# 9 S.C.R. 453 ,. A. SUBASH BABU v. STATE OF A.P.& ANR

- **Citation:** [2011] 9 S.C.R. 453
- **Court:** Supreme Court of India
- **Decided:** 2011-07-21
- **Case number:** Criminal Appeal No. 1428 of 2011
- **Bench:** J.M. Panchal, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-s-c-r-453-a-subash-babu-v-state-of-a-p-anr-27731
- **Pages:** 38

## Headnote

PENAL CODE, 1860:
ss. 494 and 495, rlw s. 198(1),Cr.P.C. - Bigamy with c
concealment of factum of existing marriage -'Person
aggrieved'- Husband governed by Hindu Law - Complaint
by second wife - Maintainability of - Held: Where second wife
"
alleges that the accused husband had married her according
to Hindu rites despite the fact that he was already married to
D
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 s. 198 Cr. P.C. - Section 494
/PC does not restrict the right of filing complaint to the first
wife and there is no reason to read the said section in a
E
restricted manner - The complaint can also be filed by the
person with whom the second marriage takes place which is
void by reason of its taking place during the life of the first
wife - Besides, until the declaration contemplated by s. 11 of
.....
Hindu Marriage Act is made by competent court, the woman
F
with whom the second marriage is solemnized continues to
be the wife within the meaning of s. 494 /PC and would be
entitled to maintain a complaint against her husband for
offences punishable ulss 494 and 495 /PC - Code of
f
Criminal Procedure, 1973 - s. 198 (1) - Hindu Marriage Act,
G
• 1955 - s. 1-1 .
ss. 494, 495, 498A, 417 and 420- Complaint by second
wife against the husband -
High Court quashing the
proceedfng'S'pending before the Judicial Magistrate as
/
453
H
454
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A regards s. 498A holding that the complainant was not wife
within the meaning of s. 498A and was not entitled to maintain
the complaint under the said provision - HELD: High Court
was not at all justified in its order- The conclusion of the High
Court is such as to shake the conscience and sense of justice
B - Even in the absence of challenge either by the State or the
complainant, in exercise of power under article 136, that part
of the judgment of the High Court by which the complaint for
offence punishable uls 498A filed by the second wife is
quashed by the High Court is set aside and the charge-sheet
·C submitted by the 10 shall stand revived - Constitution of India,
1950 - Article 136.
CODE OF CRIMINAL PROCEDURE, 1973
s. 156 rlw s.198 and First Schedule (as amended by
D Andhra Pradesh Act 3 of 1992) -Offences punishable ulss
494 and 495 !PC made cognizable and non-bailable in the
State of Andhra Pradesh - Held: The amendment made shall
prevail in the State of Andhra Pradesh notwithstanding the fact
that in the Code of Criminal Procedure, offences ulss 494 and
E 495 are treated as non-cognizable offences - Once First
Schedule to the Code of Criminal Procedure, 1973 stands
amended and offences punishable u/ss 494 and 495 /PC are
made cognizable offences, those offences will have to be
regarded as cognizable offences in the State of Andhra
F Pradesh for all purposes of the Code of Criminal Procedure,
1973 including for the purpose of s.198 thereof - Therefore,
as the offences have been made cognizable offences in the
State of Andhra Pradesh, the same will have to be dealt with
as provided ul s 156 CrPC - Constitution of India, 1950 -
G Articles 246 (2), 254 (2), 254 (4) - Seventh Schedule - List
Ill, Entry 2.
H
s. 155( 4) - Case relating to two or more offences of which
at least one is cognizable - Held: If the police files a chargesheet in such a case, the court can take cognizance also of
I •
A. SUBASH BABU v. STATE OF A.P.& ANR.
·455
non-cognizable offence along with the cognizable offe~ce by
virtue ofs. 155 (4).
A
CONSTITUTION OF IND/A, 1950:
/'
Articles 246 (2) and 254 (2) - Seventh Schedule - List B
Ill, Entry 2- By Andhra Pradesh Act 3of1992, First Schedule
to Cr. PC amended and ss. 494 and 495 /PC made
cognizable and non-bailable in the State of Andhra Pradesh
- Held: If a law passes a test of Clause (2) of Article 254, it
will make Clause (1) inapplicable to it - To the general rule
laid down in Clause (1), Clause (2) engrafts an exception, viz. c
if the Pr

## Text

_Characters 0–39,740 of 77,676. This is a partial read: ask again with offset=39740 for what follows._

[2011) 9 S.C.R. 453
,.
A. SUBASH BABU
A
v.
STATE OF A.P.& ANR.
(Criminal Appeal No. 1428 of 2011)
~f \\
JULY 21, 2011
B
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]
PENAL CODE, 1860:
ss. 494 and 495, rlw s. 198(1),Cr.P.C. - Bigamy with c
concealment of factum of existing marriage -'Person
aggrieved'- Husband governed by Hindu Law - Complaint
by second wife - Maintainability of - Held: Where second wife
"
alleges that the accused husband had married her according
to Hindu rites despite the fact that he was already married to
D
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 s. 198 Cr. P.C. - Section 494
/PC does not restrict the right of filing complaint to the first
wife and there is no reason to read the said section in a
E
restricted manner - The complaint can also be filed by the
person with whom the second marriage takes place which is
void by reason of its taking place during the life of the first
wife - Besides, until the declaration contemplated by s. 11 of
.....
Hindu Marriage Act is made by competent court, the woman
F
with whom the second marriage is solemnized continues to
be the wife within the meaning of s. 494 /PC and would be
entitled to maintain a complaint against her husband for
offences punishable ulss 494 and 495 /PC - Code of
f
Criminal Procedure, 1973 - s. 198 (1) - Hindu Marriage Act,
G
• 1955 - s. 1-1 .
ss. 494, 495, 498A, 417 and 420- Complaint by second
wife against the husband -
High Court quashing the
proceedfng'S'pending before the Judicial Magistrate as
/
453
H
454
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A regards s. 498A holding that the complainant was not wife
within the meaning of s. 498A and was not entitled to maintain
the complaint under the said provision - HELD: High Court
was not at all justified in its order- The conclusion of the High
Court is such as to shake the conscience and sense of justice
B - Even in the absence of challenge either by the State or the
complainant, in exercise of power under article 136, that part
of the judgment of the High Court by which the complaint for
offence punishable uls 498A filed by the second wife is
quashed by the High Court is set aside and the charge-sheet
·C submitted by the 10 shall stand revived - Constitution of India,
1950 - Article 136.
CODE OF CRIMINAL PROCEDURE, 1973
s. 156 rlw s.198 and First Schedule (as amended by
D Andhra Pradesh Act 3 of 1992) -Offences punishable ulss
494 and 495 !PC made cognizable and non-bailable in the
State of Andhra Pradesh - Held: The amendment made shall
prevail in the State of Andhra Pradesh notwithstanding the fact
that in the Code of Criminal Procedure, offences ulss 494 and
E 495 are treated as non-cognizable offences - Once First
Schedule to the Code of Criminal Procedure, 1973 stands
amended and offences punishable u/ss 494 and 495 /PC are
made cognizable offences, those offences will have to be
regarded as cognizable offences in the State of Andhra
F Pradesh for all purposes of the Code of Criminal Procedure,
1973 including for the purpose of s.198 thereof - Therefore,
as the offences have been made cognizable offences in the
State of Andhra Pradesh, the same will have to be dealt with
as provided ul s 156 CrPC - Constitution of India, 1950 -
G Articles 246 (2), 254 (2), 254 (4) - Seventh Schedule - List
Ill, Entry 2.
H
s. 155( 4) - Case relating to two or more offences of which
at least one is cognizable - Held: If the police files a chargesheet in such a case, the court can take cognizance also of
I •
A. SUBASH BABU v. STATE OF A.P.& ANR.
·455
non-cognizable offence along with the cognizable offe~ce by
virtue ofs. 155 (4).
A
CONSTITUTION OF IND/A, 1950:
/'
Articles 246 (2) and 254 (2) - Seventh Schedule - List B
Ill, Entry 2- By Andhra Pradesh Act 3of1992, First Schedule
to Cr. PC amended and ss. 494 and 495 /PC made
cognizable and non-bailable in the State of Andhra Pradesh
- Held: If a law passes a test of Clause (2) of Article 254, it
will make Clause (1) inapplicable to it - To the general rule
laid down in Clause (1), Clause (2) engrafts an exception, viz. c
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
•
the Union - Code of Criminal Procedure (Andhra Pradesh
Second Amendment) Act, 1992 (A.P. Act 3of1992) received D
\the assent of the President - Constitutional law - Rule of
repugnancy.
Article 136 - Scope of - Held: The power under Article
136 is plenary power exercisable outside the purview of E
ordinary law to meet the demand of justice - It ,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 - Supreme Court
" ""'
while entertaining an appeal by grant of special leave has
power to mould relief in favour of the respondents
F
notwithstanding the fact that no appeal is filed by any of the
respondents challenging that part of the order which is against
them - Further, the power can be exercised by Supreme
!
Court in favour of a party even suo motu when it is satisfied
G
that compelling grounds of its exercise exist.
A complaint was filed against the appellant, a SubInspector of Police, that by representing to the
complainant (respondent no. 2) and her parents that his
first wife had died leaving behind two children, he married
H
456
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A with the complainant on 9.10.1994; that the appellant
collected Rs.28,000/· from the father of the complainant
and further demanded a sum of Rs.20,000/- from him,
1
which he declined and the appellant threatened the
complainant and her father with dire consequences. The .
B FIR was lodged on 26.5.1995. A charge-sheet was
submitted in the court of Judicial Magistrate for
commission of offences punishable u/ss 494, 495, 417,
420 and 498-A IPC. In the petition filed by the appellant
seeking to quash the proceedings against him, the High
c Court held that as respondent no. 2 was the second wife
and prima facie the marriage between her and the
appellant was void, no offence punishable u/s 498-A IPC
was made out. However, the High Court sustained the
proceedings as regards other offences.
D
In the instant appeal filed by the husband, it was
. contended for the appellant th1t the Magistrate could not
have taken cognizance of offences punishable u/ss. 494
and 495 IPC on the basis of the police report submitted !
by the Investigating Officer because though the State ·
E legislation amended the First Schedule to the Code of
Criminal Procedure, 1973 by making the offences
punishable u/ss. 494 and 495 IPC cognizable, the
legislation made by Parliament in respect of s.198 of the
Code of Criminal Procedure remained the same and in
F the event of any repugnancy between the two
legislations, the legislation made by Parliament would
prevail; that the High Court failed to notice that u/s
198(1)(c) CrPC only a legally wedded wife or someone on
her behalf as mentioned in the said section could make
G a complaint to Magistrate for the offences punishable u/
ss. 494 and 495 IPC and as, in the instant case, the
complaint was made by respondent no. 2 who was
claiming to be the second wife of the appellant and that
too to the police and not in the court, the proceedings
H
.,
•
..
A. SUBASH BABU v. STATE OF A.P.& ANR.
457
.nitiated for alleged commission of those offences should
A
nave been quashed. [para 7]
Disposing of the appeal, the Court
HELD: 1.1 It cannot be said that respondent no. 2 is
not an aggrieved person so far as commission of B
offences punishable u/ss. 494 and 495 IPC is concerned.
As far as s.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 c
during the life of such husband or wife. When a law, such
as s.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 s.5 (i) of the said
Act, it brings/attaches several legal disabilities to the o
woman with whom the second marriage Js performed.
[para 10) [472-H; 473-A-E-G]
S.Radhika Sameena Vs. Station House Officer, 1997
Criminal Law Journal 1655 - referred to.
1.2 Section 494 IPC is intended to achieve laudable
object of monogamy. This object can be achieved only
E
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. Non-filing
F
of the complaint u/s 494 IPC by the first wife does not
mean that the offence is wiped out and monogamy
sought to be achieved by means of s. 494 merely remains
in statute book. Having regard to the scope, purpose,
,
context and object of enacting s.494 and also the
• prevailing practices in the society sought to be curbed G
by it, there is no manner of doubt that the complainant
should be an aggrieved person. [para 10] [474-E-H; 475A-B]
1.3 Section 198(1 )(c) of the Cr.P.C., amongst other
H
458
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A things, provides that where the person aggrieved by an
offence punishable u/s 494 or s.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,
E;
marriage or adoption. [para 10] [475-A-C]
Gopa/ Lal Vs. State of Rajasthan (1979) 2 SCC 170 -
referred to.
1.4 Though s. 11 of the Hindu Marriage Act provides
C that any marriage solemnized, if it contravenes the
conditions specified in Clause (i) of s. 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
D 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 s.11 of the Hindu Marriage Act will
E have to be asked for, for the purpose of precaution and/
or record. Therefore, until the declaration contemplated
by s.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
F of s. 494 IPC and would be entitled to maintain a
complaint against her husband. [para 1 OJ [475-C-F]
1.5 Even otherwise, the second wife suffers several
legal wrongs and/or legal injuries when the second
marriage is treated as a nullity by the husband arbitrarily,
G without recourse to the court or where declaration
sought is granted by a c·ompetent 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
H
...
I •
i.
•
'
-
A. SUBASH BABU v. STATE OF A.P.& ANR.
459
rneaning depends on diverse, variable factors such as
A
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. [para 1 O] [475-G-H; 476-A·
B
B]
1.6 Section 494 IPC 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; nor does it say
C
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
D
whom second marriage takes place which is void by
reason of its taking place during the life of first wife. [para
10] [476·8-D]
1.7 A bare reading of the complaint, in the instant E
case, together with statutory provisions, makes it
abundantly clear that the appellant having a wife living,
married with respondent no. 2 by concealing from her the
fact of former marriage and, therefore, her complaint
against the appellant for commission of offence
F
punishable u/ss 494 and 495 IPC is, maintainable and
cannot be quashed on this ground. [para 10] [476-E]
1.8 Section 495 IPC provides that if a person
committing the offence defined in s. 494 IPC conceals
from the person with whom subsequent marriage is G
contracted, the fact of the former marriage, the said
person is liable to be punished as provided therein. The
offence mentioned in s.495 is an aggravated form of
bigamy provided in s. 494. The circumstance of
aggravation is the concealment of the fact of the former
H
460
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A marriage to the person with whom the second marriage
is contracted. Since the offence u/s 495 is in essence
bigamy, it follows that all the elements necessary to
constitute that offence must be present here also. Section
495 begins with the words "whoever commits the offence
B defined in the last preceding Section ... " The reference to
s.494 in s.495 makes it clear that s.495 IPC is extension
of s.494 and part and parcel of it. The concealment
spoken of in s.495 would be from the woman with whom
the subsequent marriage is performed. Therefore, the
,.... wife with whom the subsequent marriage is contracted
>J after concealment of former marriage would also be
entitled to lodge complaint for commission of offence
punishable u/s 495. [para 11) [476-G-H; 477-A-D]
1.9 Where the second wife alleges that the accused
D 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 s. 198 Cr. P.C. If the woman with
E whom the second marriage is performed by concealment
of former marriage is entitled to file a complaint for
commission of offence u/s 495, there is no reason why
she would not be entitled to file complaint u/s 494 more
particularly when s.495 IPC is extension and part and
F parcel of s.494. [para 11) [477-0-F]
1.10 Therefore, it is held that the woman with whom
second marriage is contracted by suppressing the fact
of former marriage would be entitled to maintain
G complaint against her husband u/ss 494 and 495 IPC.
[para 11] [477-G]
2.1 Part I of the First Schedule to the Code of Criminal
Procedure relating to offences under the Penal Code inter
alia mentions that ss. 494 and 495 are non-cognizable. As
H ss. 494 and 495 are made non-cognizable, a Police Officer
j
'
A. SUBASH BABU v. STATE OF A.P.& ANR.
461
i111ould not have power to investigate those cases without A
the order of a Magistrate, having a power to try such ·
cases or commit such cases for trial as provided u/s
155(2) of the Code. However, the Legislative Assembly of
the State of Andhra Pradesh enacted the Code of
Criminal
Procedure
(Andhra
Pradesh
Second
B
Amendment) Act, 1992, by which the First Schedule to the
Code of Criminal Procedure came to be amended and the
offences punishable u/ss. 494 and 495 IPC were made
cognizable and non-bailable in the State. What is relevant
to be noticed is that the Code of Criminal Procedure c
(Andhra Pradesh Second Amendment) Act, 1992 was
reserved by the Governor of Andhra Pradesh for
consideration and assent of the President. After the
Presidential assent was received, the Amending Act of
1992 was published in the Andhra Pradesh Gazette Part 0
IV•B (Ext.). Thus, ss. 494 and 495 IPC are cognizable
offences so far as State of Andhra Pradesh is concerned.
[para 13] [478-G-H; 479~C-H; 480-A]
Mavuri Rani Veera Bhadranna Vs. State of A.P. and Anr.
2007 (1) ALO (Crl.) 13 (A.P.) - disapproved.
E
2.2 The 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
F
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 G
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
H
462
SUPREME COURT REPORTS
[2011] 9 S.C.R.
P. which is inconsistent with a Central law or an existing law.
[para 14] [480-H; 481-A-D]
2.3. Once First Schedule to the Code of Criminal
Procedure, 1973 stands amended and offences
B punishable u/ss 494 and 495 IPC are made cognizable
offences, those offences will have to be regarded as
cognizable offences in the State of Andhra Pradesh for
all purposes of the Code of Criminal Procedure, 1973
including for the purpose of s.198 thereof. Section
C 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 u/ss. 494 and
495 IPC have been made cognizable so far as the State
of Andhra Pradesh is concerned. Consequently, the bar
D imposed by operative part of sub-s. (1) of s. 198 CrPC
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
E far as offences punishable u/s 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 s.156 CrPC.[para 14) [482-0-H; 483-A-C]
F
2.4. Even otherwise, 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-s.(2) of s.155 CrPC and that
G is the intention of legislation which is manifested in
s.155(4) CrPC. The Division Bench of the High Court has
considered the effect of s. 155(4) CrPC and thereafter held
that the bar u/s. 198 would not be applicable as the
complaint lodged before police for offence punishable
u/s 494 IPC also related to other cognizable offences and
H
' .
..
..
•
A. SUBASH BABU v. STATE OF A.P.& ANR.
463
if police· files a charge sheet, the court can take· A
::ognizanc~ also of offence u/s 494 along with other
cognizable offences by virtue of s.155 (4) CrPC. [para 14]
[483-D-H; 484-A-C]
2.5. In the instant case, in the charge sheet it is
8
mentioned that the appellant has also committed offence
punishable u/s 420 IPC 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 nonC
cognizable. [para 15) (484-E-F]
3.1 The High Court was not justified at all in quashing
the proceedings initiated against the appellant u/s 498A
IPC on the ground that respondent no. 2 was not wife
D
within the meaning of s.498A and was not entitled to
maintain complaint under the said provision. In view of.
the salutary provisions of Article 141 of the Constitution,
the law declared by this Court in the case of Reema
Aggarwal* was binding on all courts including the single
E
Judge of the High Court, who decided the instant case.
The High Court has completely misdirected itself in
quashing the proceedings for the offence punishable u/
s 498A of IPC. The finding recorded by the High Court that
respondent no. 2 is not the wife within the meaning of s.
F
498A IPC runs contrary to law declared by this Court in
case of Reema Aggarwal. [para 18) [487-D-G]
* Reema Aggarwal Vs. Anupam and others 2004 (1)
SCR 378 = (2004) 3 sec 199 - relied on.
3.2 There may be several reasons due to which the
State might not have challenged that part of the Judgment
of the single Judge by which he quashed the complaint
filed by respondent no. 2 u/s 498A IPC. So also because
G
of several reasons such as want of funds, distance, nonH
464
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A availability of legal advice, etc. the original complainant
might not have approached this Court to ch~llenge that
part of the judgment of the single Judge which is quite
contrary to the law declared by this Court. However, this
Court while entertaining an appeal by grant of special
B 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
0 in absence of any appeal against illegal order passed by
the High Court the relief should not be appropriately
moulded or that the finding recorded should not be upset
by this Court. [para 18] [487-G-H; 488-A-D]
Chandrakant Patil Vs. State 1998 (1) SCR 447 =(1998)
E 3 SCC 38 - relied on.
3.3. It is the firm proposition of law that while
exercising appellate jurisdiction, the Supreme Court has
power to pass any order. The power under Article 136 is
F 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. This Court feels that absence of challenge either by
State or by the original complainant should not prevent
G this Court from doing justice between the parties by
restoring the complaint filed by respondent no. 2 u/s 498A
IPC on the file of the 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
H
..
A. SUBASH BABU v. STATE OF A.P.& ANR.
465
the offence punishable uls 498A, irrespective of A
technicalities. The judgment of the High Court quashing
the proceedings initiated by the Magistrate for
commission of offence punishable uls 498A is tainted
with serious legal infirmities and is founded on a legal
construction which is wrong. [para 19] [489-A-F]
B
3.4. 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 C
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 i11 its
amplitude. [para 19] [489-G-H; 490-A]
Ramakant Rai Vs. Madan Rail 2003 (4) Suppl. SCR 17
D
= (2003) 12 SCC 395; Arunachalam Vs. P.S.R. Sadanatham
1979 (3) SCR 482 = (1979) 2 sec 297 and P. S.R.
Sadanatham Vs. Arunchalam (1980) 3 SCC 141 - followed
3.5. Further, the powers under Article 136 can be
E
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
F
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 G
• 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
H
466
SUPREME COURT REPORTS
[2011] 9 S.C.R.
;.,
leave under Article 136 of the Constitution. (para 19] (490A·D]
3.6. Therefore, that part of the impugned judgment by
which the complaint filed by respondent no. 2 u/s 498A
' .
13
IPC is quashed by the High Court is set aside and the
' •
complaint lodged by respondent no. 2 u/s 498A IPC as
well as charge sheet submitted by the Investigating
Officer for the same shall stand restored/revived. [para
20-21] (490-E·G]
c
D
E
F
Case Law Reference:
2007 (1) ALO (Crl.) 13 (A.P.)
disapproved para 5
1997 Criminal Law Journal 1655 referred to
para 5
(1979) 2 sec 110
2004 (1 ) SCR 378
2004 (1 ) SCR 378
1998 (1) SCR 447
1998 (1) SCR 447
2003 (4) Suppl. SCR 17
1979 ( 3 ) SCR 482
(1980) 3 sec 141
referred to
para 10
relied on
relied on
relied on
relied on
followed
followed
followed
para 16
para 16
para 19
para 19
para 19
para 19
para 19
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1428 of 2011.
From the Judgment & Order dated 26.02.2010 of the High
•
G Court of Andhra Pradesh at Hyderabad in Crl. P. No. 2426 of ..
2005.
H
D. Rama Krishna Reddy, D. Bharathi Reddy for the
Appellant.
A. SUBASH BABU v. STATE OF A.P.& ANR.
467
·~
Gaurav Pachnanda, Sidhant Goel, Raheel Kohli, Y. Ali, D.
A
Mahesh Babu, P. Venkat Reddy, Anil Kumar Tandale for the
Respondents.
The Judgment of the Court was delivered by
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
B
in Criminal Petition No. 2426 of 2005 by which the prayer c
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
D
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
E
F
the respondent no. 2 is that the appellant had collected total
amount of Rs.28,000/- from her father towards hand loan on the
G
~ • false plea that he was co~structing 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.
H
468
SUPREME COURT REPORTS
[2011] 9 S.C.R
A 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
B 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
c 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.
,..
D
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, RR.District at Kothapet, Sarunagar for
E 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
F 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
G 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
H of 2001 filed by the appellant in which similar reliefs as claimed
A. SUBASH BABU v. STATE OF A.P.& ANR.
[J.M. PANCHAL, J.]
469
·in Criminal Petition No. 2426 of 2005, were claimed, was
A
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
B
the person aggrieved by alleged commission of offences under c
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
0
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
E
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
F
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 !PC, the
proceedings initiated for alleged commission of the offences
G
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
H
470
SUPREME COURT REPORTS
[2011] 9 S.C.R.
..
A ·the Judgment of Division Bench of Andhra Pradesh High Court
••
in Mavuri Rani Veera Bhadranna Vs. State of A.P. and Anr.
2007 (1) ALO (C~I.) 13 (A.P.) and concluded that the Division
Bench in Mavur/ Rani Veera Bhadranna (supra) had taken
note of the fact that the offence punishable under Section 494
B 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
c said offence on report filed by the police. Having so concluded
the Division Bench proceeded 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
D 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
E 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
F
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
G 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
H IPC is concerned, whereas the prayer made by the appellant
A. SUBASH BABU v. STATE OF A.P.& ANR.
471
[J.M. PANCHAL, J.]
to quash the proceedings insofar as the offences punishable
A
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
8
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
C
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 D
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
E
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
F
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
G
'
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
H
472
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A 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
B 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
C 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
D (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,
E was justified in lodging FIR with the police and the police after
investigation, was justified in submitting charge sheet cm 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
F 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
G 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.
H
10. The contention that the respondent no. 2 is not an
A. SUBASH BABU v. STATE OF A.P.& ANR.
473
[J.M. PANCHAL, J.]
.
_,
aggrieved person so far as commission of offences punishable
A
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
B
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."
c
Whereas Section 495 of the IPC is as follows:-
"Whoever commits the offence defined in the last preceding
,J
section having concealed from.the person with whom the
subsequent marriage is contracted, the fact of the former
D
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
E
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.