Jai Prakash @ Kuku vs The State of Bihar and Another

Nagendra Rai

Both the applications arise out of complaint Case No. 1140(C) of 1999 and as such they have been heard together and are being disposed of by this common order. The petitioners have challenged the order dated 7.1.2003 whereby the application filed for discharge u/s 245 of the Code of Criminal Procedure has been rejected by the Sub-Divisional Judicial Magistrate, Patna after holding that case u/s 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act has been made out.

The matter was placed before the learned Single Judge and the learned Single Judge by order dated 9.8.2004 has referred the matter to a larger Bench for consideration as to whether sanction for prosecution u/s 4 of the Dowry Prohibition Act, hereinafter referred to as the ''Act'', as per amendment of the said Section by the Bihar Amendment is required or not in view of the judgment of the Supreme Court in the case of Rajesh Kumar Kejriwal and Ors. vs. The State of Bihar and Anr., (1997) 10 SCC 524 , and that is how the matter has been placed before us.

The factual matrix which has necessitated filing of the present applications is that the opposite party in both the cases Smt. Indu Devi, wife of the petitioner Jai Prakash @ Kuku of Cr. Misc. No. 4187 of 2003 and daughter-in-law of the petitioners of Cr. Misc. No. 5311 of 2003, filed a petition of complaint before the concerned court alleging that the petitioner Jai Prakash @ Kuku married her and after marriage she was tortured and subjected to cruelty and harassment for the purpose of realising Rs. 50,000/- in cash for the purpose of business and for purchasing a gold chain. She alleged that she was not provided with food on time and was also confined in a room locked from outside. She was subjected to cruelty and harassment even at the time of pregnancy.

The court ordered for enquiry u/s 202 of the Code of Criminal Procedure and the complainant examined herself, her father, her mother and her brothers. Thereafter the court took cognizance against three petitioners by order dated 21.8.1999 for the offences u/s 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, though offences under other sections were also alleged.

At the stage of Section 245 of the Code of Criminal Procedure, the petitioners filed application for discharge which has been rejected against which they filed two applications which, as stated above, was placed before the learned Single Judge. The point pressed before her was that as no sanction was obtained for prosecution by the competent authority in terms of Sections 3 and 4 of the Dowry Prohibition Act, hereinafter referred to as the ''Act'', as amended by Bihar Act, their prosecution under sections 3 and 4 of the Act is vitiated and the learned Single Judge having found that a Division Bench of this Court in the case of Deo Narayan Lall Das and 5 Ors. Vs. The State of Bihar and Another , has held that the said amendment of 1976 was void in view of subsequent amendment of the Central Act doing away with the requirements of previous sanction, has referred the matter on the ground that the Supreme Court in the case of Rajesh Kumar Kejriwal (supra), relying upon the Bihar Amendment providing for sanction for prosecution under sections 3 and 4 of the Act, has quashed the prosecution and thus the earlier Division Bench judgment of this Court in the case of Deo Narayan Lall Das (supra) requires reconsideration.

Learned counsel appearing for the petitioners submitted that in view of the provisions of Section 4 of the Act as amended by Bihar Act 4 of 1976, previous sanction of the State Government or of such other officers of the State Government is required before taking cognizance and as in this case cognizance has been taken without previous sanction, the prosecution under the aforesaid section is vitiated in law and he relied upon the judgment of the Supreme Court in the case of Rajesh Kumar Kejriwai (supra).

Learned counsel appearing for the complainant-opposite party, on the other hand, submitted that the attention of the Apex Court in the case of Rajesh Kumar Kejriwal (supra) was not drawn to the subsequent amendment made in the Central Act doing away with the provision of previous sanction and as such the decision in the case of Rajesh Kumar Kejriwal (supra) is not an authority on the point that sanction is must in view of the amended provision of Bihar Act 4 of 1976 before taking cognizance by the Magistrate.

Punishing sections are Sections 3 and 4 of the Act. Section 4 of the Act prior to amendment by Act 63 of 1984 provided that no court shall take cognizance of the offence u/s 4 of the Act except with the previous sanction of the State Government or of such officers as the State Government may, by general or special order, specify in this behalf. In 1976 Section 4 of the Act was amended by Bihar Act 4 of 1976 which also contained [he similar provision that prior sanction of the competent authority is necessary before taking cognizance by the court.

Later on, the Parliament realised that social evil of dowry is not being properly dealt with in view of the requirement of previous sanction and accordingly replaced Section 4 of the Act by Act 63 of 1984 and deleted the provision regarding requirement of prior sanction. This point was raised before me in the case of Deo Narayan Lall Das and others vs. State of Bihar, while I was sitting singly and as the question was important question of law, the same was referred to a Division Bench by order dated 8.4.1991 and the Division Bench of this Court disposed of the matter on 17.4.1992 which is reported in Deo Narayan Lall Das and 5 Ors. Vs. The State of Bihar and Another and held that the law made by the Parliament would prevail and the law made by the State Legislature would be void to the extent of repugnancy. In other words, the Division Bench of this Court held that in view of the amendment of Section 4 of the Act by Central Act subsequently there is no requirement of previous sanction in terms of the provisions contained in Section 4 as amended by Bihar Act 4 of 1976.

Power of the State Legislature and the Parliament to make laws under Article 246 of the Constitution of India is regulated by Seventh Schedule of the Constitution of India. Parliament has exclusive power to make laws with regard to the matters enumerated in List I of Seventh Schedule and the Legislature of the State has exclusive power to make laws with respect to any matters enumerated in List II of the Seventh Schedule. With regard to the Concurrent List Parliament and the State Legislature have power to make laws with respect to any of the matters with regard to the said List.

Article 254 of the Constitution of India runs as follows:

254.(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 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 been 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 at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

Thus, it is clear that in case 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 provision of any 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 will be declared void. The question of repugnancy arises with regard to the matters enumerated in Concurrent List (List III of the Seventh Schedule) as with regard to the same matter both the Parliament and the State Legislature have power to legislate. However, if the law made by the Legislature of the State with regard to one of the matters enumerated in the Concurrent List is found to be repugnant to the law made by the Parliament, then the law made by the Legislature of the State will prevail provided the law made by the Legislature of the State has been reserved for consideration of the President and has received his assent. However, the Parliament has power at any time to add, amend, vary or repeal the law so made by the Legislature of the State.

The Parliament and the State Legislature both have power to make law with regard to Dowry as it is under Entry No. III. The Parliament had enacted the law and provided for prior sanction before taking cognizance and to the same effect was the amendment in the Bihar Act. Later on, provision was amended by the Central Act. According to the Central Act, no sanction is required before taking cognizance whereas according to the State Act sanction of the competent authority is required before taking cognizance. Both are contrary to each other. In other words, the law made by the Legislature of State is repugnant and as such to that extent it is void. Admittedly, the State Amendment has neither been reserved for consideration of the President nor has received his assent and as such the same cannot be saved under Article 254(2) of the Constitution of India. According to the proviso, Parliament is competent to amend, vary or repeal the law so made by the Legislature of State. In view of the subsequent amendment of the Central Act the provision of Bihar Act requiring sanction by the competent authority is repugnant and to that extent it is void. In terms of proviso to Article 254 of the Constitution of India the Parliament has power to add, amend, vary or repeal the States, Law also at any time but such question does not arise in this case. The Parliament has subsequently amended the Central Act and after going through both the provisions it is clear that there is direct conflict between the two provisions as one cannot be obeyed without disobeying the other. Section 4 of the Central Act says that no sanction is required before taking cognizance whereas the State Law says that sanction is required before taking cognizance and as such there is direct conflict between the aforesaid provisions and the law made by the Parliament will prevail.

So far Judgment of the Supreme Court in the case of Rajesh Kumar Kejriwal (supra) is concerned, in the aforesaid case Bihar Amendment by Act 4 of 1976 requiring prior sanction before taking cognizance was noticed but the question as to whether the said Amendment is still valid in view of the subsequent amendment of the Central Act in 1984 dispensing with the requirement of previous sanction before taking cognizance was not gone into at all. In that case, their Lordships only went to the provision of Bihar Act and held that according to the same sanction is required before taking cognizance. The said case, in my view, is not an authority on the point that in spite of the amendment of the Central Act doing away with the requirement of previous sanction before taking cognizance u/s 4 of the Act, the State Act is a valid piece of legislation and will prevail in the State of Bihar. I fully agree with the view laid down by the Division Bench in the case of Deo Narayan Lall Das (supra). Accordingly, it is held the cognizance taken against the petitioners under sections 3 and 4 of the Act is valid in the eye of law and no prior sanction of the competent authority for taking cognizance is required as the amendment in Bihar Act 4 of 1976 is repugnant to the Central Act and is held to be void. In the result, both the applications are dismissed.

M.L Visa, J.

I agree.