Santosh Tyagi and others vs State of M.P. and another

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr. P.C. for quashing the proceedings of Cri. Case No. 205/2009 pending in the Court of JMFC, Guna. Brief facts of the case are that respondent No. 2/complainant filed a private complaint against the petitioners and Maheshwar @ Vicky that marriage of respondent No. 2/complainant was solemnized with Maheshwar @ Vicky on 3.6.2006 according to Hindu customs and rites. After marriage the in-laws of respondent No. 2/complainant were not satisfied and started demanding cash of Rs. Two Lacs and also started harassing and beating the complainant. In January, 2008 petitioners have stated that unless the respondent No. 2/complainant brings cash of Rs. Two Lacs, she would not be allowed to reside with them, then complainant expressed inability, then she was beaten by the petitioners. Thereafter, husband of the respondent No. 2/complainant left the respondent No. 2/complainant to her parent''s home. It is prayed that the articles, which were given at the time of marriage by the parents of the respondent No. 2/complainant, be directed to be returned by the petitioners.

It is stated that on the basis of the aforesaid complaint learned Magistrate has taken cognizance u/s 4 & 6 of the Dowry Prohibition Act. Being aggrieved by the same, this petition has been filed.

It is submitted that impugned order taking cognizance is illegal and abuse of process of law. It is further submitted that prima facie the charge u/s 4 & 6 of Dowry Prohibition Act is not proved. It is also submitted that earlier respondent No. 2/complainant has lodged the report upon which Crime No. 116/2008 at P.S. Tila Jamalpura, Bhopal was registered and after investigation charge sheet was filed. Charges u/s 498-A of IPC and u/s 4 of Dowry Prohibition Act were framed. It is further submitted that the petitioners have been acquitted vide judgment dated 23.11.2011 passed in Cri. Appeal No. 410/2010 by 9th ASJ, Bhopal, therefore, petitioners cannot be prosecuted twice for the same allegations. It is prayed that criminal proceedings initiated against the petitioners on the basis of the complaint and pending in the Court of JMFC, Guna be quashed.

Learned counsel for the respondent No. 2/complainant submits that the proceedings u/s 498-A of IPC was the different proceedings. The proceedings in the instant case has been initiated by respondent No. 2/complainant for returning the articles, which were given by her parents at the time of marriage and the same were kept by the petitioners.

I have perused the record. As per the report lodged by the respondent No. 2/complainant at P.S. Tila Jamalpura, it appears that Crime No. 116/2008 u/s 498-A of IPC has been registered. However, charge sheet was filed u/s 498-A of IPC read with Section 4 of the Dowry Prohibition Act. From the copy of the judgment dated 23.11.2011 passed by 9th ASJ, Bhopal in Cri. Appeal No. 410/2010, it appears that petitioners and husband of the complainant Maheshwar @ Vicky were convicted u/s 498-A of IPC read with Section 4 of Dowry Prohibition Act by JMFC, Bhopal vide judgment dated 15.7.2010 in Cri. Case No. 13755/2008. The petitioners have preferred the appeal, which was allowed and the petitioners have been acquitted for the charges u/s 498-A of IPC read with Section 4 of Dowry Prohibition Act.

Application filed by the respondent No. 2/complainant u/s 4 & 6 of Dowry Prohibition Act, it is stated that as per the list the dowry was given. From the list annexed with the application it appears that it is not signed by anyone. Rule 2 of The Dowry Prohibition (Maintenance of Lists of Presents To The Bride And Bridegroom) Rules, 1985 provides as under.:-

Rules in accordance with which lists of presents are to be maintained.-

(1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride.

(2) The list of presents which are given at the time of marriage to the bridegroom shall be maintained by the bridegroom.

(3) Every list of presents referred to in sub-rule (1) or sub-rule (2)-

(a) shall be prepared at the time of the marriage or as soon as possible after the marriage,

(b) shall be in writing,

(c) shall contain,-

(i) a brief description of each present;

(ii) the approximate value of the present;

(iii) the name of the person who has given the present; and

(iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship;

(d) shall be signed by both the bride and bridegroom.

Explanation 1.- Where the bride is unable to sign, she may affix her thumb-impression in lieu of her signature after having the list read out to her and obtaining the signature, on the list, of the person who has so read out the particulars contained in the list.

Explanation 2.- Where the bridegroom is unable to sign, he may affix his thumb-impression in lieu of his signature after having the list read out to him and obtaining the signature, on the list of the person who has so read out the particulars contained in the list.

(4) The bride or the bridegroom may, if she or he so desires, obtain on either or both of the lists referred to in sub-rule (1) or sub-rule (2) the signature or signatures of any other person or persons present at the time of the marriage.

Thus, in absence of such list as required under sub-Rule (3) of Rule 2 of The Dowry Prohibition (Maintenance of Lists of Presents To The Bride And Bridegroom) Rules, 1985, prima facie it cannot be said that the dowry was given as per the list annexed with the application.

As noticed earlier the petitioners have been tried for the charges u/s 4 of the Dowry Prohibition Act alongwith Section 498-A of IPC. They have been acquitted by the appellate Court, hence again taking cognizance by the learned Magistrate on an application filed by the respondent No. 2/complainant under Sections 4 & 6 of Dowry Prohibition Act and issuing notice is illegal in view of the provisions of Section 300 of Cr. P.C., which provides as under.:-

Person once convicted or acquitted not to be tried for same offence.-

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged u/s 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or of section 188 of this Code.

Explanation:- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.

Section 300 of the Cr. P.C. embodies the principles of Article 20(2) of the Constitution of India also provides rule of double jeopardy. In the instant case as mentioned earlier the petitioners have been tried for the charge u/s 4 of the Dowry Prohibition Act and it is not proved that dowry was given at the time of the marriage as there is no list signed by the bride or the bridegroom as required under Rule 3 of The Dowry Prohibition (Maintenance of Lists of Presents To The Bride And Bridegroom) Rules, 1985, therefore, the continuance of criminal proceedings pending in the learned trial Court against the petitioners certainly would amount to be a abuse of process of law. In view of the above the petition is allowed and the proceedings of Cri. Case No. 205/2009 pending in the Court of JMFC, Guna are quashed.