Baldev Singh vs Nasir Singh

M.L. Singhal, J.

According to the prosecution launched by Baldev Singh, petitioner, under section 6 of the Dowry Prohibition Act, 1961 as amended by Punjab Act of 1976, in the marriage of his sister Smt. Palo to Nazir Singh accused (respondent), ornaments, clothes, furniture etc. were given by way of dowry on demand by Nazir Singh and his father Hardam Singh and mother Smt. Tejo. Dowry was given to Nazir Singh because at the time of settlement/negotiations of marriage, Nazir Singh and his parents had put this demand that if ornaments, clothes, furniture etc. as mentioned in the list annexed to the complaint were given, marriage would take place and if ornaments, clothes, etc, as mentioned in the list annexed with the complaint were not given, marriage would not take place. In the presence of Panchayat consisting of Sada Kaur, Bagicha Singh and Zora Singh etc., ornaments, clothes etc. were entrusted to Nazir Singh and his parents soon after the ''Anand Karaj'' ceremony was over. At that time, parents, brother, sister and relations of the bride were also present. Gora Singh mediator of the marriage was also present. Nazir Singh and his parents took the dowry belonging to Smt. Palo to their village Fatta Kera.

According to the prosecution, Nazir Singh and his parents kept the dowry belonging to Smt. Palo in their possession, though they should have handed over dowry to Smt. Palo because dowry was meant to be used by her and belonged to her. Smt. Palo was turned out of the matrimonial home three months after marriage and they retained unlawfully the entire dowry to themselves. Nazir Singh was remarried to Smt. Kakan of village Raguana. Nazir Singh and his parents committed an offence falling within the ambit of section 6 of the Dowry Prohibition Act, 1961 (as amended by Punjab Act of 1976). (for short hereinafter to be referred as ''the Act of 1961''). Baldev Singh who is brother of Smt. Palo instituted complaint under section 6 of the Act of 1961 against Nazir Singh and his parents after obtaining permission from Sub Davisonal Magistrate, Muktsar as envisaged by section 8A of the Act 1961. Marriage took place on or about 9.5.82. Complaint was instituted on 9.11.84.

After recording preliminary evidence, Magistrate found sufficient grounds to proceed against the accused and he summoned them for trial vide order dated 4.4.85 under section 6 of the Dowry Prohibition Act, 1961.

On 3.1.86, application was made by Baldev Singh before the Magistrate praying that accused be charged under section 406 of the IPC and 6 of the Act of 1961. Accused put in appearance before the Magistrate in response to the process issued against them.

After recording precharge evidence, the Magistrate vide order dated 1.6.86 found that no case was made out against the accused either under section 6 of the Act of 1961 or under section 406 IPC and he refused to frame charge against the accused and discharged them.

Aggrieved from this order dated 1.9.86 passed by the Magistrate, Baldev Singh has knocked the door of this court in revision. He has prayed that the impugned order be set aside and the case be remanded to the Magistrate with a direction for retrial in accordance with law.

In the Dowry Prohibition Act, 1961 dowry is defined as meaning any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Dowry, thus, is the property or valuable security given from the girl side as well as any such thing given from the boy side in consideration for the marriage. If any presents are made at the time of marriage to either party to marriage in the form of ornaments, clothes or other articles that shall not be deemed to be "dowry" within the meaning of this section unless they are made as consideration for the marriage of the said parties. An important ingredient of dowery is that the property or valuable security given should be as consideration for the marriage. In order to understand the definition of dowry we have to go to the objects and reasons behind the enactment of Dowry Prohibition Act, 1961.

Section 6 of the Act, 1961 reads as follows:

Dowry to be for the benefit of the wife or her heirs : (1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman (a) if the dowry was received before marriage, within three months after the date of marriage; or (b) if the dowry was received at the time of or after the marriage within three months after the date of its receipt; or (c) if the dowry was received when the woman was a minor, within three months after she has attained the age of eighteen years, and pending such transfer, shall hold it in trust for the benefit of the woman.

(2) If any person fails to transfer any property as required by subsection (1) within the time limit specified therefor, or as required by subsection (3) he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both.

(3) Where the woman entitled to any property under subsection (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being."

In its application to the State of Punjab, Section 7 was substituted as under:

"7. Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973

(1) no Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act;

(2) no Court shall take cognizance of any offence punishable under Sections 3, 4 and 4B except upon a complaint made within one year from the date of the offence, by some person aggrieved by the offence;

Provided that

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint, or is a woman, who according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where the person aggrieved by an offence is the wife, complaint may be made by her father, mother, brother, sister or by her father''s or mother''s brother or sister, and

(3) every offence under Section 4A shall be cognizable.

Provided that no Police officer below that rank of a Deputy Superintendent of Police shall investigate any offence punishable under this Act or make any arrest therefor."

Conjoint reading of the aforesaid provisions makes it clear that the intention of the legislature was that for one year from the date of offence, there shall be no criminal complaint under the Act, 1961. Legislature in its wisdom perhaps thought that the post marriage period was a sensitive time for the spouses and no criminality should be allowed to surcharge the atmosphere. It is after the expiry of one year from the date of offence that a complaint is competent.

It was submitted by the learned counsel for the petitioner that marriage took place on or about 9.5.82. Complaint was instituted on or about 9.11.84. Upto 9.5.83 no complaint was competent in view of the bar created by section 7 of the Act. Section 8(A) of the Act lays down that ''no prosecution shall be instituted against any person in respect of any offence committed under this Act without the previous section of the District Magistrate or of such officer as the State Government may by special or general order appoint in this behalf''. In this case application was moved by Baldev Singh, petitioner, under section 8A of the Act in the court of SubDivisional Magistrate Muktsar exercising the powers of District Magistrate under section 8A of the Dowry Prohibition (Punjab Amendment) Act 26 of 1976 on 1.11.83. It was alleged by Baldev Singh that Nazir Singh, respondent, was married to Smt. Kakan of village Raguana about three months prior to 1.11.83 i.e. in or about August 1983. From the plain language of section 8A of the Act it emerges that no complaint under section 6 of the Act was competent before the Magistrate if no permission was granted by the SubDivisional Magistrate, Muktsar to Baldev Singh. SubDivisional Magistrate, Muktsar gave permission to Baldev Singh to institute complaint under Section 6 of the Act vide order dated 30.10.84.

Now the question that arises is from what date this period of one year should be counted. As Section 8A stipulates that before initiating prosecution for any of the offences under the Act, prior sanction of the District Magistrate or such other officer as the State Government may be special or general order appoint in this behalf is a must, it would be reasonable to take this period of one year from the date when such sanction was given by the District Magistrate or some other officer whom the State Government has authorised. Section 8A was inserted in the Act to save law abiding persons from frivolous prosecutions. Grant of sanction is a pre requisite to the Magistrates taking cognizance of the offence under the Act. An expost facto sanction will not cure the institution of prosecution where the same has been instituted without obtaining such sanction. Magistrate shall take cognizance of the offence punishable under sections 3, 4 and 4(B) within one year from the date of offence. Now the question arises as to the date when the offence should be taken to have been committed. In this case the offence shall be taken to have been committed when the District Magistrate or some other officer as the state Government has appointed has determined that the offence has been committed. In this case, complaint was instituted on 9.11.84 and, therefore, bar of limitation will not defeat the complaint. Till one year after the date of marriage no cause of action will arise to the wife for complaint under this Act. Cause of action will arise only after one year of the date of marriage and that too on the nonreturn of the dowry to the wife and that too on demand by her. In this case the cause of action for the return of dowry to the wife arose in August 1983 i.e. when Nazir Singh entered remarriage with Smt. Kakan during the subsistence of his marriage with Smt. Palo.

Language of a statute should be inter preted in a manner that interpretation does not lead to the defeating of the intention of the legislature but to the fulfilment thereof. Even otherwise, bar of limitation does not apply to the complaint under section 6 of the Act as is clear from the language employed in Section 7 after the amendment introduced by Punjab Act 26 of 1976. Prior to amendment Section 7 was in the following terms:

"7. Cognizance of offences : Notwithstanding anything contained in the code of Criminal Procedure, 1898 :

(a) no court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try an offence under this Act;

(b) no court shall take cognizance of any such offence except on a complaint made within one year from the date of offence;

(c) it shall be lawful for a Presidency Magistrate or a Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under this Act."

There can, thus, be no manner of doubt that the complaint was not governed by the bar of limitation created in section 7 of the Act as it stood after the Punjab amendment Act 26 of 1976.

Section 406 IPC was also attracted in this case because whatever was given to the wife was for the exclusive use of the wife. Whatever was given to the wife for her exclusive use was entrusted to the accused. It meant by implication that property was liable to be returned to the wife. Nonreturn of that property to the wife constituted criminal breach of trust.

Section 6 of Dowry Prohibition Act creates an offence triable as a summons case. It was submitted by the learned counsel for the petitioner that the Magistrate ought to have tried it as a summons case. After the accused had put in appearance the Magistrate should have given them notice constituting the offence calling upon them to show cause why they be not punished thereunder. If it was a warrant case constituting an offence falling within the ambit of section 6 of the Act read with section 406 IPC, the Magistrate should have tried it as a warrant case. Magistrate did not decide the application moved by the petitioner on 3.1.86 that offence under Section 406 IPC was also made out and as such the accused be tried for offence as envisaged by section 6 of the Act read with section 406 of the IPC and without such determination he could not have tried the case as if it were a warrant case.

Learned counsel for the respondents, on the other hand submitted that the Magistrate did not determine whether offence under section 406 IPC it were a summons case and, therefore, order of discharge passed by the Magistrate should be taken to be an order of acquittal and there is no appeal against the acquittal. In my opinion, going into this exercise is futile. Procedure as to trial of a warrant case instituted on complaint assures greater protection to the accused as compared to assurance given to the accused by the procedure as to trial of a summons case. In this case the Magistrate adopted the procedure as to trial of warrant case instituted on private complaint. JUDGMENT dated 26.8.86 passed by the Magistrate shows that Baldev Singh closed precharge evidence. On 26.8.8.6 the Magistrate posted the case for arguments for consideration of charge.

If there is defect in procedure as to trial, the accused may be allowed to take the benefit thereof if in the opinion of the court defect in procedure has occasioned failure of justice to the accused. In this case so far as complainant is concerned he cannot take advantage of the defect in procedure as to trial.

In this case Magistrate was quite justified in returning a verdict of not guilty so far as the accused are concerned. Baldev Singh PW stated that at the time of marriage of Palo to Nazir Singh accused, gold ornaments weighing 3 tolas, iron peti, steel almirah, beds, table, chairs etc. were given. Smt. Palo, Sada Kaur, Nand Singh also stated to the same effect. Baldev Singh stated that they gave dowry to Smt. Palo at the time of marriage on the demand of Nazir Singh and his father and mother that if those items had not been given to them in marriage the marriage would not have taken place. It was stated that those items was handed over the Nazir Singh and his parents at the time of marriage in their presence. No goldsmith was produced to state that he manufactured the gold ornaments. No cloth merchant was produced to state that he sold clothes to Baldev Singh. No receipt was produced to show that purchase of iron peti, steel almirah etc. It is not forthcoming as to when the list showing the items of dowry was prepared. If it was prepared at the time of departure of doli, one part thereof would have been handed over to Nazir Singh or his father with the items of dowry and one part thereof would have been detained by the family of the bride. It may be true that there is hardly any marriage where dowry is not given. On this mere assumption that in every marriage dowry is given the bridegroom and his family cannot be convicted. In a warrant case instituted on complaint charge is framed only where it is felt that the evidence led by the complainant is sufficient enough to sustain conviction if not rebutted by the accused. No charge is framed where it is felt that the evidence produced by the complainant is not that adequate as to sustain conviction. In my opinion, leaned Magistrate justifiably discharged the accused. In the exercise of revisional jurisdiction vesting in this court under section 397 Cr.P.C., this court will interfere with the impugned order only if the impugned order is based on no evidence and is perverse. This court will not interfere if the impugned order is based on appreciation of evidence and the appreciation of evidence made by the Magistrate cannot be said to be perverse.

If the wife institutes any suit for the recovery of articles of dowry or the value thereof in the civil court, period spent by her in these proceedings in this court, in the court of Judicial Magistrate First Class, Muktsar and in the Court of Sub Divisional Magistrate, Muktsar shall be excluded while computing the period of limitation.

For the reasons given above, this Crl. Revision fails and is dismissed.