IMPORTANT POINT
Section 8-A of the Dowry Prohibition Act is constitutionally and legally valid.

Headnote:Constitution of India, 1950 - Arts. 14, 20 (3) and 21- Dowry Prohibition Act, 1961 - Section S-A - Burden of proof in certain cases - Constitutional validity of Section 8-A challenged." Whether Section 8-A is violative of Articles 14, 20(3) and 21 of Constitution? - (No) - Initial burden is always on prosecution to prove basic ingredients for bringing home charges to accused and that will never shift on accused u/s. 8-A - Burden of proof on accused as contemplated in Section 8-A can be discharged on preponderance of probabilities.
       Held: It is true that if Section 8-A of the Act, is read literally, an impression is gathered there from that once an accused is prosecuted and charged for the offences under Sections 3 and 4 of the Act, then the entire burden is on him to show that he had not committed any offence and the prosecution may not be required to prove anything else except placing implicit reliance on the contents of the charge framed against the accused. But, on a closer scrutiny, such first-hand impression about the section gets dispelled. It has to be kept in view that section deals with burden of proving innocence in given cases. Therefore the section, in substance, creates a Rule of Evidence and deals with casting of burden of proof in certain cases on the accused. A close reading of the section shows that merely because the accused is charged with offences under Sec. 3 or Section 4 of the Act, the initial burden which is always on the prosecution to prove basic ingredients of the sections for bringing home the charges to the accused will not get displaced or dispensed with. (Para 5)
       Further Held: So far as Section B-A is concerned, all that it mandates is that the burden of proof that he has not committed such an offence is on the accused. Meaning thereby, that it will be for the accused to show that he had not taken or given or abetted in giving or taking any property or valuable security in connection with the marriage of the said parties. He will have to show that last ingredient of the offence being ingredient No. (vi) is not established. The only burden cast on the accused is to prove that he had not committed offence of giving or taking or abetting the giving or taking of dowry as contemplated by Section 3 of the Act. It is not as if he has also to prove that he has not taken or given or abetted in giving or taking any property or valuable security or that he has to disprove all the ingredients (i) to (vi), As per, Section 8-A, once prosecution establishes beyond reasonable doubt the basic ingredients (i) to (v), burden shifts on the accused to prove that the last one is not established viz., that he had not taken or given or abetted in giving or taking any property or valuable security in connection with the marriage of the said parties. The section, of necessity, will have to be read down as aforesaid. (Para 6)
       Section 8-A, in its operation, will have to be read down in the light of Sections 2, 3 and 4 of the Act. Once it is so read down, the challenge to the said section on the anvil of Articles 14, 20 (3) and 21 of the Constitution of India, would not survive. (Para 7)
       Consequently Held: Legislature has carved out a separate classification for the accused concerned with the taking or receiving of dowry or demanding such dowry. They form a class by themselves and they stand apart from other accused. These are offences against marriage and against the society. They strike at the very root of an orderly and peaceful social life and involve very pernicious effects including resultant graver offences like bride burning and dowry death. For eradicating such menace from the society, so that the society can be put on a secure footing if a special class of offenders dealt with by the Act, is carved out for a special treatment regarding a stringent burden of proof as per Section 8-A of the Act, it cannot be said that the said classification underlying the section is not a reasonable classification or that it has no rational nexus to the object sought to be achieved, namely, eradication of such social evils from the society, which is the prime object underlying the Act. (Para 12)
       If in prosecution for offence of dowry death, such presumption under Section 113-A of the Evidence Act, can be validly raised and the burden can be shifted on the accused, then in prosecutions for demanding dowry or for taking or giving dowry or for its abetment the shifting of burden of proof on the accused under Section 8-A can equally validly be countenanced. Such rules of evidence dealing with matrimonial offences having grave consequences on social order cannot be faulted on the touchstone of Articles 14, 20(3) or 21 of the Constitution of India. (Para 15)
       Result: Referred question answered accordingly.

ORDER

S.B. Majmudar, C.J. - A Division Bench of this Court consisting of Hiremath and Sreenivasa Reddy, JJ., by the Order dated 13th April, 1993, has referred the following point of law for decision of the Full Bench as per Section 7 of the Karnatka High Court Act, 1961. The said point of law reads as under:

“Whether Section 8-A of the Dowry Prohibition Act, 1961 is constitutionally and legally valid?"

2. We have heard learned advocate appearing for the appellant-accused and the learned Advocate-General for respondent State of Karnataka, as well as the learned Standing Counsel for the Central Government, who has waived service of notice issued to the Attorney-General as the constitutional validity of the provision of the Central Act, is under challenge

3. Section 8-A of the Dowry Prohibition Act, 1961 (hereinafter referred to as the 'Act') reads as under:

"8-A.Burden of Proof in certain cases: - Where any person is prosecuted for taking or abetting the taking of any dowry under Section 3, of the demanding of dowry under Section 4, the burden of proving that he had, not committed an offence under those sections shall be on him."

The learned advocate appearing for the appellant-accused vehemently contended that on a mere look at the said provision, it becomes clear that once a charge-sheet is filed against the concerned accused on the allegation that they have committed an offence under Section 3 or Section 4 of the Act, the entire burden to prove innocence rests on the accused and it may be that the prosecution may not lead any evidence and straightaway on the filing of such charge-sheet against the accused, the accused will be called upon to establish their innocence. That such a provision is highly arbitrary and unreasonable and it violates the fundamental rights of the accused guaranteed under Article 14, Article 20 (3) and Article 21 of the Constitution of India. Learned Advocate General and the learned Standing Counsel for the Central Government on the other hand contended, that the Section refers to burden of proof and is a rule of evidence. It is a procedural provision. It is well-known that in various acts dealing with criminal offences, burden to prove certain facts rests on the shoulders of the accused. But that does not make the provision unconstitutional and that once the prosecution proves basic facts for bringing home the offence with which the accused is charged, it is legally permissible for the Legislature to shift the burden for disproving remaining ingredients of the offence on the concerned accused. Consequently, the impugned provision is in no way unconstitutional. Learned advocates of respective parties have invited our attention to number of judgments and relevant provisions of other Acts dealing with criminal offences, for supporting their respective contentions.

4. For resolving the aforesaid controversy posed for our consideration, it will apposite in the first instance to look at the relevant provisions of the Act. The Act was enacted in 1961 by the Parliament. The Statement of Objects and Reasons underlying the said enactment, reads as under:

"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 given does 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, ornament'), etc., which are customary at marriages provided the value the

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IMPORTANT POINTSection 8-A of the Dowry Prohibition Act is constitutionally and legally valid.

IMPORTANT POINT
Section 8-A of the Dowry Prohibition Act is constitutionally and legally valid.