Jharkhand High Court
Ram Bilash Tiwari ? Ram Bilash Tiwary vs State Of Jharkhand & Ors on 25 September, 2012
Author: R. R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P. No. 771 of 2011
Ram Bilash Tiwari @ Ram Bilash Tiwary.......Petitioner
VERSUS
State of Jharkhand and others........ .Opposite Parties
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr. Jitendra S.Singh
For the State : Mr.Gauri Shankar Prasad, A.P.P
4/ 25.9.12. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State.
This application has been filed for quashing the order dated 28.4.2007 passed in Maheshpur P.S. Case no.89 of 2006 (G.R.No.396 of 2006) whereby and whereunder cognizance of the offence punishable under Section 498A/34 of the Indian Penal Code and also under Section 3/ 4 of the Dowry Prohibition Act has been taken against the petitioner.
At the outset, it is necessary to be stated that the petitioner is none else than the father of the informant who lodged a case alleging therein that she had married to one Arvind Kumar Tiwary. At the time of marriage, a sum of Rs.8 lacs and other articles were given as presents. When she came to her in-laws' place, husband and also other accused persons (relative of the husband) started putting forth demand of Rs.4 lacs and on account of non-fulfillment of the demand of dowry, she was being subjected to assault and other kinds of torture by the accused person.
On such allegation, Maheshpur P.S. Case no.89 of 2006 was registered under Section 498A of the Indian Penal Code and also under Section 3/ 4 of the Dowry Prohibition Act. The matter was taken up for investigation.
After completion of the investigation, charge sheet was submitted not only against the husband of the informant and his relatives but also against this petitioner, father of the informant, who had made statement before the police, during investigation that he had given cash and other articles in the marriage of his daughter and when her daughter went to her in-laws' place, husband and other relative of the husband subjecting her to torture on account of non- fulfillment of demand of dowry.
On submission of the charge sheet, cognizance of the offences was taken not against the accused persons but also against the petitioner, vide order dated 28.4.2007 which is under challenge.
Mr.Jitendra S.Singh, learned counsel appearing for the petitioner submitted that presumably for the reason that statement is there that a sum of Rs.8 lacs and also other articles were given at the time of marriage, charge sheet was submitted against this petitioner for the commission of offence under Section 3 of the Dowry Prohibition Act and on that basis, even the cognizance of the offence was taken against the petitioner not only under Section 3 of the Dowry Prohibition Act but also under Section 4 of the Dowry Prohibition Act as well as under Section 498A of the Indian Penal Code, though the petitioner, in any event, cannot be said to have committed offence under Section 498A of the Indian Penal Code and also under Section 4 of the Dowry Prohibition Act.
So far the offence under Section 3 of the Dowry Prohibition Act is concerned that also never get attracted as the presents or even cash given at the time of marriage without there being demand from the side of the accused persons will never be taken to be the 'dowry' in terms of Section 2 of the Dowry Prohibition Act.
Further it was submitted that in any view of the matter, the petitioner being aggrieved cannot be proceeded with the trial for an offence under Section 3 of the Dowry Prohibition Act in view of the provision contained in sub-section (3) of Section 7 of the Dowry Prohibition Act which speaks that any statement made by person aggrieved by the offence shall not be subjected to prosecution under the Dowry Prohibition Act.
In the instant case, the petitioner being father of the informant can certainly be said to be the aggrieved person and thereby the court did commit illegality in taking cognizance of the offence either under Section 3 of the Dowry Prohibition Act or under Section 498A of the Indian Penal Code and also under Section 4 of the Dowry Prohibition Act.
In the context of the submission one needs to take notice of relevant provisions of the Dowry Prohibition Act.
Dowry has been defined in section 2 of the Dowry Prohibition Act which reads as follows:
Definition of 'Dowry' - In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly -
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Further Section 3 prescribes for penalty for giving or taking dowry which reads as under:
1. If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable [with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]:
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.
2. Nothing in sub-section (1) shall apply to, or in relation to, -
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf);
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf);
Provided that such presents are entered in a list maintained in accordance with rules made under this Act;
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.
Section 4 does prescribe penalty for demanding dowry which reads as follows:
Section 4. Penalty for Demanding Dowry: If any person demands directly or indirectly from the parents or other relatives or guardians 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 Rs.10,000/-.
Provided that the court may for adequate and special reason to be mentioned in the judgment imposed a sentence of imprisonment for a term of less than six months.
From perusal of sub-section (2) of Section 3, it does appear that if any presents given at the time of marriage either to bride or to bridegroom without there being any demand, cannot be subject matter of prosecution under the Act subject to other condition mentioned under sub-section (2) of Section 3 whereas Section 2 which defines dowry does stipulate that any property or valuable security given or agreed to be given either directly or indirectly can be subject matter of the prosecution under the Act whereas Section 4 does prescribe that if any person demands directly or indirectly from the parents or other relatives or guardians of a bride or bridegroom, he shall be liable to be prosecuted under the Act.
Thus, what is significant to note that one would be liable to be prosecuted under Section 4 only when he put forth the demand of the dowry whereas one in terms of definition of the dowry as given under Section 2 can be prosecuted under Section 3 if he gives property or valuable security other than the presents to the bride or bridegroom even without there being any demand which would be contrary to the mandate and object of the Act.
One such matter as to whether any agreement of giving or taking dowry would construe the demand of dowry fell for consideration before the Hon'ble Supreme Court in a case of Pawan Kumar and others vs. State of Haryana [(1998) 3 SCC 309] wherein their Lordships held hereunder:
"Demand of dowry neither conceives nor would conceive of any agreement. The word "agreement"
referred to in Section 2 of the Dowry Prohibition Act, 1961 has to be inferred on the facts and circumstances of each case. The interpretation that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code."
In such situation, if the provisions as contained in Sections 2, 3 and 4 of the Dowry Prohibition Act are read together and are harmoniously construed one may come to conclusion that one would be liable tobe prosecuted under Section 3 of the Act only when he gives dowry on demand being made.
Here in the instant case, it is never the case of the prosecution that the petitioner gave cash and other articles upon demand being made either by the bridegroom or his other relatives and hence, any cash or articles given by the petitioner at the time of marriage cannot be subject matter of the prosecution under Section 3 of the Dowry Prohibition Act.
So far the offence under Section 498(A) of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act is concerned, it appears to be wholly misconceived, so far this petitioner, who happens to be the father of the informant is concerned.
Under the circumstances, learned Magistrate committed illegality in taking cognizance of the offence under Section 3/ 4 of the Dowry Prohibition Act and also under Section 498(A) of the Indian Penal Code against the petitioner.
Consequently, the order dated 28.4.2007 under which cognizance of the offence as aforesaid has been taken against the petitioner is hereby quashed.
In the result, this application stands allowed.
( R. R. Prasad, J.) ND/