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High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. A.P. SHAH & THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN
S.V.Ramamurthy - Appellant
Versus
The Secretary to Government of Tamil Nadu, Home Department, Fort.St.George, Chennai – 600 009.& Others - Respondents
W.P.No. 31420 of 2005 and W.P.M.P.Nos. 34443 & 39524 of 2005 And W.V.M.P.Nos. 2204 of 2005 & 698 of 2006
Decided On : 28 April 2006
CRIMINAL PROCEDURE CODE, 1974, SECTION 498-A, DOWRY PROHIBITION ACT, 1961 SECTION 8-B & RULES: - Power of Police to investigate and register dowry cases - Contention of petitioner in W..P. that when a Special Act makes a special offence and a special procedure, offence under it must be dealt with under that Act itself -- Contention rejected - HELD: in this case complainant.... filed u/s. 498-A IPC which is not offence under special enactment, can be investigated by Police and not by Dowry Prohibition Officer - Rules framed by Stage Govt. do not exclude power of police officer to enquire into complaints of offence of dowry - Rule 5 (xxii) specifically provides that all assistance, the Dowry Prohibition Officer is to assist the Police Officer in carrying out investigation of case.
The daughter-in-law of petitioner lodged a complaint with R3 (Commissioner of Police alleging that Petitioner and family members demanded Dowry of Rs.25 Lakhs - The said complaint was filed U/s.4 of dowry Prohibition Act and Sections 498-A & 506 of IPC - The parents of the petitioner were compelled to agree to the demanded based on which the girl was taken to USA by the husband. But on failure of the payment of dowry the husband drove her away from his family fold and the complaint was lodged in India, with R3 on petitioners side.
In this petition the petitioner has claimed that the police have no authority under the provisions of the Act to receive any complaint regarding dowry. The police also have no right or power to investigate any offence about the demand of dowry supposed to have been made by the petitioner. According to the petitioner, an enquiry into the complaint under the Act has to be undertaken by the Dowry Prohibition Officer, who is appointed by the Government along with the Advisory Committee and the police have no power to take action on the complaint (Para 4).
HELD : "The evil of dowry system has been a matter of serious concern to everyone in view of its very increasing and disturbing proportions. In 1961 Parliament enacted the Dowry Prohibition Act, 1961. The objects and reasons were set out as follows :
"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 gives goes 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 forms of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2000/- Such a provision appears to be necessary to make the law workable." (Para 7)
It is obvious that the offence under section 498-A cannot be investigated by a Dowry Prohibition officer whose jurisdiction id restricted to offences under the IPC, which are also connected to demand for dowry. In lice, who have got the power to investigate into the complaint under Section 198-A of the code of Criminal Procedure and the Court can take cognizance upon such of respect of fence on facts, which constitute such of respect of offences under Sections 3 and 4 of the Act, the same cannot outs the power of the police to investigate into the offence under Section 498-A of the Indian penal code as well as under Section 3 and 4 of the Act. (Para 16).
In this case, the complaint is filed under Section 498-A of the Indian Penal Code, which is not an offence under the special enactment and which can be investigated only by the police and not by a Dowry Prohibition Officer. Under Section 198-A of the Code of Criminal Procedure no Court shall take cognizance of the offence under Section 498 of the Penal Code, except upon police report or of course upon a complaint by the person aggrieved or her relatives specifically mentioned in the section. The Rules framed by the State Government do not exclude the power of the police officer to enquire into the complaints of demand of dowry and in fact Rule 5 (xxii) specifically provides that at all stages the Dowry Prohibition Officer is liable to assist the police officer in carrying out the investigation of the case. (Para 16)
(Writ Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus for the reasons stated therein.)
The Honourable Chief Justice:
The petitioner has filed this P.I.L seeking a mandamus directing respondents 1 and 2 to engage the services of “Dowry Prohibition Officer” in terms of Section 8-B of the Dowry Prohibition Act, 1961 (hereinafter called as ‘the Act’ for brevity) read with Rule 5 of the Tamil Nadu Dowry Prohibition Rules, 2004 (hereinafter called as ‘the Rules’ for brevity) to receive complaints and investigate and to file charge sheets under the Act without interference of the police officers excepting in cases where Dowry Prohibition Officer seeks the assistance of police under Clause (xxi) and (xxii) of Rule 5 of the Rules.
2. The petitioner is a practicing Advocate and a resident of Chennai. He has two sons. His second son was married to one Mahalakshmi on 23rd January 2004. The daughter-in-law of the petitioner has lodged a complaint with the third respondent, the Commissioner of Police, Chennai alleging that the petitioner and his family members had demanded dowry of Rs.25 lakhs from her. On the basis of this complaint, a non-bailable warrant was issued by the concerned Magistrate and the petitioner had obtained an anticipatory bail from the Principal Sessions Judge, Chennai.
3. The complaint filed by the daughter-in-law is under Section 4 of the Dowry Prohibition Act and under Sections 498-A and 506 of the Indian Penal Code. The complainant has alleged that just one day before the marriage, her father-in-law i.e., the present petitioner, demanded from her father a sum of Rs.25 lakhs as dowry and threatened that if the bride’s family does not agree for this, the marriage will not be solemnized. Since the marriage was to be solemnized next day, the parents of the complainant had no other option, considering their daughter’s welfare, but to agree to pay Rs.25 lakhs. On the assurance given by her parents the marriage was solemnized on 23rd January 2004. After the marriage, the complainant went to U.S.A and stayed with her husband. As the complainant’s parents were unable to meet the demand of Rs.25 lakhs, her husband started harassing her. She was treated like a slave. Her husband even disconnected the telephone connection with a view to deprive her from contacting her parents. Meanwhile, she became pregnant and therefore, her mother and brother went to America in January 2005. The complainant’s husband quarreled with them and assaulted the complainant and drove her out of the house. The complainant lodged a complaint with the American police and also requested the police to protect her from husband’s further harassment. The husband was arrested by the American police and he was directed not to have any contact with his wife, or her relations. In the meantime, she gave birth to a female child on 19.2.2005. The complainant’s relations met the husband and his parents and tried to pacify the husband and requested him to live together, but he refused. The petitioner insisted that since the demanded amount has not been paid, his son will not live with her or her child. Finally the complainant procured a new passport for her baby and came back to India, and lodged a complaint with the third respondent and an FIR came to be registered under Section 4 of the Dowry Prohibition Act and under Sections 498-A and 506 of the Indian Penal Code.
4. In this petition the petitioner has claimed that the police have no authority under the provisions of the Act to receive any complaint regarding dowry. The Police also have no right or power to investigate any offence about the demand of dowry supposed to have been made by the petitioner. According to the petitioner, an enquiry into the complaint under the Act has to be undertaken by the Dowry Prohibition Officer, who is appointed by the Government along with the Advisory Committee and the police have no power to take any action on th
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