Allahabad High Court
Satish And Anr. vs State Of U.P. And Anr. on 22 December, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED ON 07.12.2022 DELIVERED ON 22.12.2022 Court No. - 84 Case :- CRIMINAL REVISION No. - 1459 of 2014 Revisionist :- Satish And Anr. Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Kundan Rai Counsel for Opposite Party :- Govt. Advocate,Rahul Mehrotra Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Kundan Rai, learned counsel for revisionists and Sri Paritosh Malviya, learned AGA for the State.
2. The facts of the present case reveals that revisionists herein had earlier faced trial being Sessions Trial No. 133 of 2005 for offences under Sections 498A and 304B IPC, wherein by judgement and order dated 07.12.2006, they were granted acquittal.
3. Subsequently, the revisionists and four other accused persons faced another trial wherein by the impugned judgement and order dated 21.12.2013 passed by the Additional Chief Judicial Magistrate, Agra in Complaint Case No. 2164 of 2013 (Pratap Singh vs. Satish and others) they were convicted under Section 406 IPC and Section 3/4 of Dowry Prohibition Act and were sentenced imprisonment for two years' each along with fine of Rs. 5000/- under Section 406 IPC as well as one year each along with fine of Rs. 500/- under Section 4 of Dowry Prohibition Act, in default each has to undergo two months' additional imprisonment. Further they were directed to deposit Rs. 25,000/- as compensation under Section 357 Cr.P.C. The appeal thereof was partly allowed whereby only the present revisionists were convicted and rest of four accused persons were acquitted as well as conviction under Section 406 IPC was also set aside and they were convicted only under Section 4 of Dowry Prohibition Act, however, sentence and the default sentences was not interfered. Under above background, the present criminal revision-petition has been filed challenging impugned judgement.
4. Shri Kundan Rai, learned counsel for the revisionists has submitted that since they were granted acquittal in a trial for under Sections 498A as well as 304B IPC, therefore, on similar facts, they could not be convicted under Section 4 of Dowry Prohibition Act, as allegation for demand of dowry were not found true against them in earlier trial. Subsequent conviction on same facts under Section 4 of Dowry Prohibition Act is in violation of protection granted under Section 300 Cr.P.C. as it would amount to be double jeopardy.
5. The above submissions are opposed by Sri Paritosh Malviaya, learned AGA that scope of allegations under Sections 498A and 304B IPC are absolutely different from scope of offence under Section 4 of Dowry Prohibition Act.
6. Learned counsels have further submitted that Section 300 Cr.P.C. provides that persons once convicted or acquitted not to be tried for same offence. It would apply only where subsequent trial is on same offence or similar in nature but not for distinct offence.
7. Heard learned counsel for the parties and perused the record.
8. Section 300 Cr.P.C. is mentioned hereinafter:
"300. 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 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 under section 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, (10 of 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."
9. In order to consider law on Doctrine of Double Jeopardy, few judgements of Supreme Court are mentioned hereinafter:
Para 33 of Sangeetaben Mahendra Bhai Patel vs. State of Gujarat and another (2012) 7 SCC 621 wherein Supreme Court has held that:
"33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge." (emphasis supplied by Court) Para 16 of State of Rajasthan vs. Bhagwan Das Agrawal and others, (2013) 16 SCC 574 wherein Supreme Court has held:
"16.This Court elaborately dealt with the provisions contained in Section 300 Cr.P.C. in the case of State of Bihar v. Murad Ali Khan, (1988) 4 SCC page 655. Some of the paragraphs are worth to be quoted hereinafter: (SCC pp. 666-67, paras 26-28) "26. Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re-prosecution after acquittal, a protection against re-prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Article 20(2). But difficulties arise in the application of the principle in the context of what is meant by "same offence". The principle in American law is stated thus:
"The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee.
Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if ''each provision requires proof of an additional fact which the other does not' (Blockburger v. United States). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately.
27. The expression "the same offence", "substantially the same offence" "in effect the same offence" or "practically the same", have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of "same offence". Friedland in Double Jeopardy (Oxford 1969) says at p. 108:
"The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are ''substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible...."
28. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: (SCR p. 827) ''4......The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences."
10. Relevant provisions of Indian Penal Code are mentioned hereinafter:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Section 304B in The Indian Penal Code 304B. Dowry death.--"(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
Section 4 in the Dowry Prohibition Act, 1961 "4. Penalty for demanding dowry.--If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."
11. Offence under Section 498A IPC is an offence by husband or relative of husband of a woman subjecting her to cruelty, which is not directly linked with demand of dowry. Cruelty includes mental or physical or both. Therefore, offence under Section 4 of Dowry Prohibition Act, which prescribes penalty of demanding dowry has distinct ingredients i.e. demand of dowry.
12. In regard to ingredients of Section 304B IPC, which is in relation to ''dowry death', there be a death of a woman caused by any burns or bodily injury or occurs otherwise than normal circumstances within 7 years of marriage as well as that 'soon before her death' she was subjected to cruelty or harassment by her husband or relative of her husband ''or in connection with any demand of dowry'. The demand of dowry relates to a period 'soon before the dowry death' which may differ based on facts of each case. In earlier trial, the Trial Court come to conclusion that there was no evidence in regard to demand of dowry soon before the alleged dowry death.
13. In the present case, the revisionists are convicted as modified by the Appellate Court only under Section 4 of Dowry Prohibition Act as referred above. The ingredients of said section are that if any person demands, directly or indirectly, from the parents or other relatives or guardians or bride-groom, as the case may be, any dowry, shall be punished for penalty for demanding dowry. Therefore, the scope of Section would vary i.e. even prior to marriage as well as after the marriage till complaint was filed. Scope of the offence is much wider then demand of dowry for purpose of offence of dowry death.
14. Acquittal under section 498A IPC does not create double jeopardy as subsequent conviction under Section 4 of Dowry Prohibition Act as in latter mere demand of dowry is punishable and element of cruelty is not necessary. Similarly, demand of dowry under Section 304B IPC is qualified with the words "soon before her death" whereas demand of dowry under Section 4 of Dowry Prohibition Act is not qualified with any time period and it may commence before marriage also and may remain till unfortunate death of a woman. As held in Sangeetaben (supra) identity of ingredients of offence is necessary for double jeopardy, whereas in present case, ingredients of section 4 of Dowry Prohibition Act are not identical to ingredients of offence under Sections 498A or 304B IPC.
15. Therefore, event of acquittal under Sections 498A and 304B IPC and subsequent conviction under Section 4 of Dowry Prohibition Act would not fall under 'double jeopardy.'
16. In these circumstances, argument of counsel for revisionists is sans merit. No other submission was raised. However, I have carefully perused impugned judgement and I do not find any illegality or irregularity to interfere with impugned judgement within limited scope of revision.
17. Accordingly, present revision petition is dismissed.
Order Date :- 22.12.2022 Puspendra