Madras High Court
S.V. Ramamurthy vs The Secretary To Government Of Tamil ... on 28 April, 2006
Author: A.P. Shah
Bench: A.P. Shah, Prabha Sridevan
ORDER A.P. Shah, C.J.
Page 1778
1. The petitioner has filed this P.I.L seeking a mandamus directing respondents 1 and 2 to engage the services of "Dowry Prohibition Officer" in terms of Section 8-B of the Dowry Prohibition Act, 1961 (hereinafter called as 'the Act' for brevity) read with Rule 5 of the Tamil Nadu Dowry Prohibition Rules, 2004 (hereinafter called as 'the Rules' for brevity) to receive complaints and investigate and to file chargesheets under the Act without interference of the police officers excepting in cases where Dowry Prohibition Officer seeks the assistance of police under Clause (xxi) and (xxii) of Rule 5 of the Rules.
2. The petitioner is a practicing Advocate and a resident of Chennai. He has two sons. His second son was married to one Mahalakshmi on 23rd January 2004. The daughter-in-law of the petitioner has lodged a complaint with the third respondent, the Commissioner of Police, Chennai alleging that the petitioner and his family members had demanded dowry of Rs. 25 lakhs from her. On the basis of this complaint, a non-bailable warrant was issued by the concerned Magistrate and the petitioner had obtained an anticipatory bail from the Principal Sessions Judge, Chennai.
Page 1779
3. The complaint filed by the daughter-in-law is under Section 4 of the Dowry Prohibition Act and under Sections 498-A and 506 of the Indian Penal Code. The complainant has alleged that just one day before the marriage, her father-in-law i.e., the present petitioner, demanded from her father a sum of Rs. 25 lakhs as dowry and threatened that if the bride's family does not agree for this, the marriage will not be solemnized. Since the marriage was to be solemnized next day, the parents of the complainant had no other option, considering their daughter's welfare, but to agree to pay Rs. 25 lakhs. On the assurance given by her parents the marriage was solemnized on 23rd January 2004. After the marriage, the complainant went to U.S.A and stayed with her husband. As the complainant's parents were unable to meet the demand of Rs. 25 lakhs, her husband started harassing her. She was treated like a slave. Her husband even disconnected the telephone connection with a view to deprive her from contacting her parents. Meanwhile, she became pregnant and therefore, her mother and brother went to America in January 2005. The complainant's husband quarreled with them and assaulted the complainant and drove her out of the house. The complainant lodged a complaint with the American police and also requested the police to protect her from husband's further harassment. The husband was arrested by the American police and he was directed not to have any contact with his wife, or her relations. In the meantime, she gave birth to a female child on 19.2.2005. The complainant's relations met the husband and his parents and tried to pacify the husband and requested him to live together, but he refused. The petitioner insisted that since the demanded amount has not been paid, his son will not live with her or her child. Finally the complainant procured a new passport for her baby and came back to India, and lodged a complaint with the third respondent and an FIR came to be registered under Section 4 of the Dowry Prohibition Act and under Sections 498-A and 506 of the Indian Penal Code.
4. In this petition the petitioner has claimed that the police have no authority under the provisions of the Act to receive any complaint regarding dowry. The Police also have no right or power to investigate any offence about the demand of dowry supposed to have been made by the petitioner. According to the petitioner, an enquiry into the complaint under the Act has to be undertaken by the Dowry Prohibition Officer, who is appointed by the Government along with the Advisory Committee and the police have no power to take any action on the complaint.
5. The complainant/daughter-in-law is not impleaded in the petition. In W.P.M.P. No. 3443 of 2005 an order of temporary injunction has been passed restraining the police from investigating into the complaint made by the daughter-in-law of the petitioner. It appears that on the basis of the interim relief granted by this Court, more than 300 petitions have been filed in this Court, and the investigations have been stayed in all these cases by this Court. Two Women Organisations namely All India Democratic Women Association and All Living Beings and Environmental Protection Society have got impleaded themselves to the petition and applied for vacating the interim reliefs.
Page 1780
6. We have heard Mr. M. Kalyanasundaram, learned senior counsel for the petitioner, Mr. V. Raghupathy, learned Government Pleader for respondents 1 to 4, Mr. D. Rajagopalan, learned Counsel for the 5th respondent and Ms. D. Nagasaila, learned Counsel for the 6th respondent.
7. The evil of dowry system has been a matter of serious concern to every one in view of its very increasing and disturbing proportions. In 1961 Parliament enacted the Dowry Prohibition Act, 1961. The objects and reasons were set out as follows: -
The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if gives goes ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2000/-. Such a provision appears to be necessary to make the law workable.
8. The Act came into force on 1.7.1961, but it was found that even an enacted law did not help in eradicating or at least lessening the menace. The Supreme Court had occasion to say in Bhagwant Singh v. Commr. Of Police, that (SCC p.352, para 18):
The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation. It is evident that legislative measures such as the Dowry Prohibition Act have not met with the success for which they were designed.
This led to the Criminal Law (Second Amendment) Act bringing stringent criminal provisions to combat the menace and making some amendments in the Dowry Prohibition Act itself giving it more teeth. There was a further amendment to the Act by Act 43 of 1986 making the provisions more stringent and enhancing the punishment for taking or abetting the taking of dowry.
9. In the meantime, the Parliament had introduced Section 498-A in the Penal Code by the Criminal Law (Second Amendment) Act of 1983 which came into force with effect from 25th December 1983. Section 498-A provides that whoever being the husband or 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. Clause (b) of the Explanation to that section shows that the harassment of women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security or is on account Page 1781 of the failure by her or any reason related to her to meet such demand would amount to cruelty for the purposes of Section 498-A IPC.
10. At this stage, we may briefly refer to the provisions of the Dowry Prohibition Act and the Rules framed by the State Government under the said Act. Section 4 of the Act makes any demand, directly or indirectly, from the parents or other relatives or guardian of a bridge 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. Section 7 of the Act provides that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under the Act. Clause (b) of Sub-section (1) of Section 7 states that no Court shall take cognizance of the offence under the Act, except upon - (1) its own knowledge or a police report of the fact which constitute such offence, or (ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organization. Section 8 of the Act makes the offence congnizable, non-bailable and non-compoundable.
11. Section 8-B of the Act empowers the State Government to appoint, as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act. Under Sub-section (2) of Section 8-B of the Act, every Dowry Prohibition Officer shall exercise and perform the following powers and functions: -
(a) to see that the provisions of this Act are complied with;
(b) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;
(c) to collect such evidence as may be necessary for the prosecution of persons committing offences under the Act; and
(d) to perform such additional functions as may be assigned to him by the State Government or as may be specified in the rules made under this Act.
Section 8-B of the Act empowers the State Government by notification in the Official Gazette to confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitation and conditions as my be specified by rules made under the Act. Sub-section (4) of Section 8-B provides for appointment of an Advisory Board Committee of not more than five social welfare workers (out of whom at least two shall be women) from the area in respect of which Dowry Prohibition Officers exercise their jurisdiction under Sub-section (1). Section 10 of the Act confers power on the State Government to make rules for carrying out the purposes of the Act.
12. In exercise of powers under Section 10 of the Act, the Government of Tamil Nadu had framed Tamil Nadu Dowry Prohibition Officers and Advisory Board Rules, 1998. The 1988 Rules have been replaced by the Tamil Nadu Dowry Prohibition Officers and Advisory Board Rules, 2004. In furtherance of the Rules of 2004, the State Government has issued orders in G.O. Ms. No. 39, Social Welfare and Nutritious Meal Programme Department dated 21.3.1998 appointing the District Social Welfare Officers as Dowry Page 1782 Prohibition Officers. A further notification has been published in the Official Gazette constituting the Advisory Boards comprising of the members for all districts in the State to assist the respective Dowry Prohibition Officers.
13. Rule 2(e) of the said Rules defines "Police Officer", which means District Superintendent of Police of the division concerned. Rule 2(c) defines "Dowry Prohibition Officer" as an Officer appointed as such by the Government under Section 8-B of the Act. Rule 5 of the Rules deals with additional functions to be performed by the Dowry Prohibition Officer. Clause (xxi) of Rule 5 provides inter alia that the Dowry Prohibition Officer, for the purpose of making enquiries, may take the assistance of any police officers and other officers to assist him in the peformance of his functions and it is provided that it shall be the duty of the police officer to render all assistance required by the Dowry Prohibition Officer. Clause (xxii) of Rule 5 provides that the Dowry Prohibition Officer shall render all assistance to the police in investigating the complaint filed under the Act and the Court in the trial of the case.
14. Rule 7 provides that in all cases where complaint is investigated by the Dowry Prohibition Officers, when there is a prima facie finding as to the commission of an offence, report shall be submitted to the competent officer for prosecuting the offenders along with the statements recorded, all other connected documents of the proceeding and a brief account of his findings and this report shall be deemed to be a report under Section 173 of the Criminal Procedure Code, 1973. Rule 9 prescribes the limitation and condition subject to which the Dowry Prohibition Officer may exercise powers of police officer for the purpose of investigation and submission of report before the competent Magistrate. Sub-rules (2) and (3) authorize the Dowry Prohibition Officer to apply for search warrant from the concerned District Magistrate and to search the residential premises without a warrant, but with certain conditions.
15. A conjoint reading of Rule 5 read with Rules 7 and 9 shows that the role of the police officer is not completely excluded by the Rules and the police officer may also go, investigate a case and later on register the same as non-cognizable. From Section 7(b)(i) of the Act, it is clear that the Court can take cognizance of an offence under the Act also upon a police report.
16. In the present case, the complaint is filed under Section 4 of the Act and also under Section 498-A of the Indian Penal Code. Under Section 198A of the Code of Criminal Procedure, no Court can take cognizance of an offence punishable under Section 498-A except upon a police report of facts, which constitute such offence or upon a complaint made by the person aggrieved by the offence or by the relatives of the aggrieved person named in the section. It is obvious that the offence under Section 498-A cannot be investigated by a Dowry Prohibition Officer whose jurisdiction is restricted to offences under the Act and not offences under the IPC, which are also connected to demand for dowry. In respect of such an offence, it is only the police, who have got the power to investigate into the complaint under Section 198A of the Code of Criminal Procedure and the Court can take cognizance upon such police report on facts, which constitute such offence. Merely because the complaint is also in respect of offences under Sections 3 and 4 of the Act, the same cannot oust the power of the police to investigate into the offence under Section 498-A of the Indian Penal Code as well as under Sections 3 and 4 of the Act.
Page 1783
17. Mr. Kalyanasundaram, learned senior counsel appearing for the petitioner urged that when a special Act makes a special offence and a special procedure, offence under it must be dealt with under that Act itself. If an act is an offence under two different Acts, it should be dealt with under the special Act, if it falls strictly within it rather than the general law. In this connection, he relied upon Sections 4 & 5 of the Criminal Procedure Code. He submitted that in the absence of any specific provision to the contrary, the Code shall not affect any special law or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force. In our opinion, neither of the sections is attracted to the facts of the present case. In this case, the complaint is filed under Section 498-A of the Indian Penal Code, which is not an offence under the special enactment and which can be investigated only by the police and not by a Dowry Prohibition Officer. Under Section 198A of the Code of Criminal Procedure no Court shall take cognizance of the offence under Section 498 of the Penal Code, except upon police report or of course upon a complaint by the person aggrieved or her relatives specifically mentioned in the Section. The Rules framed by the State Government do not exclude the power of the police officer to enquire into the complaints of demand of dowry and in fact Rule 5(xxii) specifically provides that at all stages the Dowry Prohibition Officer is liable to assist the police officer in carrying out the investigation of the case.
18. In our opinion, this petition is strictly not a PIL, but an effort by the accused to scuttle the due process of law. In these circumstances, we find absolutely no merits in the writ petition and the writ petition stands dismissed. Interim stay already granted stands vacated. W.P.M.P. Nos. 34443 & 39524 of 2005 are dismissed and W.V.M.P. Nos. 2204 of 2005 and 698 of 2006 are allowed. There will be no order as to costs.