498A Queash and Article 136 of the Constitution

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 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
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
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
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 ment ioned 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 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 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 procee ded to quote part of the Judgment in Mavuri Rani
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 there fore, 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
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
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 t he 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
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 f or 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).

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 ligh t 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.

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.”

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.

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
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 s ociety 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,
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 obligati on 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 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 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.

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 f rauds known to law
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 m arriage 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 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
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 Lis t 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
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.
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
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
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
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,
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 Centra l 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
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. On ce 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
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 Crimi nal 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.
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
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
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 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 cou ld 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.

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 th at 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:-

“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
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
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
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
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
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 supplem ent 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
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 of fence 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 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 t hat 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 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 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.M. Panchal]

[H.L. Gokhale]
New Delhi;
July 21, 2011.

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