# Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat and Others

- **Citation:** [1954] 1 S.C.R. 930
- **Court:** Supreme Court of India
- **Decided:** 1951-06-26
- **Case number:** Criminal Application No. 345 of 1951
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-sri-sri-kishore-chandra-singh-deo-v-babu-ganesh-prasad-bhagat-and-others-284
- **Pages:** 3

## Headnote

1954
Sri Sri Sri
Kishore Chandra
Singh Deo
v.
Babu Ganesh
Prasad Bhagat
and Others.
Venkatarama
Ayyar J.
1954
March 10.
930
SUPREME COURT REPORTS
[1954]
representatives
who are prosecuting them.
The property mortgaged
is an estate governed by the Madras
Impartible Estates Act II of 1904.
The plaintiffs alleged in their plaint that the mortgage was binding on
the estate under section 4 of the Act.
Issue 6 was
framed with reference to this allegation, and the finding of the trial court was that it was not binding on
the estate.
But on appeal, the High Court held that
the questior,
could not be gone into in a suit laid
against the mortgagor.
It accordingly discharged the
finding, an<'1 left the question open to
be
determined
in other Jud appropriate
proceedings.
In view
of
this, we direct that the parties do bear their own costs
in this court.
Appeals dismissed
YUSUF ABDUL AZIZ
v.
THE STATE OF BOMBAY AND
HUSSEINBHOY LALJEE.
[MEHR
CHAND
MAHAJAN
C.
J.,
MuKHERJEA,
S. R. DAs, VIVIAN
BosE and GHULAM
HASAN. JT.]
Constitution
of
India, arts. 14
and 15-Section 497 of the
Indian Penal Code (Act XLV of 1860)-Whether ultra vires
the
Constitution.
Held, that s. 497 of the Indian Penal Code does not offend
arts. 14 and 15 of the Constitution.
CRIMINAL
APPELLATE
JuR1sn1cnoN :
Case No. 349
of 195 l.
Appeal under article 132 ( 1)
of the Constitution of
India from the Judgment and Order dated the 26th
June,
1951, of
the High Court of . Judicature
at
Bombay (Chagla c. J. and Gajendragadkar
J.)
m
Criminal Application No. 345 of 1951.
A. A· Peerbhoy, Jindra Lal and I. N. Shroff for the
appellant.
M. C. Setalvad, Attorney-General for
India, and
C.
K. Daphtary, Solicitor-General for
India
(Porus
A. Mehta, with them) for respondent No. 1.
•
I
..
•
?
'
S.C.R.
\
SUPREME COURT REPORTS
931
, . '/. B. Dadachanji and Rajinder Narain for respondent No. 2.
1954. March 10. The Judgment of the . Court was
delivered by
BosE J.-The question in this case is whether section 497 of the Indian Penal Code contravenes articles
14 and 15 of the. Constitution.
The appellant is being prosecuted for adultery under
section 497 of the Indian Penal
Code. As soon as the
complaint was filed he applied to the High Court of
Bombay
to
determine
the constitutional question
mentioned
above
under article .228 of the Constitution.
The
High Court decided
against
him but
granted him a certificate
under articles 132 (1) and
134 (1) (c).
Under section 497 the offence of adultery can only
be committed by a man but in the absence of , any ·
provision to
the contrary the woman would be punishable as an abettor.
The last sentence in section 497
prohibits this.
It runs-
"In · such case the wife shall not be punishable as
an
abettor."
It is said that this offends articles 14
and J5.
· -
The ·portion of article 15 on which the appellant
relies is this:
'
"The State shall not discriminate against any citizen
on grounds only of. ......... sex."
But what he overlook; is that that is subject to
clause (3) which runs-
"Nothing in this article
shall . prevent the
State
from making 'any special provision' for 'jVOmen .......... "
The provision complained of is a special provision
and it is made for women, therefore it is saved by
clause (3).
It was argued
provisions- which
be used
td give
crimes.
We are
into
the clause;
•
'that clause (3) should be confined to
are beneficial to women and cannot
them a licence to commit and abet
. unable to read any sucli restriction
nor are we able to agree that a
\
•
1954
Yusef Abdul. Aziz
V•
The State ef
Bombay and'
Husstinbhoy
Laljee.
Bose].
•
·-.- -·· .
•
•
:~
1954
rusuf Ahdul 4.ziz
"·
The State of
Bombay and
Husseir,bhoy
l.Aljee.'
\ Bo"].
932
SUPREME COURT REPORTS
[1954]
prov1S1on which prohibits punishment is tentamount
to a licence to corp.mit the offence of which punishment has been prohibited.
Article 14 is general and must be read with the
other provisions which set out
the ambit of fundamental rights.
Sex is a sound classification
and although there can be no

## Text

1954
Sri Sri Sri
Kishore Chandra
Singh Deo
v.
Babu Ganesh
Prasad Bhagat
and Others.
Venkatarama
Ayyar J.
1954
March 10.
930
SUPREME COURT REPORTS
[1954]
representatives
who are prosecuting them.
The property mortgaged
is an estate governed by the Madras
Impartible Estates Act II of 1904.
The plaintiffs alleged in their plaint that the mortgage was binding on
the estate under section 4 of the Act.
Issue 6 was
framed with reference to this allegation, and the finding of the trial court was that it was not binding on
the estate.
But on appeal, the High Court held that
the questior,
could not be gone into in a suit laid
against the mortgagor.
It accordingly discharged the
finding, an<'1 left the question open to
be
determined
in other Jud appropriate
proceedings.
In view
of
this, we direct that the parties do bear their own costs
in this court.
Appeals dismissed
YUSUF ABDUL AZIZ
v.
THE STATE OF BOMBAY AND
HUSSEINBHOY LALJEE.
[MEHR
CHAND
MAHAJAN
C.
J.,
MuKHERJEA,
S. R. DAs, VIVIAN
BosE and GHULAM
HASAN. JT.]
Constitution
of
India, arts. 14
and 15-Section 497 of the
Indian Penal Code (Act XLV of 1860)-Whether ultra vires
the
Constitution.
Held, that s. 497 of the Indian Penal Code does not offend
arts. 14 and 15 of the Constitution.
CRIMINAL
APPELLATE
JuR1sn1cnoN :
Case No. 349
of 195 l.
Appeal under article 132 ( 1)
of the Constitution of
India from the Judgment and Order dated the 26th
June,
1951, of
the High Court of . Judicature
at
Bombay (Chagla c. J. and Gajendragadkar
J.)
m
Criminal Application No. 345 of 1951.
A. A· Peerbhoy, Jindra Lal and I. N. Shroff for the
appellant.
M. C. Setalvad, Attorney-General for
India, and
C.
K. Daphtary, Solicitor-General for
India
(Porus
A. Mehta, with them) for respondent No. 1.
•
I
..
•
?
'
S.C.R.
\
SUPREME COURT REPORTS
931
, . '/. B. Dadachanji and Rajinder Narain for respondent No. 2.
1954. March 10. The Judgment of the . Court was
delivered by
BosE J.-The question in this case is whether section 497 of the Indian Penal Code contravenes articles
14 and 15 of the. Constitution.
The appellant is being prosecuted for adultery under
section 497 of the Indian Penal
Code. As soon as the
complaint was filed he applied to the High Court of
Bombay
to
determine
the constitutional question
mentioned
above
under article .228 of the Constitution.
The
High Court decided
against
him but
granted him a certificate
under articles 132 (1) and
134 (1) (c).
Under section 497 the offence of adultery can only
be committed by a man but in the absence of , any ·
provision to
the contrary the woman would be punishable as an abettor.
The last sentence in section 497
prohibits this.
It runs-
"In · such case the wife shall not be punishable as
an
abettor."
It is said that this offends articles 14
and J5.
· -
The ·portion of article 15 on which the appellant
relies is this:
'
"The State shall not discriminate against any citizen
on grounds only of. ......... sex."
But what he overlook; is that that is subject to
clause (3) which runs-
"Nothing in this article
shall . prevent the
State
from making 'any special provision' for 'jVOmen .......... "
The provision complained of is a special provision
and it is made for women, therefore it is saved by
clause (3).
It was argued
provisions- which
be used
td give
crimes.
We are
into
the clause;
•
'that clause (3) should be confined to
are beneficial to women and cannot
them a licence to commit and abet
. unable to read any sucli restriction
nor are we able to agree that a
\
•
1954
Yusef Abdul. Aziz
V•
The State ef
Bombay and'
Husstinbhoy
Laljee.
Bose].
•
·-.- -·· .
•
•
:~
1954
rusuf Ahdul 4.ziz
"·
The State of
Bombay and
Husseir,bhoy
l.Aljee.'
\ Bo"].
932
SUPREME COURT REPORTS
[1954]
prov1S1on which prohibits punishment is tentamount
to a licence to corp.mit the offence of which punishment has been prohibited.
Article 14 is general and must be read with the
other provisions which set out
the ambit of fundamental rights.
Sex is a sound classification
and although there can be no discrimination in genera 1 on
that
ground,
the
Constitution
itself
provides
for
special provisions in the case of women and children.
The two articles read together validate the impugned
clauk in section 497 of the Indian _Penal Code.
The appellant
is
not a citizen GC India. It was
argued that he could not invoke articles
14 and 15
for
that reason.
The High Court held otherwise. It
is not necessary for us to decide this question in view
of our decision on the other issue.
The appeal is dismissed.
Appeal dismissed.
Agent for respondent No. l : R. H. Dhebar.
GIPN-52-96 S.C. India/59-25-I0-61-l,OOO.
' •-