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1994 Supreme(Pat) 35
PATNA HIGH COURT
N.Pandey, J.
Shyama Singh
Versus
State Of Bihar
Criminal Miscellaneous No. 15564 of 1993 ;
Decided On : JANUARY 28, 1994
An individual cannot be convicted for an offense under a provision that was not in force at the time of the alleged offense.
Headnote:
DOWRY DEATH - SECTION 304 B OF THE INDIAN PENAL CODE - APPLICABILITY - OFFENCE COMMITTED PRIOR TO INSERTION OF SECTION 304 B - NOT APPLICABLE - ARTICLE 20(1) OF THE CONSTITUTION OF INDIA - PROTECTION AGAINST CONVICTION FOR OFFENCES - NO CONVICTION FOR OFFENCE UNDER PROVISION NOT AVAILABLE ON DAY OF COMMISSION OF OFFENCE.
Fact of the Case:
Petitioners were charged with dowry death under Section 304 B of the Indian Penal Code (IPC) for an incident that occurred in 1985. However, Section 304 B was introduced in 1986, after the alleged offense took place.
Finding of the Court:
The court held that Section 304 B of the IPC was not applicable to the case since the alleged offense occurred before the provision was introduced. The court also noted that Article 20(1) of the Constitution of India protects individuals from being convicted for offenses under provisions that were not in force at the time of the alleged offense.
Issues: Whether Section 304 B of the IPC could be applied to an offense committed prior to its introduction.
Ratio Decidendi: The court relied on the principle that an individual cannot be convicted for an offense under a provision that was not in force at the time of the alleged offense. The court also considered the fact that Section 304 B of the IPC created a new substantive offense and was not merely a procedural change.
Final Decision: The court allowed the petition and quashed the order framing charges under Section 304 B of the IPC. The court directed the trial court to consider and decide the prosecution case only for the offenses under Sections 498 A, 306, and 201 of the IPC.
N.Pandey, J.
1. This application under Sec. 482 of the Code of Criminal Procedure is for quashing an order dated 12.10.1993, passed by the 4th Additional Sessions Judge, Aurangbad, taking a decision to frame charges under Sec. 304 B of the Indian Penal Code against, the petitioners.
2. It appears on 28.8.1985 one Tapeshwar Singh (opposite party No. 2) lodged a case under Sections 302, 301 and 120 B of the Indian Penal Code (in short the Code). The Police after close of investigation submitted a final report under Secs. 498 A, 306 and 201 of the Code. The 3 learned Magistrate took cognizance of the offence and summoned them to face trial.
3. During course of trial prosecution examined all the witnesses and the case was fixed for judgment. But the trial courts instead of delivering judgment by the impugned order held that the offence, alleged, was with respect to a dowry death. Therefore, in his opinion, it was essential to frame a charge under Sec. 304 B of the Code.
4. Mr. Krishna Prasad Singh, learned Counsel appearing for the petitioners, contended that the impugned decision of the learned Judge, framing charge under Sec. 304 B of the Code, is illegal and without jurisdiction, because no offence, as deferred under that provision, was committed by the accused persons. He further contended that the alleged offence was committed on 28.8.1985. The provisions of Sec. 304 B of the Code was introduced first time on 19.11.1986. Therefore, the petitioners can not be convicted under the provisions of Sec. 304 B of the Code, because on the day of alleged offence, such provision was not available. In support of his contention, he placed reliance over, a decision of the Supreme Court in the case of Soni Derorojbhai Rabubhai V/s. State of Gujarat and others.
5. The main question arises for determination, whether Sec. 304 B of the Code is applicable to the fact of the present case, where alleged dowry death took place prior to insertion of such provision in the Code.
6. It appears when the Dowry Prohibition Act, 1961, in its original form was found inadequate, the Legislatures in order to eradicate prevailing malady; In our society of the dowry system, including dowry deaths, introduced Sec. 304 B of the Code after Sec. 304 A of the Indian Penal Code. For easy reference it is reproduced hereunder:
(1) Where the death of a woman is caused by any bums 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 1981).
(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."
From the facts, stated above, it is clear that the offence of dowry death punishable under Sec. 304 B of the Code with effect from 1986 Act No. 43 of 1986 came into force. The offence under Sec. 304 B is punishable with minimum sentence of 7 years, which may extend of life imprisonment. . As indicated above, by insertion of new provision in the Code, for more stringent offence than sec. 498 A, Section 304 B of the Code has been introduced. It is substantive provision, creating a new offence and not merely a provision affecting a change in procedure for trial of a preexisting substantive offence.
7. It would be appropriate to notice a passage from the judgment in the case of Soni Deorajbhai Bahuhhai V/s. State of Gujarat and others (supra), wherein, identical question emerged for consideration:
"It follows the view taken by the High Court that the respondents cannot be tried and p
