SUNIL PILLAI Vs. UNION OF INDIA

JUDGEMENT

(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.