the matters enumerated in the
Concurrent List, then, subject to the
provisions of clause (2), the law made by
Parliament, whether passed before or after
the law made by the Legislature of such
State, or, as the case may be, the existing
law, shall prevail and the law made by the
Legislature of the State shall, to the extent of
the repugnancy, be void.
(2) Where a law made by the Legislature of
a State with respect to one of the matters
enumerated in the Concurrent List contains
any provision repugnant to the provisions of
an earlier law made by Parliament or an
existing law with respect to that matter, then,
the law so made by the Legislature of such
State shall, if it has bee reserved for the
consideration of the President and has
received his assent, prevail in that State.
Provided that nothing in this clause shall prevent
Parliament from enacting a law adding to, amending, varying
or repealing the law made by the legislature of the State”.
There is no manner of doubt that Amending Act of 1992
is on the subject which is already in existence in the Code of
Criminal Procedure, 1973. However, in view of Clause (2) of
Article 254 of the Constitution, an undoubted power to
legislate, of course subject to assent of the President on theReportable
subject already in existence, is available to the State
Legislature. Clause (1) of Article 254 is operative subject to
provisions of Clause (2). If a law passes a test of Clause (2),
it will make Clause (1) inapplicable to it. To the general rule
laid down in Clause (1), Clause (2) engrafts an exception, viz.,
that if the President assents to a State Law which has been
reserved for his consideration as required by Article 200, it
will prevail notwithstanding its repugnancy to an earlier law
of Union. Clause (2) provides for curing of repugnancy which
would otherwise invalidate a State law which is inconsistent
with a Central law or an existing law. The clause provides
that where the State law has been reserved for the
consideration of the President and has received his assent,
the State law would prevail in the particular State
notwithstanding its repugnancy to a Central law or an
existing law. Clause (2) comes into play only when (1) the
two laws in question deal with a matter in Concurrent List (2)
the State law has been made with the consent of the
President and (3) the provision of law made by Parliament
was earlier. When all these three conditions are satisfied,Reportable
the law made by the State Legislature will prevail. Where
there is inconsistency between laws made by Parliament and
laws made by the State Legislature, the law made by the
Parliament shall prevail. If the State makes law enumerated
in Concurrent List which contains provisions repugnant to
the provision of an earlier law made by the Parliament, the
law so made by the State if it receives assent of President will
prevail in the State. When the State Act prevails under
Article 254(2) over a Central Act, the effect is merely to
supersede the Central Act or to eclipse it by the State Act. In
short, the result of obtaining the assent of the President to a
State Act which is inconsistent with a previous Union Law
relating to a concurrent subject would be that the State Act
will prevail in that State and overrule the provisions of the
Central Act, in that State.
In view of the above settled legal position, this Court
has no doubt that the amendment made in the First
Schedule to the Code of Criminal Procedure, 1973 by the
Code of Criminal Procedure (Andhra Pradesh Second
Amendment) Act, 1992, shall prevail in the State of AndhraReportable
Pradesh, notwithstanding the fact that in the Criminal
Procedure Code, 1973 offences under Section 494 and 495
are treated as cognizable offences. The reasoning given by
the Division Bench of High Court of Andhra Pradesh in
Mavuri Rani Veera Bhadranna (supra) that though the
State Legislation amended the Schedule making the offence
under Section 494 IPC cognizable, the legislation made by
the Parliament i.e. Section 198 of the Criminal Procedure
Code remains and in the event of any repugnancy between
the two legislations, the legislation made by the Parliament
would prevail, because, Section 198 of the Criminal
Procedure Code still holds the field despite the fact that the
State Legislation made amendment to the Schedule of
Criminal Procedure Code, with respect, is erroneous and
contrary to all cannons of interpretation of statute. Once
First Schedule to the Code of Criminal Procedure, 1973
stands amended and offences punishable under Sections 494
and 495 IPC are made cognizable offences, those offences will
have to be regarded as cognizable offences for all purposes of
the Code of Criminal Procedure, 1973 including for theReportable
purpose of Section 198 of the Criminal Procedure Code.
Section 198(1)(c), after the Amendment made by the Code of
Criminal Procedure(Andhra Pradesh Second Amendment)
Act, 1992 cannot be interpreted in isolation without referring
to the fact that offences under Sections 494 and 495 IPC
have been made cognizable so far as the State of Andhra
Pradesh is concerned. Therefore, the provision made in
Section 198(1)(c) that no Court shall take cognizance of an
offences punishable under Chapter XX of the IPC except
upon a complaint made by some person aggrieved will have
to be read subject to the amendment made by the Legislative
Assembly of the State of Andhra Pradesh in 1992. Once, it is
held that the offences under Section 494 and 495 IPC are
cognizable offences, the bar imposed by operative part of
sub-section 1 of Section 198 of the Criminal Procedure Code
beginning with the words “No Court shall take cognizance of
an offence punishable under Chapter XX of the Indian Penal
Code except upon a complaint made by some person
aggrieved by the offence” gets lifted so far as offences
punishable under Sections 494 and 495 IPC are concerned.Reportable
As those offences have been made cognizable offences in the
State of Andhra Pradesh since 1992, the same will have to be
dealt with as provided in the Section 156 which inter alia
provides that any officer in charge of a Police Station, may
without the order of a Magistrate, investigate any cognizable
case which a Court having jurisdiction over the local area
within the limits of such station would have power to enquire
into or try under the provisions of Chapter XIII. Even
without the authorization under Section 155(2) or Section
156(3) of Criminal Penal Code, offences under Sections 494,
495 and 496 having been rendered cognizable and nonbailable by virtue of the Criminal Procedure Code
(Amendment Act, 1992) can be investigated by the Police and
no illegality is attached to the investigation of these offences
by the police.
If the Police Officer in charge of a Police
Station is entitled to investigate offences punishable under
Section 494 and 495 IPC, there is no manner of doubt that
the competent Court would have all jurisdiction to take
cognizance of the offences after receipt of report as
contemplated under Section 173(2) of the Code.
Thus, this
Reportable
Court finds that correct proposition of law was not laid down
in Mavuri Rani Veera Bhadranna (supra) when the Division
Bench of the Andhra Pradesh High Court in the said case
held that as Section 198 of Criminal Procedure Code still
holds the field despite the amendment made by State
Legislature, the Court would have no jurisdiction to take
cognizance of an offence punishable under Section 494 IPC
on the basis of report submitted by the Investigating Officer.
Even if it is assumed for the sake of argument that in view of
Section 198(1)(c) of the Code of Criminal Procedure, the
Magistrate is disentitled to take cognizance of the offences
punishable under Sections 494 and 495 IPC despite the
State amendment making those offences cognizable, this
Court notices that in Mavuri Rani Veera Bhadranna
(supra), the Division Bench has considered effect of Section
155(4) of the Criminal Procedure Code and thereafter held
that the bar under Section 198 would not be applicable as
complaint lodged before police for offence under Section 494
IPC also related to other cognizable offences and if police files
a charge sheet, the Court can take cognizance also of offence
Reportable
under Section 494 along with other cognizable offences by
virtue of Section 155 (4) of the Criminal Procedure Code.
15. Section 155(4) of the Code inter alia provides that:-
“Where a case relates to two or more
offences of which at least one is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding that
the other offences are non-cognizable”
Here in this case in the charge sheet it is mentioned
that the appellant has also committed offence punishable
under Section 420 of the Indian Penal Code which is
cognizable and therefore this is a case which relates to two or
more offences of which at least one is cognizable and
therefore the case must be deemed to be cognizable case
notwithstanding that the other offences are non- cognizable.
This is not a case in which the FIR is exclusively filed for
commission of offences under Sections 494 and 495 IPC.
The case of the respondent no. 2 is that the appellant has
committed offences punishable under Sections 417, 420,
494, 495 and 498A of the IPC. A question may arise as toReportable
what should be the procedure to be followed by a
complainant when a case involves not only non- cognizable
offence but one or more cognizable offences as well. It is
somewhat anomalous that the aggrieved person by the
alleged commission of offences punishable under Sections
494 and 495 IPC should file complaint before a Court and
that the same aggrieved person should approach the police
officer for alleged commission of offences under Sections 417,
420 and 498A of the Indian Penal Code.
Where the case
involves one cognizable offence also alongwith non-cognizable
offences it should not be treated as a non- cognizable case
for the purpose of sub-section 2 of Section 155 and that is
the intention of legislation which is manifested in Section
155(4) of the Code of Criminal Procedure. Therefore, the
argument that the learned Magistrate could not have taken
cognizance of the offences punishable under Sections 494
and 495 IPC on the basis of submission of charge sheet,
cannot be accepted and is hereby rejected.
Reportable
16. This Court finds that the High Court has quashed the
proceedings pending before the learned Magistrate under
Section 498A of IPC on the spacious ground that the
marriage of the appellant with the respondent no. 2 is void
and as respondent no. 2 is not the wife, she was not entitled
to lodge first information report with the police for
commission of offence u/s. 498A IPC and on the basis of
police report, cognizance of the said offence against the
appellant could not have been taken by the learned
Magistrate. Such reasoning is quite contrary to the law
declared by this Court in Reema Aggarwal Vs. Anupam and
others (2004) 3 SCC 199. After examining the scope of
Section 498A of the Indian Penal Code and holding that a
person who enters into marital arrangement cannot be
allowed to take shelter behind the smoke screen of
contention that since there was no valid marriage the
question of dowry does not arise, this Court speaking
through Hon’ble Mr. Justice Arijit Pasayat, has held as
under:-Reportable
“Such legalistic niceties would destroy the
purpose of the provisions. Such hairsplitting
legalistic approach would encourage
harassment to a woman over demand of
money. The nomenclature “dowry” does not
have any magic charm written over it. It is
just a label given to demand of money in
relation to marital relationship. The
legislative intent is clear from the fact that it
is not only the husband but also his relations
who are covered by Section 498A. The
legislature has taken care of children born
from invalid marriages. Section 16 of the
Marriage Act deals with legitimacy of children
of void and voidable marriages. Can it be
said that the legislature which was conscious
of the social stigma attached to children of
void and voidable marriages closed its eyes to
the plight of a woman who unknowingly or
unconscious of the legal consequences
entered into the marital relationship? If such
restricted meaning is given, it would not
further the legislative intent. On the
contrary, it would be against the concern
shown by the legislature for avoiding
harassment to a woman over demand of
money in relation to marriages. The first
exception to Section 494 has also some
relevance. According to it, the offence of
bigamy will not apply to “any person whose
marriage with such husband or wife has been
declared void by a court of competent
jurisdiction”. It would be appropriate to
construe the expression “husband” to cover a
person who enters into marital relationship
and under the colour of such proclaimed or
feigned status of husband subjects the
woman concerned to cruelty or coerces her in
any manner or for any of the purposesReportable
enumerated in the relevant provisionsSections 304B/498A, whatever be the
legitimacy of the marriage itself for the
limited purpose of Sections 498A and 304B
IPC. Such an interpretation, known and
recognized as purposive construction has to
come into play in a case of this nature. The
absence of a definition of “husband” to
specifically include such persons who
contract marriages ostensibly and cohabit
with such woman, in the purported exercise
of their role and status as “husband” is no
ground to exclude them from the purview of
Section 304B or 498A IPC, viewed in the
context of the very object and aim of the
legislations introducing those provisions.”
17. In view of firm and clear law laid down on the subject,
this Court is of the confirmed view that the High Court was
not justified at all in quashing the proceedings initiated
against the appellant under Section 498A of the Code on the
ground that the respondent no. 2 was not wife within the
meaning of Section 498A of the IPC and was not entitled to
maintain complaint under the said provision. The question
therefore which arises for consideration of the Court is
whether the said finding recorded by the High Court can and
should be set aside in the present appeal which is filed byReportable
the husband. It was argued by the learned Counsel for the
appellant that quashing of proceedings with reference to
offence punishable under Section 498A of Indian Penal Code
is neither challenged by the State Government nor by the
original complainant before this Court and the same having
attained finality, the same cannot be disturbed in an appeal
filed by the husband appellant in which grievance is made
regarding non-grant of relief in full by the High Court.
18. This Court does not find any substance in the above
mentioned argument of the learned Counsel for the
appellant. The law declared by this Court in case of Reema
Aggarwal (Supra) was binding on all Court including the
learned Single Judge of High Court of A.P. who decided the
present case in view of salutary provisions of Article 141 of
the Constitution. The learned Single Judge of the High Court
could not have afforded to ignore the law declared by this
Court in Reema Aggarwal (Supra) while considering the
question whether proceedings initiated by the respondent no.
2 for commission of offence punishable under Section 498AReportable
of IPC should be quashed or not. The High Court has
completely misdirected itself in quashing the proceedings for
the offence punishable under Section 498A of IPC. There is
no manner of doubt that the finding recorded by the High
Court that the respondent no. 2 is not the wife within the
meaning of Section 498A of the Indian Penal Code runs
contrary to law declared by this Court in case of Reema
Aggarwal (Supra). There may be several reasons due to
which the State might not have challenged that part of the
Judgment of the learned Single Judge quashing the
complaint filed by the respondent no. 2 under Section 498A
of the Indian Penal Code. So also because of several reasons
such as want of funds, distance, non-availability of legal
advice, etc. the original complainant might not have
approached this Court to challenge that part of the judgment
of the learned Single Judge which is quite contrary to the law
declared by this Court. However, this Court while
entertaining an appeal by grant of special leave has power to
mould relief in favour of the respondents notwithstanding the
fact that no appeal is filed by any of the respondentsReportable
challenging that part of the order which is against them. To
notice an obvious error of law committed by the High Court
and thereafter not to do anything in the matter would be
travesty of justice. This Court while disposing of an appeal
arising out of grant of special leave can make any order
which justice demands and one who has obtained illegal
order would not be justified in contending before this Court
that in absence of any appeal against illegal order passed by
the High Court the relief should not be appropriately
moulded by the Court or that the finding recorded should not
be upset by this Court.
19. In Chandrakant Patil Vs. State (1998) 3SCC 38,
even in absence of an appeal by Government specifically for
that purpose and in absence of revisional power as is
available to High Court and Sessions Court, under Criminal
Procedure Code, this Court held that the Supreme Court has
power under Article 142 read with Section 19 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987 to enhance
the sentence for doing complete justice in the matter that inReportable
the circumstances of the case appeared to it, to be too
inadequate. In the said case it was contended that the
Supreme Court has no power to enhance sentence in the
absence of an appeal by the Government presented
specifically for that purpose more so because Supreme Court
has no revisional powers which the High Court and Court of
Sessions are conferred with by the Criminal Procedure Code.
While negativating the said contention this Court has firmly
ruled that powers of the Supreme Court in appeals filed
under Article 136 of the Constitution are not restricted by
the appellate provisions enumerated under the Code of
Criminal Procedure or any other statute. What is held as
firm proposition of law is that when exercising appellate
jurisdiction the Supreme Court has power to pass any order.
The power under Article 136 is meant to supplement the
existing legal frame work. It is conceived to meet situations
which cannot be effectively and appropriately tackled by the
existing provisions of law. Though challenge was not made
by any of the two respondents to the finding recorded by the
learned Single Judge that the complaint lodged by theReportable
respondent no. 2 for alleged commission of offence
punishable under Section 498A of the Indian Penal Code is
not maintainable because she is not a wife, this Court feels
that absence of challenge either by State or by the original
complainant should not persuade or prevent this Court from
doing justice between the parties by restoring the complaint
filed by the respondent no. 2 under Section 498A of the
Indian Penal Code on the file of the learned Magistrate. The
conclusion arrived at by the High Court is such as to shake
the conscience and sense of justice and therefore it is the
duty of this Court to strike down the finding recorded with
respect to the offence punishable under Section 498A,
irrespective of technicalities. The judgment of the High Court
quashing the proceedings initiated by the learned Magistrate
for commission of offence punishable under Section 498A is
tainted with serious legal infirmities and is founded on a
legal construction which is wrong. So the technical plea
advanced by the learned counsel for the appellant that in
absence of appeal by any of the respondents, quashing of
proceedings with respect to the offence punishable underReportable
Section 498A IPC, cannot be set aside, is hereby rejected. As
held in Ramakant Rai Vs. Madan Rail (2003) 12 SCC 395
following Arunachalam Vs. P.S.R. Sadanatham (1979) 2
SCC 297 and P.S.R. Sadanatham Vs. Arunchalam (1980) 3
SCC 141, the appellate power vested in the Supreme Court
under Article 136 is not to be confused with the ordinary
appellate power exercised by appellate Courts and appellate
Tribunals under specific statutes. It is plenary power
exercisable outside the purview of ordinary law to meet the
demand of justice. Article 136 is a special jurisdiction. It is
residuary power. It is extraordinary in its amplitude. The
limits of Supreme Court when it chases injustice, is the sky
itself. Further, the powers under Article 136 can be
exercised by the Supreme Court, in favour of a party even
suo motu when the Court is satisfied that compelling
grounds for its exercise exist. Where there is manifest
injustice, a duty is enjoined upon this Court to exercise its
suo motu power by setting right the illegality in the judgment
of the High Court as it is well settled that illegality should not
be allowed to be perpetuated and failure by this Court toReportable
interfere with the same would amount to allow illegality to be
perpetuated. When an apparent irregularity is found by this
Court in the order passed by the High Court, the Supreme
Court cannot ignore substantive rights of a litigant while
dealing with the cause pending before it. There is no
reason why the relief cannot be and should not be
appropriately moulded while disposing of an appeal arising
by grant of special leave under Article 136 of the
Constitution.
20. Therefore, that part of the impugned judgment by which
the complaint filed by the respondent no. 2 under Section
498A of the Indian Penal code is quashed by the High Court
will have to be set aside while disposing the appeal filed by
the appellant.
21. For the foregoing reasons, the appeal filed by the
appellant fails and therefore the same is hereby dismissed.
The impugned Judgment quashing the complaint filed by the
respondent no. 2 for alleged commission of offence by the
Reportable
appellant under Section 498A IPC, is hereby set aside and
the complaint lodged by the respondent no. 2 under Section
498A of the Indian Penal Code as well as charge sheet
submitted by the Investigating Officer for the same shall
stand restored/revived. Subject to above mentioned
direction the appeal stands disposed of.
.....................................J.
[J.M. Panchal]
.....................................J.
[H.L. Gokhale]
New Delhi;
July 21, 2011.

A.P.H.C.CASE LAW - ADVOCATEMMMOHAN

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