TaxTMI 
TaxTMI 
TaxTMI 
2011 (7) TMI 1024
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....rst wife had died after delivering two children who are studying and staying in a hostel, even though his first wife by name Sharda is very much alive and living with him at Avanthinagar near Erragadda and thus by making false and fraudulent representation, the appellant married with her at Yadagirigutta on 09.10.1994. The case of the respondent no. 2 is that the appellant had collected total amount of Rs.28,000/- from her father towards hand loan on the false plea that he was constructing his own house at Borabanda and the appellant further demanded a sum of Rs.20,000/- from her father and when her father expressed inability to pay the amount, the appellant threatened the complainant and her father with dire consequences by showing his licensed revolver. According to the complainant, several times the appellant had tried to snatch away gold ornaments put on by her by threatening her with dire consequences and had demanded gold ornaments together with cash of Rs.15,000/- from her parents. The case of the respondent no. 2 is that when additional demand was not fulfilled the appellant had threatened her and her father again by saying that he would wipe out the evidence of his marriag....
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....is his wife and cognizance of those offences could have been taken only on the basis of the complaint filed by his wife in the Court or by someone on her behalf as contemplated by Section 198A (1)(c) of the Code, and therefore, the learned Magistrate could not have taken cognizance of those offences on the basis of submission of charge sheet by Sub-Inspector of Police on the basis of the investigation into the FIR lodged by the respondent No. 2 who is not the aggrieved person within the meaning of Section 198 of the Code. It was pleaded that there was no averment that pursuant to deception or fraudulent or dishonest inducement made by the appellant, there was any delivery or destruction of property belonging to the original complainant and therefore Section 420 IPC was not attracted. It was the case of the appellant that the provision of Section 498A was also not attracted because the respondent no. 2 was not the wife of the appellant. It was also the case of the appellant that Section 417 IPC merged into offence under Section 495 IPC which is a graver offence than Section 417 and as there were no allegations constituting offence under Section 417 IPC, the proceedings initiated for....
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....es punishable under Sections 494, 495, 417 and 420 IPC, are concerned, is rejected, giving rise to the instant appeal. 7. The learned Counsel for the appellant argued that the learned Magistrate could not have taken cognizance of offences under Sections 494 and 495 IPC on the basis of the police report submitted by the Investigating Officer because though the State legislation amended the First Schedule to the Code of Criminal Procedure, 1973 by making the offences under Section 494 ad 495 IPC cognizable, the legislation made by the Parliament in respect of Section 198 of the Code of Criminal Procedure remained the same and in the event of any repugnancy between the two legislations, the legislation made by the Parliament would prevail. It was emphasized that Section 198 A inserted by Section 5 of the Act 46 of 1983 with effect from 25.12.83 provides that no Court shall take cognizance of an offence punishable under Section 498A of the Indian Penal Code except upon a police report of facts which constitute such offences or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's, her mother's, brother or sister or wi....
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....unsel 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. 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 offen....
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....st that in India, hypergamy brought forth wholesale polygamy and along with it misery, plight and ignominy to woman having no parallel in the world. In post vedic India a King could take and generally used to have more than one wife. Section 4, of Hindu Marriage Act nullifies and supersedes such practice all over India among the Hindus. Section 494 is intended to achieve laudable object of monogamy. This object can be achieved only by expanding the meaning of the phrase "aggrieved person". For variety of reasons the first wife may not choose to file complaint against her husband e.g. when she is assured of re-union by her husband, when husband assures to snap the tie of second marriage etc. Non-filing of the complaint under Section 494 IPC by first wife does not mean that the offence is wiped out and monogamy sought to be achieved by means of Section 494 IPC merely remains in statute book. Having regard to the scope, purpose, context and object of enacting Section 494 IPC and also the prevailing practices in the 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 ....
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....of filing complaint to the first wife and there is no reason to read the said Section in a restricted manner as is suggested by the learned Counsel for the appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by wife living and not by the woman with whom subsequent marriage takes place during the life time of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom second marriage takes place which is void by reason of its taking place during the life of first wife. A bare reading of the complaint together with statutory provisions makes it abundantly clear that the appellant having a wife living, married with the respondent no. 2 herein by concealing from her the fact of former marriage and therefore her complaint against the appellant for commission of offence punishable under Section 494 and 495 IPC is, maintainable and cannot be quashed on this ground. To hold that a woman with whom second marriage is performed is not entitled to maintain a complaint under Section 494 IPC though she suffers legal injuries wo....
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....ons 494 and 495 IPC. 12. The argument that the learned Magistrate could not have taken cognizance of offence punishable under Sections 494 and 495 IPC on the basis of the police report i.e. charge sheet, as those offences are non- cognizable and therefore, the relief claimed in the petition filed before the High Court under Section 482 of the Code should have been granted is devoid of merits. 13. In this regard, it would be, relevant to notice the provisions of Article 246 of the Constitution. Article 246 deals with subject matter of laws made by the Parliament and by the legislatures of State. Clause (1) of Article 246 inter alia provides that notwithstanding anything contained in Clauses (2) and (3) of Article 246, the Parliament has exclusive power to make laws with respect to any of the maters enumerated in List 1 in the Seventh Schedule. Sub-Clause 2 of the said Article provides that notwithstanding anything in Clause (3), Parliament and subject to Clause (1), the legislature of any State also have power to make laws with respect to any of the matters enumerated in List 3 in the Seventh Schedule, whereas, Clause (3) of Article 246 amongst other things provides that subject t....
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....n 5 for the word "Bailable" the word "Non-bailable" were substituted. Similarly, against the entries relating to Section 495 in column 4, for the word "Ditto" the word "Cognizable" and in column 5 for the word "Ditto", the word "Non-bailable" were substituted. What is relevant to be noticed is that the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was reserved by the Governor of Andhra Pradesh on the 21st October, 1991 for consideration and assent of the President. The Presidential assent was received on 10th February, 1992 after which the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was published on the 15th February, 1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Thus there is no manner of doubt that Sections 494 and 495 IPC are cognizable offences so far as State of Andhra Pradesh is concerned. 14. Having noticed the amendment made by the Legislative Assembly of the State of Andhra Pradesh regarding Section 494 and 495 IPC, this Court proposes to consider the effect of assent given by the President on 10th February, 1992 to the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992. Article 254 of the Cons....
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....te law would prevail in the particular State notwithstanding its repugnancy to a Central law or an existing law. Clause (2) comes into play only when (1) the two laws in question deal with a matter in Concurrent List (2) the State law has been made with the consent of the President and (3) the provision of law made by Parliament was earlier. When all these three conditions are satisfied, the law made by the State Legislature will prevail. Where there is inconsistency between laws made by Parliament and laws made by the State Legislature, the law made by the Parliament shall prevail. If the State makes law enumerated in Concurrent List which contains provisions repugnant to the provision of an earlier law made by the Parliament, the law so made by the State if it receives assent of President will prevail in the State. When the State Act prevails under Article 254(2) over a Central Act, the effect is merely to supersede the Central Act or to eclipse it by the State Act. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union Law relating to a concurrent subject would be that the State Act will prevail in that State and ....
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.... offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence" gets lifted so far as offences punishable under Sections 494 and 495 IPC are concerned. As those offences have been made cognizable offences in the State of Andhra Pradesh since 1992, the same will have to be dealt with as provided in the Section 156 which inter alia provides that any officer in charge of a Police Station, may without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XIII. Even without the authorization under Section 155(2) or Section 156(3) of Criminal Penal Code, offences under Sections 494, 495 and 496 having been rendered cognizable and nonbailable 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....
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....may arise as to what should be the procedure to be followed by a complainant when a case involves not only non- cognizable offence but one or more cognizable offences as well. It is somewhat anomalous that the aggrieved person by the alleged commission of offences punishable under Sections 494 and 495 IPC should file complaint before a Court and that the same aggrieved person should approach the police officer for alleged commission of offences under Sections 417, 420 and 498A of the Indian Penal Code. Where the case involves one cognizable offence also alongwith non-cognizable offences it should not be treated as a non- cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which is manifested in Section 155(4) of the Code of Criminal Procedure. Therefore, the argument that the learned Magistrate 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. 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 th....
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....roclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions- Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions." 17. In view of firm and clear law laid down on the subject, this Court is of the confirmed view that the High Court was not justified at all in quashing the proceedings initiated against the appellant under Section 498A of the Code on the ground that the respondent no. 2 was not wife within the meaning of Section 498A of the IPC and was not entitled to maintain complaint under the said provision. ....
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....eal is filed by any of the respondents challenging that part of the order which is against them. To notice an obvious error of law committed by the High Court and thereafter not to do anything in the matter would be travesty of justice. This Court while disposing of an appeal arising out of grant of special leave can make any order which justice demands and one who has obtained illegal order would not be justified in contending before this Court that in absence of any appeal against illegal order passed by the High Court the relief should not be appropriately moulded by the Court or that the finding recorded should not be upset by this Court. 19. In Chandrakant Patil Vs. State (1998) 3SCC 38, even in absence of an appeal by Government specifically for that purpose and in absence of revisional power as is available to High Court and Sessions Court, under Criminal Procedure Code, this Court held that the Supreme Court has power under Article 142 read with Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 to enhance the sentence for doing complete justice in the matter that in the circumstances of the case appeared to it, to be too inadequate. In the said c....