A.Subash Babu vs State Of A.P.& Anr

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 by

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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 at

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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 walk

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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 was

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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 of

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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 allegations

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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 Rani

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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 Judgment

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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 of

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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 person

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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).

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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.

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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."

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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.

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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 generally

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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,

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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 purpose

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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 and

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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.

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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 law

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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 she

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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 Parliament

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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. Sub-

Clause 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 with

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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 non-

cognizable. 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.

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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 for

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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 10th 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 any

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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 the

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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,

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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 Andhra

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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 the

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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.

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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 non-

bailable 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

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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

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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 to

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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.

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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:-

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"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 purposes

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enumerated in the relevant provisions-

Sections 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 by

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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 498A

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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 respondents

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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 in

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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 the

Reportable

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 under

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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 to

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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.