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DELHI HIGH COURT
Mrs. Leila Seth, J.
Lajpat Rai Sehgal and others - Appellant
versus
State - Respondent
Cri. Misc. No. 2 of 1982
Decided on 11th February, 1983
For the Petitioners: Mr. K. K. Sud, Advocate.
For the Respondent: Mr. D. R. Sethi, Advocate.
Held that sanction is essential. It is a pre-condition to action. As above sanction was applied for on 24th November, 1980 and granted on 8th January, 1981. 45 days in processing. It would appear to me, that this period must be excluded. 470(3), Criminal Procedure Code makes this position abundantly clear. (Para 13)
Since the (Dowry) Act is silent with regard to exclusion of time spent in obtaining sanction, the provisions of the Code come into play. As such in the absence of any provision on this aspect in the Act, the time spent in obtaining sanction, must be excluded in terms of section 470(3) of the Code. (Para 16)
As there is no dispute, that if this time is excluded, the complaint is within time, I am of the opinion that the complaint is not time barred. (Para 17)
(ii) Dowry Prohibition Act, 1961-Section 7(b)-Indian Penal Code, 1860 Chapter XX-Criminal Procedure Code, 1973-Section 198-Who can lodge the complaint under Dowry Act? (Any person)
Held in the absence of any specific description as to the persons who can lodge the complaint under the Act, it would appear to me that a complaint can be preferred by any person. The position pertaining to cases arising under Chapter XX, Indian Penal Code, i.e., offences relating to marriage, is, different. In those cases, as specifically mentioned in section 198 of the Code, only the aggrieved party as enumerated therein, is competent to prosecute the offender. But section 198 of the Code is not applicable to offences under this Act. (Para 18)
1979 Chandigarh Cr. Cases 86 disting.
Further, if a restraint is placed with regard to the person who can lodge the complaint then the statute so specifically provides, as has been done in sections 195 to 199 of the noticed. It took Section Code. It is, therefore, clear that in the facts and circumstances of the present case the complaint by the Investigating Officer can be a complaint within the terms of section 7(b) of the Act. (Para 21)
(iii) Dowry Prohibition Act, 1961-Section 7(b)-Criminal Procedure Code, 1973-Sections 2(d), 2(r), 4(l)(2)-Meaning of complaint-Police Report of a non-cognizable offence under Dowry Act-Whether a complaint? (Yes)
Held though complaint has not been defined in the Act the meaning of the word in common parlance is "a grievance". (Para 22)
A harmonious reading of these provisions would indicate that a police report of a non-cognizable offence would be deemed to be a complaint. (Para 25)
The common parlance or dictionary definition would indicate that anything brought to the notice of the court by way of an injustice or injury is a complaint. This is a wide connotation. Apart from this, 'complaint' has been defined in section 2(d) of the Code and the explanation thereto; from the said provision, it would appear, that a complaint would include a report, made by a police officer after investigation, and this would be deemed to be a complaint; and the police officer making such a report, the deemed complainant. (Para 33)
The (Dowry) Act contains no provisions as to how a case is to be investigated, inquired into or dealt with. In the absence of any specific provisions, as already noticed, the Code must apply in view of section 4(2) of the Code. The exclusion of the Code is only to the extent specifically provided. (Para 35)
It is, therefore, apparent that the Act is not a complete code and apart from what is actually provided for in the Act, the Code must apply. (Para 37)
It would, therefore, appear, in view of section 2(d) of the Code, that all investigations by the police of non-cognizable offences, resulting in a report must be deemed to be a complaint as distinct from being a complaint. (Para 41)
(iv) Dowry Prohibition Act, 1961-Sections 2 and 4 - Demand made by petitioners from father of girl with regard to money, clothes and various articles in consideration of marriage-Whether offence within the meaning of section 2 read with section 4 of Dowry Act is made out? (Yes)
Held section 4 of the Act pertains only to dowry demands directly or indirectly from the parents or guardian of the bride or bridegroom; whereas section 2 defines dowry as property or valuable security given or agreed to be given by persons mentioned therein as consideration for the marriage. Though, there does appear to be some inconsistency between the provisions of section 2 and 4 of the Act, in the facts of the present case it does not appear to be relevant, a, the complaint clearly indicates that property or valuable security was demanded by the petitioners and Mr. V. D. Khanna, father of Prem Kumari did comply partially with these demands. (Para 54)
In the circumstances, it cannot be said that no prima facie case is made out. (Para 55)
JUDGMENT
Leila Seth, J. - The point in issue in this petition, pertains pre-eminentily to the interpretation of certain provisions of the Dowry Prohibition Act, 1961 and sections 2(d) and (r) and 470(3) of the Code of Criminal Procedure.
2. In brief, the facts are, that petitioner No. 1, Lajpat Rai Sehgal, married Prem Kumari on 3rd March. 1980. This was in consequence of the engagement which took place on 26th January, 1980. Prem Kumari's father, Mr. Vishan Dass Khanna, asserted that a list had been given to him on 25th January, 1980 by Lajpat Rai Sehgal and Nand Kishore Chopra, his brother-in-law, petitioner No. 2. The "shagun" was given in accordance with the list. Thereafter, on 27th January, 1980, certain dowry demands were made. He gave what he possibly could at the marriage, but obviously Lajpat Rai Sehgal's family was not satisfied. As such, they made a fresh demand on 4th March, 1980, the day after the marriage. Thereafter, repeated demands were made through Nand Kishore Chopra and his wife Kanta Chopra, petitioner No. 3 Lajpat Rai Sehgal's sister, for a transistor ratio, a fan and furniture etc.
3. On 9th May, 1980 Prem Kumari died of burns. Her father lodged a first information report at police station Moti Nagar on 13th May, 1980. It was F.I.R. No. 364/80, under section 306, Indian Penal Code. The case was investigated by the Criminal Investigation Department (Crimes), Delhi Police. Subsequently, it was transferred to the Central Bureau of Investigation; however, it was sent to the Criminal Investigation Department (Crimes). No challan under section 306, Indian Penal Code, has been filed against the petitioners.
4. Un 17th July, 1980, Sub-Inspector Pratap Singh applied, under section 155(2), Criminal Procedure Code, for permission to investigate the non-cognizable offences under sections 3 and 4 of the Dowry Prohibition Act, 1961 (to be referred to in short as "the Act"). On the same date, the permission was granted by the Additional Chief Metropolitan Magistrate, Tis Hazari, Delhi.
5. On 24th November, 1980 sanction to prosecute the petitioners was applied for. This was granted by the District Magistrate on 8th January, 1981. On 10th March, 1981 the complaint challan was filed; summons were issued for 10th April, 1981. Thereafter, the matter was heard on 17th August, 1981 and 31st August, 1981. Certain objections as to the maintainability of the proceedings were taken by the petitioners.
6. On 7th November, 1981, the impugned order was passed, holding, prima facie, that an offence under section 4 of the Act had been committed by the petitioners. As such, notice under section 251, Criminal Procedure Code, was issued to the petitioners on the same date.
7. The said notice reads as follows:
"It is alleged against you that between 27.1.80 to 4.3.80 you had been demanding dowry consisting of Fridge, Radio, Double Bed, other good quality material etc. from the parents of Smt Prem alias Santosh who was married to Lajpat Rai Sehgal accused as a consideration of said marriage and thereby committed an offence punishable under section 4 of the Dowry Prohibition Act. Show cause why you should not be punished for the said offence."
8. By this present petition, the petitioners are challenging both the order and the notice dated 7th November, 1981 and praying that the proceedings pending against them be quashed.
9. Mr. K.K. Sud, learned counsel appearing for the petitioners, raised the following point:
(1a) The complaint was time barred, as the time spent in obtaining the sanction, was not to be excluded in computing the period of a year as provided in section 7(b) of the Act.
(2a) Under section 7(b) of the Act a complaint has to be filed by the aggrieved party; as such, a complaint by the investigating officer is not in compliance with the said provision.
(3a) A report by a police officer, in the case of a non-cognizable offence, which has been investigated after obtaining permission under section 155(2), Criminal Procedure C
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