A. SUBASH BABU v. STATE OF A.P & Anr.

A complaint was filed against the appellant, a Sub- Inspector 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 E 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 · 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 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 F 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. E

1.2 Section 494 IPC 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. 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; 475- A-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 j ' 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 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] >J

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 A. SUBASH BABU v. STATE OF A.P.& ANR. 461 (Andhra Pradesh Second B 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 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 H

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 ' . .. .. 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 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 non- C cognizable. [para 15) (484-E-F] 8

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. G

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 of several reasons such as want of funds, distance, non- H • .. 464 SUPREME COURT REPORTS [2011] 9 S.C.R. B 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 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 or that the finding recorded should not be upset by this Court. [para 18] [487-G-H; 488-A-D] 0 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