Tara Singh and anr. vs Balbir Singh

Pritipal Singh, J.—Tara Singh and his wife Smt. Radhawanti in this petition under section 482 of the Code of Criminal Procedure that the complaint dated September 22, 1988 filed by the respondent Balbir Singh against the present petitioners and their son Kishan Singh, and the order of the Chief Judicial Magistrate, Hissar dated September 28, 1983 registering the complaint, as also the subsequent proceedings taken by the Chief Judicial Magistrate in pursuance of the complaint be quashed.

The relevant facts are that Paramjit Kaur daughter of the respondent Balbir Singh was married to Kishan Singh son of the petitioners on October 3, 1982, at Hissar. The respondent filed the impugned complaint (Annexure P2) in the Court of the Chief Judicial Magistrate, Hissar on September 22, 1983, under sections 6 and 7 of the Dowry Prohibition Act (hereinafter called ''the Act'') and under section 406 of the Indian Penal Code, after obtaining saction of the District Magistrate, Hissar, (Annexure P.1), alleging that as consideration of the aforesaid marriage dowry consisting of various articles was given to the petitioner which they have not transferred to the bride Paramjit Kaur and have misappropriated the same. The Chief judicial Magistrate ordered on September 28, 1983 (annexure P. 3) that the complaint be registered. The petitioners and their son Kishan Singh were summoned by the Chief Judicial Magistrate on November 12, 1983 (annexure P.4) under the aforesaid sections.

The contention of the petitioners is that when the complaint was filed by the respondent no offence had been committed under section 6 of the Act and as such the Chief Judicial Magistrate could not take cognizance thereof. It said that the statute permitted the petitioners to transfer the dowry, if they had received any, to the bride within one year of the marriage under section 6 of the Act and the offence under this section could have been considered committed only after the expiry of period of one year. It is contended that on the date on which the complaint was filed the period of one year had not expired and in such circumstances neither the complaint was maintainable nor the Chief Judicial Magistrate could have passed an order of summoning them in pursuance of the complaint.

The respondent''s counsel has contended that under section 7(b) of the Act as applicable in the State of Haryana it was incumbent upon the respondent to have filed the complaint within a period of one year from the date of marriage and so the complaint was maintainable and the petitioners could be summoned in pursuance thereof by the Chief Judicial Magistrate.

The provision of sections 6 and 7(b) of the Act are manifestly anomalous. Section 6 lays down that where any dowry is received by any person other than the bride that person had to transfer the same to the bride within one year of the marriage and if he fails to do so within the prescribed period, he shall be punishable for violation of this section. In other words the offence is committed only after the expiry of one year from marriage if the person receiving the dowry fails to transfer the same to the bride within that period. Section 7(b) provides that no court shall take cognizance of any such offence except on a complaint made by the bride, her parents or brother or a Gazetted Officer specially authorized by the State Government in this behalf, within a period of one year from the date of the marriage. It is not understandable as to how a complaint under section 6 can be made within a period of one year from the date of marriage if the commission of the offence matures one year after the marriage. This anomaly was noticed by a Single Bench of this Court in Major Sudarshan Lal Dhir and others v. Mrs. Neelam Dhir, 1977 P.L. J. Cr 164 and the learned Judge observed that hopefully the Legislature will step in and clarify the position. In that case the Court declined to exercise the discretion under section 482 of the Code of Criminal Procedure on the ground that the period of one year had already expired and in any case the complaint was also under section 406, Indian Penal Code. In the present case the marriage took place on October 3, 1982 and although the complaint was filed within one year of the marriage, i.e. on September 28, 1983, the Chief Judicial Magistrate had passed the order of summoning the petitioners on November 12, 1983, after the expiry of the period of one year.

Apart from any other consideration the complaint and the proceedings taken in pursuance thereof by the Chief Judicial Magistrate cannot be quashed because the petitioners are also alleged to be guilty under section 406, Indian Penal Code.

Hence, despite the anomalous position created by the irreconcilable sections 6 and 7 of the Act, it is not a fit case in which the exercise of the discretionary powers under section 482 of the Code of Criminal Procedure are called for. This petition is, therefore dismissed. The parties are directed to appear before the Chief Judicial Magistrate, Hissar, for further proceedings on December 17, 1984.