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High Court Of Orissa
K. P. MOHAPATRA
BAIKUNTHANATH JENA - Appellant
Versus
STATE OF ORISSA - Respondent
CRI. M. C. 686 Of 1989
Decided On : 02/23/1989
DOWRY PROHIBITION ACT - SECTION 7 - COGNIZANCE OF OFFENCES - LIMITATION - SECTION 473 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - APPLICABILITY - COURT'S POWER TO CONDONE LIMITATION - INTERESTS OF JUSTICE.
Fact of the Case:
The petitioner and pro forma opposite party No. 2 were accused in a case under Sections 3 and 4 of the Dowry Prohibition Act (for short the 'act') and have challenged the order of cognizance dated 6-2-1985 passed by the learned Sub-Divisional Judicial Magistrate, Bhubaneswar.
Finding of the Court:
The court held that Section 7 of the Act, as amended by Amendment Act 63 of 1984, which came into operation on 2-10-1985, was not retrospective, but prospective in its effect. So, in view of the provisions contained in repealed Section 7 (b) of the Act, cognizance of the offences thereunder was barred after expiry of one year. However, the court also held that even to a case under Section 7 of the Act before its amendment, provisions of Section 473 of the new Code are applicable and in a suitable case on being satisfied, the court may condone limitation for the purpose of taking cognizance.
Issues: 1. Whether Section 7 of the Dowry Prohibition Act, as amended by Amendment Act 63 of 1984, was retrospective or prospective in its effect? 2. Whether the provisions of Section 473 of the Code of Criminal Procedure, 1973 are applicable to a case under Section 7 of the Dowry Prohibition Act before its amendment?
Ratio Decidendi: 1. The court held that there was no indication in Section 6 of the amendment Act No. 63 of 1984 or anywhere in the Amendment Act to show that the new Section 7 was retrospective in operation. Therefore, cognizance of offence under the Act which took place in 1982 could not be taken on 6-2-1985 according to Section 7 (b) as it stood prior to the amendment. 2. The court held that even if there was a bar to take cognizance of any offence under the Act except on a complaint made within one year from the date of the offence, Section 473 of the new Code shall be applicable and even after lapse of one year from the date of the offence the court can take cognizance of an offence under the Act either on the motion by the aggrieved party or on its own motion.
Final Decision: The court allowed the petition and set aside the impugned order of cognizance dated 6-2-1985. The case was remitted for expeditious disposal in accordance with law in the light of observations made by the court.
K. P. MOHAPATRA, J.
( 1 ) THE petitioner and pro forma opposite party No. 2 are accused in a case under Sections 3 and 4 of the Dowry Prohibition Act (for short the 'act') and have challenged the order of cognizance dated 6-2-1985 passed by the learned Sub-Divisional Judicial Magistrate, Bhubaneswar.
( 2 ) PROSECUTION case, which is a very unfortunate one, is narrated below. The marriage negotiation between Sanjukta, an educated young girl, with the petitioner who was serving as Judicial Magistrate at Bhubaneswar, was started by some negotiators in January, 1982. During negotiation, on behalf of the petitioner and pro forma opposite party No. 2 demand of dowry of cash of Rupees 35,000/- and costly articles, such as, television, H. M. T. watch, refrigerator, 15 Tolas of gold ornaments and a piece of land at Bhubaneswar, was made. The parents of Sanjukta willy-nilly agreed for giving the dowry and as a matter of fact, on 10-2-1982 at the time of Nirbandha ceremony, a sum of Rs. 15,000/- was paid by her parents to the petitioner and pro forma opposite party No. 2. Again on 26-4-1982 a sum of Rupees 5000/- and on 28-4-1982 a sum of Rupees 11,500/- in cash and Rs. 3,500/- in cheque was paid to them. The marriage was performed on 1-5-1982 during which costly presents as per the demand were given. After the marriage, Sanjukta lived in the village of the petitioner and far from leading a happy married life was constantly tortured, because the present of gold ornaments given to Sanjukta was less than 15 Tolas. In the meantime, the petitioner was transferred as Judicial Magistrate to Sambalpur and was living in a rented house. Sanjukta went to live with him and on 30-9-1982 she was found dead hanging from the ceiling of a room of the house. The records of the case do not disclose as to the proceeding that followed and whether any case was initiated to find out whether death was suicidal or was a result of homicide. It is further not known, on whom the responsibility for death of Sanjukta was fixed, but in U. I. Case No. 652 of 1983 the Chief Judicial Magistrate, Sambalpur, passed an order on 18-8-1983 saying that the prosecution report should be sent to the Prosecutor by registered post with A. D. for presentation in the proper court. On 6-2-1985 the prosecution report which was returned to the Prosecutor was presented before the learned Sub-Divisional Judicial Magistrate, Bhubaneswar, and it is not known where it was lying for about two and half years in between. Even thereafter the case did not made any headway till 27-4-1987 when the elder sister of Sanjukta was examined in part as P. W. 1. On 7-7-1987, however, a petition was filed challenging the order of cognizance on the ground that Section 468 of the Code of Criminal Procedure (for short 'code') was a bar and cognizance was taken long after expiry of the limitation prescribed under it. The petition was heard and by order dated 30-7-1988 the learned Additional Chief Judicial Magistrate, Bhubaneswar, to whose court the case was transferred, rejected the petition on the ground that he had no power of review of the earlier order, and so could not quash the order of cognizance taken earlier.
( 3 ) SECTION 7 of the Act, as it originally stood prior to amendment, is quoted below :-"7. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), - (a) no court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence under this Act; (b) no court shall take cognizance of any such offence except on a complaint made within one year from the date of the offence; (c) it shall be lawful for a Presidency Magistrate or a Magistrate of the first class to pass any sentence authorized by this Act on any person convicted of an offence under this Act. "the Dowry Prohibition (Amendment) Act, 1984 (Amendment Act No. 63 of 1984) substituted and replaced Section 7 which is also quoted below :-"7. (1) Notwith
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