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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

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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

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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

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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

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withdrawn by the appellant and therefore the petition was  

dismissed by the  High Court  vide  order  dated 09.04.2005  

reserving  liberty to the appellant to file a fresh petition in  

case of necessity. After  few  days  thereof,  the  appellant  

filed Criminal Petition No. 2426 of 2005 in the High Court for  

quashing  the  proceedings  in  the  Criminal  Case  pending  

before the learned Magistrate.  The record does not indicate  

as  to  why  Criminal  Petition  No.  812  of  2001  filed  by  the  

appellant  in  which  similar  reliefs  as  claimed  in  Criminal  

Petition No. 2426 of 2005, were claimed, was withdrawn and  

which  were  the  new/additional  circumstances/grounds  

which prompted the appellant  to file  Criminal  Petition No.  

2426 of  2005.   The said petition was filed mainly on the  

ground  that  the   proceedings  against  the  appellant  were  

registered for commission of above mentioned offences on the  

basis  of  charge  sheet  submitted  by  the  Sub-Inspector  of  

Police,  Women Police  Station,  Amberpet,  R.R.  District  and  

not on the basis of complaint made by the aggrieved person  

within the meaning of Section 198 of the Code.   According to  

the appellant the person aggrieved by alleged commission of

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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

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constituting offence under Section 417 IPC, the proceedings  

initiated  for  alleged  commission  of  the  offences  should  be  

quashed.

5. The High Court considered the submissions advanced  

at the Bar as well as the provisions of Sections 198(1)(c) of  

the Code of  Criminal  Procedure, Section 494 and 495 IPC  

and the Judgment of Division Bench of Andhra Pradesh High  

Court in  Mavuri Rani Veera Bhadranna Vs. State of A.P.  

and Anr. 2007 (1) ALD (Crl.) 13 (A.P.) and concluded that  

the  Division  Bench  in  Mavuri  Rani  Veera  Bhadranna  

(supra)  had  taken  note  of  the  fact  that  the  offence  

punishable under Section 494 IPC as amended by the State  

of Andhra Pradesh was made cognizable, and though there  

was  no  corresponding  amendment  to  Section  198  of  the  

Criminal  Procedure  Code,  the  investigating  agency  was  

entitled to investigate, and the Magistrate was not precluded  

from taking cognizance of the said offence on report filed by  

the  police.   Having  so  concluded  the  Division  Bench  

proceeded to  quote  part  of  the  Judgment  in  Mavuri  Rani

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Veera Bhadranna (supra) and after  noting contentions on  

behalf of the parties proceeded to consider the decision in the  

case  of  S.Radhika  Sameena  Vs.  Station  House  Officer,  

1997  Criminal  Law  Journal  1655 and  held  that  the  

decision  of  the  Division  Bench  in  Mavuri  Rani  Veera  

Bhadranna  (supra)  was  holding  the  field  with  regard  to  

competency of the police to file charge sheet and competency  

of  the  Magistrate  to  take  cognizance  of  the  offences  

punishable under Sections 494 and 495 IPC on the report  

filed by the police.  The High Court further concluded that  

taking cognizance of the offences punishable under Sections  

417, 420, 494 and 495 IPC was in accordance with law, but  

the victim i.e. the respondent no. 2 in the present case was  

second  wife  and  therefore  prima  facie  marriage  between  

appellant and the second respondent was void and therefore,  

offence under Section 498A IPC was not made out against  

the appellant.

6. In view of the above mentioned conclusions, the learned  

Single Judge of the High Court by the impugned Judgment

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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

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any repugnancy between the two legislations, the legislation  

made by the Parliament would prevail.  It was emphasized  

that Section 198 A inserted by Section 5 of  the Act 46 of  

1983 with effect from 25.12.83 provides that no Court shall  

take cognizance of an offence punishable under Section 498A  

of the Indian Penal Code except upon a police report of facts  

which constitute such offences or upon a complaint made by  

the person aggrieved by the offence or by her father, mother,  

brother,  sister  or by her father’s,  her mother’s,  brother  or  

sister  or  with the  leave  of  the  Court  by any other  person  

related  to  her  by  blood,  marriage  or  adoption,  but  no  

provision is  made to  enable  a  court  to  take  cognizance of  

offences  punishable  under  Sections  494  and  495  of  the  

Indian  Penal  Code  upon  police  report  and  therefore  the  

proceedings pending before the learned Magistrate in respect  

of  those offences should have been quashed.  Referring to  

Section  198(1)(c)   which  inter  alia  provides  that  no  Court  

shall  take  cognizance  of  an  offence  punishable  under  

Chapter  XX  of  the  Indian  Penal  Code  except  upon  a  

complaint made by a person aggrieved,  where the person

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aggrieved  by  an  offence  punishable  under  Section  494  or  

Section 495 of the Indian Penal Code, is the wife etc., it was  

pleaded that in the instant case no complaint was made to  

the Court but was made to the police and on the basis of  

charge  sheet,  the  Magistrate  had  taken  cognizance  of  the  

offences which is contrary to Section 198 of the Code and is  

illegal.  What was asserted was that the High Court failed to  

notice that under Section 198(1)(c) of the Criminal Procedure  

Code only a legally wedded wife or someone on her behalf as  

mentioned  in  the  said  Section  can  make  a  complaint  to  

Magistrate for the offences under Section 494 and 495 IPC  

and  as  admittedly  the  complaint  was  made  by  the  

respondent no. 2 who is claiming to be second wife of the  

appellant herein and that too to the police and not in the  

Court,  the  proceedings  initiated  for  alleged  commission  of  

those  offences  should  have  been  quashed.   In  support  of  

above  stated  contentions,  the  learned  Counsel  for  the  

petitioner  placed  reliance  on the  decision  in  Mavuri  Rani  

Veera Bhadranna (Supra).

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8. On  the  other  hand,  the  learned  Counsel  for  the  

respondents  argued  that  by  Code  of  Criminal  Procedure  

(Andhra Pradesh Second Amendment) Act, 1992, the offences  

under Sections 494 and 495 have been made cognizable in  

the State of Andhra Pradesh,  and therefore the respondent  

No. 2 who is aggrieved person so far as commission of  

offences  punishable  under  Sections  494  and  495  IPC are  

concerned, was justified in lodging FIR with the police and  

the  police   after  investigation,  was  justified  in  submitting  

charge sheet on the basis of which proceedings are pending  

before  the  learned  Magistrate  in  respect  of  alleged  

commission of offences by the appellant under Section 494,  

495, 417, 420 and 498A IPC. The contention by the learned  

Counsel for the respondents was that 198(1)(c) of the Code of  

Criminal Procedure will have to be read in the light of the  

amendment made in the Code by the State Legislature and  

therefore the learned Magistrate did not commit any error in  

taking cognizance of the offences on the basis of charge sheet  

submitted by the Investigating Officer.  

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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.”

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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.

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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

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used  to  have  more  than  one  wife.   Section  4,  of  Hindu  

Marriage Act nullifies and supersedes such practice all over  

India among the Hindus.  Section 494 is intended to achieve  

laudable object of monogamy.  This object can be achieved  

only  by  expanding  the  meaning  of  the  phrase  “aggrieved  

person”.  For variety of reasons the first wife may not choose  

to  file  complaint  against  her  husband  e.g.  when  she  is  

assured  of    re-union  by  her  husband,  when  husband  

assures to snap the tie of second marriage etc.  Non-filing of  

the complaint under Section 494 IPC by first wife does not  

mean that the offence is wiped out and monogamy sought to  

be achieved by means of Section 494 IPC merely remains in  

statute book.  Having regard to the scope, purpose, context  

and  object  of  enacting  Section  494  IPC  and  also  the  

prevailing  practices  in  the  society  sought  to  be  curbed by  

Section  494  IPC,  there  is  no  manner  of  doubt  that  the  

complainant  should  be  an  aggrieved  person.   Section  

198(1)(c)  of  the  Criminal  Procedure  Code,  amongst  other  

things,  provides  that  where  the  person  aggrieved  by  an  

offence under  Section 494 or Section 495 IPC is  the  wife,

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complaint  on  her  behalf  may  also  be  filed  by  her  father,  

mother,  sister,  son, daughter  etc.  or  with the  leave of  the  

Court, by any other person related to her by blood, marriage  

or adoption. In Gopal Lal Vs. State of Rajasthan (1979) 2  

SCC 170  this Court has ruled that in order to attract the  

provisions  of  Section  494  IPC  both  the  marriages  of  the  

accused  must  be  valid  in  the  sense  that  the  necessary  

ceremonies  required  by  the  personal  law  governing  the  

parties must have been duly performed.  Though Section 11  

of  the  Hindu  Marriage  Act  provides  that  any  marriage  

solemnized,  if  it  contravenes  the  conditions  specified  in  

Clause (i) of Section 5 of the said Act, shall be null and void,  

it  also  provides  that  such  marriage  may  on  a  petition  

presented by either party thereto, be so declared.  Though  

the law specifically does not cast obligation on either party to  

seek declaration of nullity of marriage and it may be open to  

the parties even without recourse to the Court to treat the  

marriage as a nullity, such a course is neither prudent nor  

intended  and  a  declaration  in  terms  of  Section  11  of  the  

Hindu Marriage Act will have to be asked for, for the purpose

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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

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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.   

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To hold that a woman with whom second marriage is  

performed  is  not  entitled  to  maintain  a  complaint  under  

Section 494 IPC though she suffers legal injuries would be  

height of perversity.

11.  Section 495 IPC provides that if a person committing  

the  offence  defined  in  Section  494  IPC conceals  from the  

person with whom subsequent marriage is  contracted,  the  

fact  of  the  former  marriage,  the  said  person  is  liable  to  

punished  as  provided  therein.   The  offence  mentioned  in  

Section 495 IPC is an aggravated form of bigamy provided in  

Section  494  IPC.   The  circumstance  of  aggravation  is  the  

concealment of the fact of the former marriage to the person  

with  whom the  second marriage  is  contracted.   Since  the  

offence under Section 495 IPC is in essence bigamy, it follows  

that  all  the  elements  necessary  to  constitute  that  offence  

must be present here also.  A married man who by passing  

himself  off  as  unmarried  induces  an  innocent  woman  to  

become, as she thinks his wife, but in reality his mistress,  

commits one of the grossest forms of frauds known to law

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and therefore severe punishment is provided in Section 495  

IPC.  Section 495 begins with the words “whoever  commits  

the offence defined in the last preceding Section........”   The  

reference to Section 494 IPC in Section 495 IPC makes it  

clear that Section 495 IPC is extension of Section 494 IPC  

and part  and parcel  of  it.   The concealment  spoken of  in  

Section 495 IPC would be from the woman with whom the  

subsequent marriage is performed.  Therefore, the wife with  

whom  the  subsequent  marriage  is  contracted  after  

concealment  of  former  marriage,  would also  be  entitled  to  

lodge complaint for commission of offence punishable under  

Section 495 IPC. Where second wife alleges that the accused  

husband had married her according to Hindu rites despite  

the fact that he was already married to another lady and the  

factum of  the  first  marriage  was  concealed  from  her,  the  

second  wife  would  be  an  aggrieved  person  within  the  

meaning of Section 198 Cr. P.C.  If the woman with whom  

the second marriage is performed by concealment of former  

marriage  is  entitled  to  file  a  complaint  for  commission  of  

offence under Section 495 IPC, there is no reason why she

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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

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and by the legislatures of State. Clause (1) of Article 246 inter   

alia  provides  that  notwithstanding  anything  contained  in  

Clauses  (2)  and  (3)  of  Article  246,  the  Parliament  has  

exclusive  power  to  make  laws  with  respect  to  any  of  the  

maters enumerated in List 1 in the Seventh Schedule.  Sub-

Clause  2 of  the  said Article  provides that  notwithstanding  

anything in Clause (3), Parliament and subject to Clause (1),  

the legislature of any State also have power to make laws  

with respect to any of the matters enumerated in List 3 in  

the  Seventh Schedule,   whereas,  Clause  (3)  of  Article  246  

amongst  other  things  provides  that  subject  to  Clauses  (1)  

and (2), the legislature of any State has exclusive power to  

make laws for such State or any part thereof with respect to  

any  of  the  matters  enumerated  in  List  2  in  the  Seventh  

Schedule.   Entry  2  in  List  3  i.e.  Concurrent  List  in  the  

Seventh Schedule mentions “Criminal  Procedure,  including  

in matters included in the Code of “Criminal procedure, at  

the commencement of this Constitution”.  Thus there is no  

manner of doubt that  Parliament and subject to Clause (1),  

the legislature of any State also has power to make laws with

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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.

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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

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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

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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

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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,

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the law made by the State Legislature will  prevail.   Where  

there is inconsistency between laws made by Parliament and  

laws  made  by  the  State  Legislature,  the  law made by  the  

Parliament shall prevail.  If the State makes law enumerated  

in Concurrent List which contains provisions repugnant to  

the provision of an earlier law made by the Parliament, the  

law so made by the State if it receives assent of President will  

prevail  in  the  State.    When the  State  Act  prevails  under  

Article  254(2)  over  a  Central  Act,  the  effect  is  merely  to  

supersede the Central Act or to eclipse it by the State Act.  In  

short, the result of obtaining the assent of the President to a  

State Act which is inconsistent with a previous Union Law  

relating to a concurrent subject would be that the State Act  

will prevail in that State and overrule the provisions of the  

Central Act, in that State.

In view of the above settled legal position, this Court  

has  no  doubt  that  the  amendment  made  in  the  First  

Schedule  to  the  Code of  Criminal  Procedure,  1973 by the  

Code  of  Criminal  Procedure  (Andhra  Pradesh  Second  

Amendment) Act, 1992, shall prevail in the State of Andhra

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Pradesh,  notwithstanding  the  fact  that  in  the  Criminal  

Procedure Code, 1973 offences under Section 494 and 495  

are treated as cognizable offences.  The reasoning given by  

the  Division  Bench  of  High  Court  of  Andhra  Pradesh  in  

Mavuri  Rani  Veera  Bhadranna  (supra)  that  though  the  

State Legislation amended the Schedule making the offence  

under Section 494 IPC cognizable,  the legislation made by  

the  Parliament  i.e.  Section  198  of  the  Criminal  Procedure  

Code remains and in the event of any repugnancy between  

the two legislations, the legislation made by the Parliament  

would  prevail,  because,  Section  198  of  the  Criminal  

Procedure Code still holds the field despite the fact that the  

State  Legislation  made  amendment  to  the  Schedule  of  

Criminal  Procedure  Code,  with  respect,  is  erroneous  and  

contrary to all  cannons of  interpretation of  statute.   Once  

First  Schedule  to  the  Code  of  Criminal  Procedure,  1973  

stands amended and offences punishable under Sections 494  

and 495 IPC are made cognizable offences, those offences will  

have to be regarded as cognizable offences for all purposes of  

the  Code  of  Criminal  Procedure,  1973  including  for  the

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purpose  of  Section  198  of  the  Criminal  Procedure  Code.  

Section 198(1)(c), after the Amendment made by the Code of  

Criminal  Procedure(Andhra  Pradesh  Second  Amendment)  

Act, 1992 cannot be interpreted in isolation without referring  

to the fact  that  offences under  Sections 494 and 495 IPC  

have been made cognizable  so  far  as the State  of  Andhra  

Pradesh  is  concerned.   Therefore,  the  provision  made  in  

Section 198(1)(c) that no Court shall take cognizance of an  

offences  punishable  under  Chapter  XX  of  the  IPC  except  

upon a complaint made by some person aggrieved will have  

to be read subject to the amendment made by the Legislative  

Assembly of the State of Andhra Pradesh in 1992.  Once, it is  

held that the offences under Section 494 and 495 IPC are  

cognizable  offences,  the  bar  imposed  by  operative  part  of  

sub-section 1 of Section 198 of the Criminal Procedure Code  

beginning with the words “No Court shall take cognizance of  

an offence punishable under Chapter XX of the Indian Penal  

Code  except  upon  a  complaint  made  by  some  person  

aggrieved  by  the  offence”  gets  lifted  so  far  as  offences  

punishable under Sections 494 and 495 IPC are concerned.

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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

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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

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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

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what  should  be  the  procedure  to  be  followed  by  a  

complainant when a case involves not only non- cognizable  

offence but one or more cognizable offences as well.   It  is  

somewhat  anomalous  that  the  aggrieved  person  by  the  

alleged  commission  of  offences  punishable  under  Sections  

494 and 495 IPC should file complaint before a Court and  

that the same aggrieved person should approach the police  

officer for alleged commission of offences under Sections 417,  

420 and 498A of  the Indian Penal  Code.   Where the case  

involves one cognizable offence also alongwith non-cognizable  

offences it should not be treated as a non- cognizable case  

for the purpose of sub-section 2 of Section 155 and that is  

the  intention  of  legislation  which  is  manifested in  Section  

155(4)  of  the  Code  of  Criminal  Procedure.   Therefore,  the  

argument that the learned Magistrate could not have taken  

cognizance  of  the  offences  punishable  under  Sections  494  

and 495  IPC on the  basis  of  submission  of  charge  sheet,  

cannot be accepted and is hereby rejected.

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16. This Court finds that the High Court has quashed the  

proceedings  pending  before  the  learned  Magistrate  under  

Section  498A  of  IPC  on  the  spacious  ground  that  the  

marriage of the appellant with the respondent no. 2 is void  

and as respondent no. 2 is not the wife, she was not entitled  

to  lodge  first  information  report  with  the  police  for  

commission of  offence u/s.  498A IPC and on the basis of  

police  report,  cognizance  of  the  said  offence  against  the  

appellant  could  not  have  been  taken  by  the  learned  

Magistrate.   Such  reasoning  is  quite  contrary  to  the  law  

declared by this Court in Reema Aggarwal Vs. Anupam and  

others  (2004)  3 SCC 199.  After  examining the scope  of  

Section 498A of the Indian Penal Code and holding that a  

person  who  enters  into  marital  arrangement  cannot  be  

allowed  to  take  shelter  behind  the  smoke  screen  of  

contention  that  since  there  was  no  valid  marriage  the  

question  of  dowry  does  not  arise,  this  Court  speaking  

through  Hon’ble  Mr.  Justice  Arijit  Pasayat,  has  held  as  

under:-

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“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

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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

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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

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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

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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

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the  circumstances  of  the  case  appeared  to  it,  to  be  too  

inadequate.   In  the  said  case  it  was  contended  that  the  

Supreme Court  has  no power  to  enhance sentence  in  the  

absence  of  an  appeal  by  the  Government  presented  

specifically for that purpose more so because Supreme Court  

has no revisional powers which the High Court and Court of  

Sessions are conferred with by the Criminal Procedure Code.  

While negativating the said contention this Court has firmly  

ruled  that  powers  of  the  Supreme  Court  in  appeals  filed  

under Article 136 of the Constitution are not restricted by  

the  appellate  provisions  enumerated  under  the  Code  of  

Criminal Procedure or any other statute.  What is held as  

firm  proposition  of  law  is  that  when  exercising  appellate  

jurisdiction the Supreme Court has power to pass any order.  

The  power  under  Article  136  is  meant  to  supplement  the  

existing legal frame work.  It is conceived to meet situations  

which cannot be effectively and appropriately tackled by the  

existing provisions of law.  Though challenge was not made  

by any of the two respondents to the finding recorded by the  

learned  Single  Judge  that  the  complaint  lodged  by  the

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respondent  no.  2  for  alleged  commission  of  offence  

punishable under Section 498A of the Indian Penal Code is  

not maintainable because she is not a wife, this Court feels  

that absence of challenge either by State or by the original  

complainant should not persuade or prevent this Court from  

doing justice between the parties by restoring the complaint  

filed  by  the  respondent  no.  2  under  Section  498A  of  the  

Indian Penal Code on the file of the learned Magistrate.  The  

conclusion arrived at by the High Court is such as to shake  

the conscience and sense of justice and therefore it  is the  

duty of this Court to strike down the finding recorded with  

respect  to  the  offence  punishable  under  Section  498A,  

irrespective of technicalities.  The judgment of the High Court  

quashing the proceedings initiated by the learned Magistrate  

for commission of offence punishable under Section 498A is  

tainted  with  serious  legal  infirmities  and is  founded  on  a  

legal  construction  which  is  wrong.   So  the  technical  plea  

advanced by the learned counsel  for  the  appellant  that  in  

absence of  appeal  by any of  the respondents,  quashing of  

proceedings  with  respect  to  the  offence  punishable  under

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Section 498A IPC, cannot be set aside, is hereby rejected.  As  

held in Ramakant Rai Vs. Madan Rail (2003) 12 SCC 395  

following  Arunachalam Vs.  P.S.R.  Sadanatham (1979)  2  

SCC 297 and P.S.R. Sadanatham Vs. Arunchalam (1980) 3  

SCC 141, the appellate power vested in the Supreme Court  

under Article  136 is  not to be confused with the ordinary  

appellate power exercised by appellate Courts and appellate  

Tribunals  under  specific  statutes.   It  is  plenary  power  

exercisable outside the purview of ordinary law to meet the  

demand of justice.  Article 136 is a special jurisdiction.  It is  

residuary power.  It is extraordinary in its amplitude.  The  

limits of Supreme Court when it chases injustice, is the sky  

itself.   Further,  the  powers  under  Article  136  can  be  

exercised by the Supreme Court, in favour of a party even  

suo  motu  when  the  Court  is  satisfied  that  compelling  

grounds  for  its  exercise  exist.   Where  there  is  manifest  

injustice, a duty is enjoined upon this Court to exercise its  

suo motu power by setting right the illegality in the judgment  

of the High Court as it is well settled that illegality should not  

be allowed to  be perpetuated and failure  by this  Court  to

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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

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appellant under Section 498A IPC, is hereby set aside and  

the complaint lodged by the respondent no. 2 under Section  

498A  of  the  Indian  Penal  Code  as  well  as  charge  sheet  

submitted  by  the  Investigating  Officer  for  the  same  shall  

stand  restored/revived.   Subject  to  above  mentioned  

direction the appeal stands disposed of.  

.....................................J. [J.M. Panchal]

.....................................J.                                         [H.L. Gokhale]

New Delhi; July 21, 2011.