Sunil Pillai Vs. Union of India (Uoi) - Court Judgment

Excerpt:
criminal - compounding of offences - sections 198 and 320 of criminal procedure code, 1973(cr.p.c.) and section 494 of indian penal code, 1860(ipc) - petitioner was practicing advocate - he filed present petition for declaring that part of section 320 of cr.p.c. as ultra vires whereby certain persons had been exclusively authorized to compound offence punishable under section 494 of ipc - held, section 198(1)(c) of cr.p.c. authorizes near relatives of wife to lodge complaint if offence under section 494 of ipc had been committed against wife - section 320 of cr.p.c. authorizes only husband and wife to compound offence committed under section 494 of ipc - provision of section 198(1)(c) of cr.p.c. had been enacted keeping in view socio-cultural practice of society - therefore any person who feels aggrieved by offence of bigamy against wife can lodge complaint - said aggrieved person must be related to wife by blood - but liberty of compounding offence has been given only to spouse as real victim of offence of bigamy are spouse - necessary precaution has been taken by providing requirement of sanction of court under section 320 of cr.p.c. before compounding offence committed under section 494 of ipc - hence, no anomaly exist between section 198(1)(c) and section 320 of cr.p.c. - petition accordingly dismissed - - we fail to fathom how the said provision penetrates into the marrows of the provision which confers privilege on the husband or the wife of the person so married to compound in respect of offence punishable under section 494, ipc.orderdipak misra, j.1. invoking the extra-ordinary jurisdiction of this court the petitioner, a member of the bar, has prayed for issue of a appropriate writ declaring that part of section 320 of the code of criminal procedure, 1973 (hereinafter referred to as 'the code') whereby certain persons have been exclusively authorised to compound the offence punishable under section 494 of the indian penal code (in short 'the ipc') as ultra vires.2. it is averred in the petition that the petitioner is a practising advocate at jabalpur. he was enrolled in the state bar council of madhya pradesh in the year 1998. it is putforth by him that he is writing a treatise on certain facets of law relating to corruption which has brought immense appreciation from various streams of society. he is amongst the persons interested in criminal law and in the dispensation of justice and hence, he has noticed that there is a lacunae in the table contained in section 320 of the code which has prompted him to file this petition.3. according to the writ petitioner chapter xx of the ipc engulfs certain provisions, viz. sections 493 and 498 alongwith other offences. section 494 of the ipc has been referred to show that this is an offence relating to bigamy meaning thereby marrying again during lifetime of husband or wife. it is putforth that the aforesaid offence is against the social evil and has wide prevalence in the community and invites condemnation of all and the criminal law can be set in motion by the persons aggrieved as provided for under section 198 of the code but it can be compounded by the husband or the wife of the person so marrying. it is contended in the petition that the privilege has been conferred on either of the spouses and the burden of second marriage is to be tolerated by the parents or guardians though they have been conferred the authority to launch prosecution. it is setforth in the petition that there is repugnancy between the two provisions, namely, section 198 and the table contained in section 320 of the code in respect of column relating to section 494, ipc especially pertaining to the persons who arc authorised to compound and thence, the said part deserves to be declared ultra vires. it is also highlighted that a discrimination is created between the other offences and section 494, ipc which does not stand the test of article 14 of the constitution.4. we have heard mr. prashant singh, learned counsel for the petitioner. it is submitted by mr. singh that if the scheme of the code of criminal procedure is scrutinised in proper perspective there is an incurable anomaly between section 198 and the relevant provision which has been stated in the writ petition coming under section 320 of the code and, therefore, that part of the table contained in section 320, ipc should be lanceted. he has pressed into service the decision rendered in the case of state of m.p. v. g.c. mandawar, air 1954 sc 493, to bolster his proponement with regard to the repugnancy on the foundation/test pertaining to the provision in the statute. learned counsel has also contended that when section 198(1)(c) of the code empowers the father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the court, by any other person related to her by blood, marriage or adoption to set the criminal law in motion, there is no justification to abolish the right of the persons aggrieved when the factum of compounding of the offence arise. his submission is that the person who has the authority in law to file a complaint, can oppose/present in oppugnation when the question of compounding is under consideration.5. to appreciate the aforesaid submission it is condign to refer to section 198(1)(c) of the code. we are not referring to other parts of section 198 as they are not relevant for the present purpose. the relevant part reads as under:--'198(1)(c). where the person aggrieved by an offence punishable under section 494 or section 495 of the indian penal code (45 of 1860), is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or, with the leave of the court, by any other person related to her by blood, marriage or adoption.'6. section 494 of the indian penal code reads as under :--'494. 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.exception :--this section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with who such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.'7. it is also relevant to refer to section 320 of the code. section 320 deals with the offences punishable under the sections of the indian penal code, specified in the first two columns of the table attached to the said sections that may be compounded by the persons mentioned in the third column of that table. the column pertaining to section 494 stipulates that the offence may be compounded by the husband or wife or the person so marrying. it is appropriate to state here that section 494 occurs in the table which has been framed under sub-section (2) of section 320. as far as this offence is concerned the permission of the court is necessary. true it is, section 198(1)(c) has widened the range of persons who can lodge a complaint by describing him as the person aggrieved. as far as section 494 is concerned the parents and the other relatives, namely, brother, sister, son or daughter and even grand father and also maternal uncle and such relatives have been included. taking the social requisite collective harmony and prevalent tradition bound socio-cultural norms into consideration such a latitude has been given in the statute for launching of prosecution. they remain in the realm of persons authorised to launch prosecution but as far as compounding is concerned the statute confers such authority exclusively on the husband or the wife. there is also a safeguard attached to it inasmuch as prior permission of the court is necessary. it is not under the table framed under section 320(1) where permission of the court is not necessary. the grant of leave to file a complaint and to compound the offence are in two different spheres or realms.8. the marriage is a sacrosanct aspect of life and that is why it has been said that there is a 'sharir sanskar' of the person. the husband or the wife on certain occasions may not think it appropriate to proceed against the spouse and, therefore, others may be allowed to launch the prosecution but during the criminal proceedings the husband or the wife may compound the offence after obtaining due permission of the court. in our considered opinion, the facets under section 198(1)(c) and the sphere under section 320(2) qua section 494, ipc are in two different realms. the question of any kind of anomaly which as has been submitted by mr. singh relying on the decision rendered in the case of g.c. mandawar (supra) is not attracted. in the aforesaid case the apex court has observed that the court has the power to declare a law void under article 13 and it has to be exercised with reference to the specific legislation which is impugned. their lordships further held that it is conceivable that when the same legislature enacts two different laws but in a substance they form one legislation, it might be open to the court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. the said decision was rendered in a different context altogether. that apart, the apex court was dealing with the power of the court and the facet of article 14 which engulfs the spectrum of discrimination. mr, singh has endeavoured hard to pyramid the submission that once a person is treated as person aggrieved under section 198 of the code, he must have the liberty to compound and without his consent such compounding should not be allowed. we fail to fathom how the said provision penetrates into the marrows of the provision which confers privilege on the husband or the wife of the person so married to compound in respect of offence punishable under section 494, ipc. section 494, ipc is an offence which is really relates to the husband and the wife. the legislature in its wisdom has granted liberty to the husband or the wife to conceive and foster the idea of compounding. in addition to the same, the legislature has incorporated a safeguard by postulating that it has to be done with the permission of the court. the possibility of entrenchment of relations, which are large in number for the purposes of section 198, may not create a dent in the relationship of husband or wife. there may be an occasion when a case may be filed under misconception. there may be a case where wife or husband thinks it appropriate to compound and lead a decent life. he or she is the real victim. the whole thing is fundamentally constitutional and integral to their individual disposition. that apart, the conception of collective legal vendetta or vengeance cannot be allowed to reign over the real individual grievance. if it is allowed to be done, in our considered view, the basic and elementary perception and understanding of victimology would stand obliterated. the concept of aggrieved person qua section 198 and real victim have to be weighed in proper perspective, different parameters and the differentiation, in our view, cannot be marginalised. we are of the considered opinion that the distinction is real and not a castle built in spain. the legislature in its wisdom has bestowed this privilege on the husband and wife and we see no anomaly or repugnancy in the same. it subserves the cherished purpose of continuance of healthy and wholesome marital life and purposive in conferral of such privilege/right to the 'victims' - victims in proper sense of the term.9. in view of our preceding analysis, we do not find any substance in this writ petition and the same stands dismissed in limine.

Judgment:
ORDER

Dipak Misra, J.

1. Invoking the extra-ordinary jurisdiction of this Court the petitioner, a member of the Bar, has prayed for issue of a appropriate writ declaring that part of Section 320 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') whereby certain persons have been exclusively authorised to compound the offence punishable under Section 494 of the Indian Penal Code (in short 'the IPC') as ultra vires.

2. It is averred in the petition that the petitioner is a practising Advocate at Jabalpur. He was enrolled in the State Bar Council of Madhya Pradesh in the year 1998. It is putforth by him that he is writing a treatise on certain facets of law relating to corruption which has brought immense appreciation from various streams of society. He is amongst the persons interested in criminal law and in the dispensation of justice and hence, he has noticed that there is a lacunae in the table contained in Section 320 of the Code which has prompted him to file this petition.

3. According to the writ petitioner Chapter XX of the IPC engulfs certain provisions, viz. Sections 493 and 498 alongwith other offences. Section 494 of the IPC has been referred to show that this is an offence relating to bigamy meaning thereby marrying again during lifetime of husband or wife. It is putforth that the aforesaid offence is against the social evil and has wide prevalence in the community and invites condemnation of all and the criminal law can be set in motion by the persons aggrieved as provided for under Section 198 of the Code but it can be compounded by the husband or the wife of the person so marrying. It is contended in the petition that the privilege has been conferred on either of the spouses and the burden of second marriage is to be tolerated by the parents or guardians though they have been conferred the authority to launch prosecution. It is setforth in the petition that there is repugnancy between the two provisions, namely, Section 198 and the table contained in Section 320 of the Code in respect of column relating to Section 494, IPC especially pertaining to the persons who arc authorised to compound and thence, the said part deserves to be declared ultra vires. It is also highlighted that a discrimination is created between the other offences and Section 494, IPC which does not stand the test of Article 14 of the Constitution.

4. We have heard Mr. Prashant Singh, learned Counsel for the petitioner. It is submitted by Mr. Singh that if the scheme of the Code of Criminal Procedure is scrutinised in proper perspective there is an incurable anomaly between Section 198 and the relevant provision which has been stated in the writ petition coming under Section 320 of the Code and, therefore, that part of the table contained in Section 320, IPC should be lanceted. He has pressed into service the decision rendered in the case of State of M.P. v. G.C. Mandawar, AIR 1954 SC 493, to bolster his proponement with regard to the repugnancy on the foundation/test pertaining to the provision in the statute. Learned Counsel has also contended that when Section 198(1)(c) of the Code empowers the father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the Court, by any other person related to her by blood, marriage or adoption to set the criminal law in motion, there is no justification to abolish the right of the persons aggrieved when the factum of compounding of the offence arise. His submission is that the person who has the authority in law to file a complaint, can oppose/present in oppugnation when the question of compounding is under consideration.

5. To appreciate the aforesaid submission it is condign to refer to Section 198(1)(c) of the Code. We are not referring to other parts of Section 198 as they are not relevant for the present purpose. The relevant part reads as under:--

'198(1)(c). Where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860), is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.'

6. Section 494 of the Indian Penal Code reads as under :--

'494. 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.

Exception :--This Section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with who such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.'

7. It is also relevant to refer to Section 320 of the Code. Section 320 deals with the offences punishable under the sections of the Indian Penal Code, specified in the first two columns of the Table attached to the said sections that may be compounded by the persons mentioned in the third column of that table. The column pertaining to Section 494 stipulates that the offence may be compounded by the husband or wife or the person so marrying. It is appropriate to state here that Section 494 occurs in the table which has been framed under Sub-section (2) of Section 320. As far as this offence is concerned the permission of the Court is necessary. True it is, Section 198(1)(c) has widened the range of persons who can lodge a complaint by describing him as the person aggrieved. As far as Section 494 is concerned the parents and the other relatives, namely, brother, sister, son or daughter and even grand father and also maternal uncle and such relatives have been included. Taking the social requisite collective harmony and prevalent tradition bound socio-cultural norms into consideration such a latitude has been given in the statute for launching of prosecution. They remain in the realm of persons authorised to launch prosecution but as far as compounding is concerned the statute confers such authority exclusively on the husband or the wife. There is also a safeguard attached to it inasmuch as prior permission of the Court is necessary. It is not under the table framed under Section 320(1) where permission of the Court is not necessary. The grant of leave to file a complaint and to compound the offence are in two different spheres or realms.

8. The marriage is a sacrosanct aspect of life and that is why it has been said that there is a 'sharir sanskar' of the person. The husband or the wife on certain occasions may not think it appropriate to proceed against the spouse and, therefore, others may be allowed to launch the prosecution but during the criminal proceedings the husband or the wife may compound the offence after obtaining due permission of the Court. In our considered opinion, the facets under Section 198(1)(c) and the sphere under Section 320(2) qua Section 494, IPC are in two different realms. The question of any kind of anomaly which as has been submitted by Mr. Singh relying on the decision rendered in the case of G.C. Mandawar (supra) is not attracted. In the aforesaid case the Apex Court has observed that the Court has the power to declare a law void under Article 13 and it has to be exercised with reference to the specific legislation which is impugned. Their Lordships further held that it is conceivable that when the same legislature enacts two different laws but in a substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. The said decision was rendered in a different context altogether. That apart, the Apex Court was dealing with the power of the Court and the facet of Article 14 which engulfs the spectrum of discrimination. Mr, Singh has endeavoured hard to pyramid the submission that once a person is treated as person aggrieved under Section 198 of the Code, he must have the liberty to compound and without his consent such compounding should not be allowed. We fail to fathom how the said provision penetrates into the marrows of the provision which confers privilege on the husband or the wife of the person so married to compound in respect of offence punishable under Section 494, IPC. Section 494, IPC is an offence which is really relates to the husband and the wife. The Legislature in its wisdom has granted liberty to the husband or the wife to conceive and foster the idea of compounding. In addition to the same, the Legislature has incorporated a safeguard by postulating that it has to be done with the permission of the Court. The possibility of entrenchment of relations, which are large in number for the purposes of Section 198, may not create a dent in the relationship of husband or wife. There may be an occasion when a case may be filed under misconception. There may be a case where wife or husband thinks it appropriate to compound and lead a decent life. He or she is the real victim. The whole thing is fundamentally constitutional and integral to their individual disposition. That apart, the conception of collective legal vendetta or vengeance cannot be allowed to reign over the real individual grievance. If it is allowed to be done, in our considered view, the basic and elementary perception and understanding of victimology would stand obliterated. The concept of aggrieved person qua Section 198 and real victim have to be weighed in proper perspective, different parameters and the differentiation, in our view, cannot be marginalised. We are of the considered opinion that the distinction is real and not a castle built in Spain. The Legislature in its wisdom has bestowed this privilege on the husband and wife and we see no anomaly or repugnancy in the same. It subserves the cherished purpose of continuance of healthy and wholesome marital life and purposive in conferral of such privilege/right to the 'victims' - victims in proper sense of the term.

9. In view of our preceding analysis, we do not find any substance in this writ petition and the same stands dismissed in limine.