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HIGH COURT OF PATNA
S. Hoda and A. N. Chaturvedi, JJ.
Deo Narayan Lall Das and 5 Ors. - Petitioners
Vs.
The State of Bihar and Anr. - Opp. Party
Criminal Miscellaneous No. 5033 of 1986
Decided on: 17.4.1992
DOWRY PROHIBITION ACT - SECTION 4 - AMENDMENT - LIMITATION - COGNIZANCE - QUASHING OF CRIMINAL PROSECUTION - [BIHAR ACT 4 OF 1976] [ACT 63 OF 1984] [SECTION 7(2)] [SECTION 468(2)(B)] [SECTION 473] - The Bihar Amendment of 1976 (Bihar Act 4 of 1976) which made the provision for sanction of prosecution, stood repealed by Act 63 of 1984 enacted by Parliament and hence previous sanction of prosecution by the State Government was no longer required. The complaint case having been filed on 9.1.86 with regard to the occurrence alleged to have taken place on 6.5.1984 was barred by limitation under section 468 of the Code of Criminal Procedure. The cognizance which is said to have been taken as per order dated 8.5.1986 cannot be assailed on the ground of limitation. The offences under Dowry Prohibition Act are not continuing offences. The provision of section 7 (2) of the Dowry Prohibition Act which was introduced by Act 63 of 1984 and which came in force on 2.10.85, cannot have retrospective effect. The cognizance of the offences under the said Act is bad in law.
Fact of the Case:
Petitioners sought to quash their criminal prosecution for offences under sections 3, 4, and 5 of the Dowry Prohibition Act, alleging that the complaint did not disclose any offence, that the witnesses were not present at the time of the occurrence, that sanction for prosecution was mandatory under section 4 of the Bihar Amendment Act, that the Bihar Amendment was not repealed by the Central Act, and that the complaint was barred by limitation.
Finding of the Court:
The court found that the complaint did not disclose any offence under the Dowry Prohibition Act as it stood at the time of the alleged occurrence, as the demand for dowry was made after the marriage and not as consideration for the marriage. The court also found that the Bihar Amendment Act was repealed by the Central Act and that the requirement of prior sanction for prosecution was no longer required. However, the court held that the complaint was barred by limitation as it was filed more than one year after the alleged occurrence and the offences under the Dowry Prohibition Act were not continuing offences.
Issues: 1. Whether the complaint disclosed any offence under the Dowry Prohibition Act. 2. Whether the Bihar Amendment Act was repealed by the Central Act. 3. Whether the requirement of prior sanction for prosecution was mandatory. 4. Whether the complaint was barred by limitation.
Ratio Decidendi: 1. The definition of "dowry" under the Dowry Prohibition Act at the time of the alleged occurrence required that the property or valuable security be given or agreed to be given as consideration for the marriage. Since the demand for dowry in this case was made after the marriage, it did not fall within the definition of "dowry" and therefore did not constitute an offence under the Act. 2. The Bihar Amendment Act was repealed by the Central Act by virtue of Article 254 of the Constitution, which provides that a law made by Parliament shall prevail over a law made by a State Legislature in the event of a conflict between the two laws. 3. The requirement of prior sanction for prosecution under the Bihar Amendment Act was no longer required after the repeal of the Act by the Central Act. 4. The complaint was barred by limitation under section 468(2)(b) of the Code of Criminal Procedure, as it was filed more than one year after the alleged occurrence and the offences under the Dowry Prohibition Act were not continuing offences.
Final Decision: The court allowed the petition and quashed the criminal prosecution of the petitioners, including the order taking cognizance of the offences under the Dowry Prohibition Act.
A N. Chaturvedi, J. - This is an application under section 482 of the Code of Criminal Procedure by petitioners for quashing their criminal prosecution including the order dated 8.5.1986 (contained in annexure-4) in C.R. no. 6 of 1986, T.R. No. 1116 of 1986 whereby cognizance of offences under sections 3, 4 and 5 of the Dowry Prohibition Act has been taken by the Sub-divisional Judicial Magistrate, Jhanjharpur at Madbubani against the petitioners.
2. It has been alleged by the petitioners that in order to pressurise petitioner no. 4, Rajendra Kumar Lall Das and his family members, Opposite Party No.2, Sundar Lan Das, filed a petition of complaint (annexure-2) in the court of Sub-divisional Judicial Magistrate, Jhanjharpur at Madhubani on 9.1.1986 against the petitioners alleging commission of offences under sections 3, 4 and 5 of Dowry Prohibition Act by them on 6.5.1984 and the same was registered as C.R. No.6 of 1986. After enquiry, the Sub-divisional Judicial Magistrate vide his order dated 8.5.1986 is said to have taken cognizance of the offences under sections 3, 4 and 5 of the Dowry Prohibition Act against the petitioners without obtaining sanction of the State Government or the Collector and hence this application for quashing the criminal prosecution of the petitioners including the order dated 8.5.86 of the Sub-divisional Judicial Magistrate.
3. This application was heard by a Bench consisting Mr. Justice Nagendra Rai who as per order dated 8.4.1991 found that the question to be considered in this case is as to whether in view of the provision of Article 254 of the Constitution of India and the subsequent amendment of section 4 of the Dowry Prohibition Act by the Parliament by Act 63 of 1984, the provisions of section 4 amended by Bihar Act 4 of 1976 stood repealed or modified. In other words, the question to be considered, according to Rai Judge, is as to whether the provision of section 4 of the Bihar Amendment will apply or the amended provision of the Central Act will apply in the State of Bihar. Mr. Justice Nagendra Rai was of the opinion that the question to be decided is an important question of law and hence referred the matter to a Division Bench for deciding the said question and other points involved in the case. Accordingly, the matter came up before this Division Bench.
4. The petitioners want their criminal prosecution including the order dated 8.5.1986 (contained in annexure-4) in C.R. No.6 of 1986, T. R. No. 1116 of 1986 passed by Sub-divisional Judicial Magistrate, Jhanjharpur at Madhubani to be quashed on the ground that the complaint petition (annexure-2) and the statement on solemn affirmation (annexure-3) did not make out any offence under the Dowry Prohibition Act, 1961 as no property or valuable security has been given or agreed to be given either directly or indirectly as provided in section 2 of the Dowry Prohibition Act, 1961; that the witnesses examined under section 202 of the Code of Criminal Procedure were not present at the time of occurrence on 6.5.1984 and hence their testimony regarding occurrence is not reliable; that in view of the provision of section 4 of the Bihar Act 4 of 1976, previous sanction of the State Government for prosecution under section 4 of the Dowry Prohibition Act is mandatory and hence cognizance taken without sanction of prosecution is illegal, arbitrary and amounts to abuse of the process of the court; that the Bihar Amendment of 1976 (Bihar Act 4 of 1976) which made the provision for sanction of prosecution has not been repealed by Act 63 of 1984 enacted by Parliament and that the complaint case having been filed on 9.1.1986 with regard to the occurrence alleged to have taken place on 6.5.1984, the prosecution was barred by limitation under section 468 of the Code of Criminal Procedure.
5. The answer of opposite party State of Bihar to the above pleas of the petitioners was that the allegations in the complaint petition (annexure-2) and statement on solemn
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