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Friday, July 22, 2011

SECOND WIFE CAN FILE CASE, UNTIL HER MARRIAGE IS DECLARED VOID BY COMPETENT COURT., UNDER I.P.C.SECTIONS OF 498 A,494,495, AND ALSO IN A.P. POLICE AND COURT CAN TAKE COGNIZANCE AS THE A.P. AMENDMENT WAS APPROVED THE PRESIDENT. A NEW JUDGMENTS, RULING DOWN ALREADY SETTLED LAWS AND GIVING A NEW INTERPRETATION TO THE WOMEN LAWS.


                                                              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   by


                                                                 Reportable



        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


                                                                Reportable



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


                                                                   Reportable



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


                                                                     Reportable



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


                                                                  Reportable



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


                                                                    Reportable



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


                                                              Reportable



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


                                                                 Reportable



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


                                                                  Reportable



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


                                                                  Reportable



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 generally


                                                                Reportable



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 purpose


                                                              Reportable



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


                                                                  Reportable



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   law


                                                                Reportable



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


                                                                  Reportable



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


                                                                  Reportable



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


                                                                 Reportable



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.


                                                              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   for


                                                                 Reportable



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


                                                               Reportable



     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


                                                                  Reportable



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  Andhra


                                                              Reportable



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


                                                               Reportable



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   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


                                                              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  to


                                                                  Reportable



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   purposes


                                                                  Reportable



             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


                                                                 Reportable



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


                                                                  Reportable



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


                                                              Reportable



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


                                                               Reportable



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


                                                                  Reportable



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


                                                               Reportable



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.