Full Judgment Text
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PETITIONER:
SONI DEVRAJBHAI BABUBHAI
Vs.
RESPONDENT:
STATE OF GUJARAT AND ORS.
DATE OF JUDGMENT28/08/1991
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SHARMA, L.M. (J)
CITATION:
1991 AIR 2173 1991 SCR (3) 812
1991 SCC (4) 298 JT 1991 (3) 542
1991 SCALE (2)410
ACT:
Indian Penal Code, 1860: Section 304-B (As inserted by Act
43 of 1986)--Scope and object of--Dowry death-Death occuring
prior to insertion of Section 304-B Section 304-B held
prospective and consequently inapplicable--It contains a
substantive provision creating a new offence and, does not
merely effect a procedural change for trial of pre-existing
substantive offence.
Indian Evidence Act, 1872: Section 113-B. Presumption as
to dowry death--Section 113-B contains rule of evidence to
prove the offence of dowry death.
Dowry Prohibition Act, 1961: Purpose of.
Constitution of India, 1950: Article 20(1) Protection
against conviction for a new offence created subsequent to
the commission of offence.
HEADNOTE:
Appellant’s daughter was married to respondent No. 2 on
15.12.1984. She died on 13.8.1986. The appellant filed a
criminal comp-. laint against the respondents viz. daugh-
ter’s husband and his relatives for an offence under section
498-A, triable by a Magistrate of First Class, ’read with
section 34 of the Indian Penal Code, 1860 alleging that his
daughter’s death was unnatural resulting from torture by her
husband and his relatives. By Act No. 43 of 1986, the Indian
Penal Code was amended and Section 304-B, offence of dowry
death, was inserted in the Code w.e.f. 19.11.1986. Since the
newly inserted offence of dowry death was triable. by a
Court of Session, the appellant flied an application before
the Magistrate for committing the case to the Caurt-of
Session for trial of offence under section 304-B. ’The
Magistrate dismissed his application by holding that the
amendment being prospective was inapplicable’to the case
because the death had occurred prior to the amendment.
Thereafter the appellant filed an application in the High
Court for a direction to Commit the case of dowry death to
the Court of Session. The High Court also dismissed his
application by holding that since the offence was committed
prior to the date of insertion of section
813
304-B, the section was not applicable to the case. In appeal
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to this Court on the question whether section 304-B of the
Indian Penal Code was applicable to a case of dowry death
where the death has occurred prior to the insertion of
Section 304-B, it was contended on behalf of the appellant
that section 304-B of the Indian Penal Code does not create
a new offence and contains merely a rule of evidence.
Dismissing the appeal, this Court,
HELD: 1. The offence of dowry death punishable under
section 304-B of the Indian Penal Code is a new offence
inserted in the code with effect from .19.11.1986 when Act
No. 43 of 1986 came into force The said offence is punisha-
ble with a minimum sentence of seven years which may extend
to life imprisonment and is triable by Court of Session. The
corresponding amendments made by Act No. 43 of 1986 in the
Code of Criminal Procedure and the Indian Evidence Act
relate to the trial and proof of the offence. Section 498-A
inserted in the Indian Penal Code by the Criminal Law
(Second Amendment) Act, 1983 is an offence triable by a
Magistrate of the First Class and is punishable with impris-
onment for a term which may extend to three years in addi-
tion to fine. The offence of dowry death punishable under
section 304-B provides for a more stringent offence than
section 498-A. Section 304-is a substantive provision creat-
ing a new offence and not merely a provision effecting a
change in procedure for trial of a pre-existing substanative
offence. The rule of evidence to prove the offence of dowry
death is contained in section 113-B of the Indian Evidence
Act providing for presumption as to dowry death which was a
simultaneous amendment made in the Indian Evidence Act for
proving ’the offence of dowery death. The fact that the
Indian Evidence Act was so amended simul taneously with the
insertion of section 304-B in the Indian Penal code by the
same Amendment Act is another pointer in this direction.
There fore, it cannot be held that section 304-B. does not
create a new offence and contains merely a rule of evidence.
[818D-F, 819C-D]
2. The respondents are being tried in the Court of Magis-
trate of .the First Class for the offence punishable under
section 498-A which was in the statute book on the date of
death of Appellant’s daughter Their trial and punishment for
the offence of dowry death provided in section 304-B of the
Indian Penal Code ’with the minimum sentence of seven years’
imprisonment for an act done by them prior to creation of
the new offence of dowry death would clearly deny to them
the protection afforded by clause (1) of Article 20 of the
Constitution. Accord ingly, the view taken by the High Court
that the respondents cannot be
814
tried and punished for the offence provided in section 304-B
of the Indian Penal Code which is a new offence created
subsequent to the commission of the offence attributed to
the respondents does not suffer from any infirmity. [818E,
G, 819E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
533of 1991.
From the Judgment and Order dated 10.1. 1989 of the
Gujarat High Court in Miscellaneous Criminal Application No.
32 of 1989.
H.S. Zaveri for the Appellant.
Dushayant Dave, Ashish Verma and Anip Sachthey. for the
Respondents.
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The Judgment of the Court was delivered by
VERMA, J. Petitioner’s daughter Chhaya Was married to
Respondent No. 2 Satish on5. 12. 1984 and they started
living together in their marital home at Bagasara. On 13.8.
1986, Chhaya died at Bagasara. The petitioner and his wife
got some vague information about their daughter Chhaya and
went to Bagasara, the same day but were unable to meet or
see their daughter who had died. The petitioner suspected
that their daughter’s death was unnatural resulting from
torture by her husband and his relatives. The petitioner
filed a criminal complaint against Respondent Nos. 2 to 5,
who are the husband, his parents and sister which was trans-
ferred to the Court of. Judicial Magistrate First Class at
Dhari and registered as Criminal Case No. 382 of 1988 for an
offence under section 498-A read with section 34 I.P.C. The
petitioner filed an application for committing the case to
the Court of Session for trial for .an offencepunishable
under section 304-B I.P.C. which was inserted in the Indian
Penal Code by Act No. 43 of 1986 w.e.f. 19.11.1986. On
29.11.1988, the Learned Magistrate dismissed the petition-
er’s application holding that this amendment being prospec-
tive was inapplicable to a death which occurred on
13.8.1986, prior to the amendment. Aggrieved by this order,
the petitioner moved an application (Misc. Criminal Applica-
tion No. 32 of 1989) in the High Court of Gujarat .for a
direction to commit this case of dowry death to ’the Court
of Session since an ’offence punish-able under section 304-B
is triable by the Court of Session.’ By the impugned order
dated January 10, 1989, the High Court has dismissed that
application. Hence this special leave petition.
815
Leave is granted.
The point arising for our decision is the applicability
of section 304-B of the Indian Penal Code to the present
case where the death alleged to be a dowry death occurred
prior to insertion of section 304-B in the Indian Penal
Code. This is the only ground on which the. appellant claims
trial of the case in the Court of Session. .
.
The reason.given by the High Court to support its view
is that the offence was committed prior to the date of
insertion of section 304-B in the Indian Penal Code on
account of which the section can have no application to the
present case. None of the courts below. has examined the
applicability .of any other pre-existing more stringent
provision even if section 304-B does not apply. As such
affirmation of the view that section 304-B does not apply,
will not preclude the appellant from contending that any
other more stringent provision is attracted on the accusa-
tion made. If that point is raised, the courts below will
have to decide the same on merits on the basis of accusation
made. It is in this background that the point raised by the
appellant regarding applicability of section 304-B is decid-
ed by us.. .
Section 304-B and the cognate provisions are meant for
eradication of the social evil of dowry which has been the
bane of Indian society ’and continues unabated in spite of
emanicipation of women and the women’s liberation movement.
This all prevading malady in our society has only a few
lucky exception in spite of equal treatment and opportunity
to boys and girls for education and career. Society contin-
ues to perpetuate the difference between them for the pur-
pose of marriage and it is this distinction which makes the
dowry system thrive. Even though for eradication of this
social evil, effective steps can be taken by the society
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itself and the social sanctions of the community can be more
deterrent, yet legal sanctions in the form of its .prohibi-
tion and punishment are some steps in that direction. The
Dowry Prohibition Act, 1961 was enacted for this purpsoe.
The Report of the Joint Committee of Parliament quoted the
observations of Jawaharlal Nehru to indicate the role of
legislation in dealing with the social evil as under:
" Legislation .cannot by itself normally solve
deep-rooted social problems, One has to ap-
proach them in other ways too, but legislation
is necessary and essential, so that it may
give that push and have that educative factor
as well as the legal sanctions behind it which
help public opinion to be given a certain
shape."
816
The enactment of Dowry Prohibition Act, 1961 in its
original form was found inadequate. Experience shows that
the demand of dowry and the mode of its recovery takes
different forms to achieve the same result and various
indirect and sophisticated methods are being used to ’avoid
leaving any evidence of the offence. Similarly, the conse-
quences of non-fulfilment of the demand of dowry meted out
to the unfortunate bride takes different forms to avoid any
apparent causal connection between the demand of dowry and
its prejudicial effect on the bride. This experience has led
to several other legislative measures in the continuing
battle to combat this evil.
The Criminal Law (Second Amendment) Act, 1983 (No. 45 of
1983) was an act further to amend the Indian Penal Code, the
Code of Criminal Procedure, 1973 and the Indian Evidence
Act, 1872. Section 498-A was inserted in the Indian Penal
Code and corresponding amendments were made in the Code of
Criminal Procedure which included section 198A .therein and
also inserted section 113A in the Indian Evidence Act,.
1872. Thereafter, the Dowry Prohibition (Amendment) Act,
1986 (No. 43 of 1986) was enacted further to amend the Dowry
Prohibition .Act, 1961 and to make certain .necessary
changes in the Indian Penal Code, the Code of Criminal
Procedure, 1973 and the Indian Evidence Act, 1872.
Two of the salient features of the Dowry Prohibition
(Amendment) Act, 1986 (No. 43 of 1986) stated in the State-
ment of Objects and Reasons of the Bill are as under:
"(e) Offences under the Act are
proposed to be made non-bailable.
"(g) A new offence of "dowry death"
is proposed to be included in the Indian Penal
Code and the necessary consequential amend-
ments in the Code of Criminal Procedure, 1973
and in the Indian Evidence Act, 1872 have also
been proposed."
Accordingly by section 7 of the Amendment Act, section 8 of
the Dowry’ Prohibition’ Act, 1961 was amended to make every
Offence under this Act non-bailable while continuing it to
be non-compoundable. By sections 10, 11 and 12, amendments
were made in the Indian Penal Code, Code of Criminal Proce-
dure, 1973 and the Indian’ Evidence Act, 1872, as part of
the same scheme as follows:
817
"10. In the Indian Penal Code, after,
section 304-A, the following section shall be
inserted, namely:
’304-B. Dowry death. (1) Where the
death of a woman is caused by any burns or
bodily injury or occurs otherwise then under
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normal circumstances within seven years of her
marriage and it is shown that .soon before her
death she was subjected to cruelty or harass-
ment 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 purposes of this
sub-section, ,’dowry". shall have the same
meaning as in section 2 of the Dowry Prohibi-
tion Act, 196 1 (28 of 1961).
(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
"11. In the Code of Criminal Proce-
dure, 1973, in the First Schedule after the
entries relating to section 304-A, the follow-
ing entries shall be inserted, namely:
Section Offence Punishment COgnizable Bailable or By what
or non- non-bail- Court
cognizable able tribale
1 2 3 4 5 6
"304-B ’ Dowry Imprison- Ditto Non- Court of
death ment of not bailable ’ Session."
lesS’ than
seven years but which may extend to imprisonment for life.
’
"12. In the Indian Evidence Act, 1872, after
section
818
113-A, the following section shall be insert-
ed, namely:-
"11.3-B. Presumption as to dowry
death.-When the question is whether a person
has committed the dowry death of a woman and
it is shown that soon before her ’death. such
woman has been subjected by such .person to
cruelty Or harassment for, or in connecting
with, any demand for dowry, the Court shall
presume that such person had caused the dowry
death.
Explanation.-For the purpose of this
section’, "dowry death" shall have the same
meaning as in section 304-B of the Indian
Penal Code (45 of 1860)."
It is clear from the above historical background that
the offence of dowry death punishable under section 304-B of
the Indian Penal Code is a new offence inserted in the
Indian Penal Code with effect from 19.11.1986 when Act No.
43 of 1986 came into force. The offence under section 304-B
is punishable with a minimum sentence of seven years which
may extend to life imprisonment and is triable by Court of
Session. The corresponding amendments made in the Code of
Criminal Procedure and the Indian Evidence Act relate to the
trial and proof of the offence. Section 498;A inserted in
the Indian Penal Code by the Criminal Law (Second
Amendment)Act, 1983 (Act No. 46 of 1983) is an offence
triable by a Magistrate of the First Class and is punishable
with imprisonment for a term which may extend to three years
in addition to fine. It is for the offence punishable under
section 498-A which was in the statute book on the date of
death of Chhaya that the respondents are being tried in the
Court of Magistrate of the First Class. The offence punisha-
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ble under section 304-B, known as. dowry death, was a new
offence created with effect .from 19.11.1986 by insertion of
the provision in the Indian Penal Code providing for a more
stringent offence’ than section 498-A. Section 304-B is a
substantive provision creating a new offence and not merely
a provision effecting a, change in procedure for trial of a
pre-existing substantive offence. Acceptance of the appel-
lant’s contention would amount to holding that the respond-
ents can be tried and punished for the offence of dowry
death provided in section 304-B of the Indian Penal Code
with the minimum sentence of seven years’ imprisonment for
an act done by them prior to creation of the new offence of
dowry death. In our opinion, this would clearly deny to them
the protection afforded by clause (1) of Article 20 of the
Constitution which reads as under:
819
"20.. Protection in respect of con-
viction for offences. --(1) No person shall be
convicted of any offence except for violation
of the law in force at the time of the commis-
sion of the act charged as an offence, ’nor be
subjected to a penalty greater than that which
might have been inflicted under the law in
force at the time of the commission of the
offence. ’ ’
" In our opinion ,. the protection given by Article
20(1) is a complete answer to the appellant’s contention.
The contention ’of learned counsel ’for the appellant that
section 304-B inserted in the Indian Penal Code does not
create a new offence and’ contains merely a rule of evidence
is untenable. The rule of evidence to prove the offence of
dowry death is contained in section 113-B of the Indian
Evidence Act providing for presumption as to dowry death
which was a simultaneous’ amendment made in the Indian
Evidence Act for proving the offence of dowry death. The
fact that the Indian Evidence Act was so amended simultane-
ously with the insertion of section 304-B in the Indian
Penal’ Code by the same Amendment Act is’ another pointer in
this direction. This contention is, therefore, rejected.
In follows that the view taken by the High Court that
the respondents cannot be tried and punished for the offence
provided in section 304-B of the Indian Penal Code which is
a new offence created subsequent ’to the commission of the
offence attributed to the respondents does not suffer from
any infirmity. However, as earlier indicated, in case the
accusation against the respondents discloses commission of
any other more stringent pre-existing offence by the re-
spondents than section 498-A of the Indian Penal Code, the
appellant would be entitled to raise that question and the
Court will then consider and decide it on that basis. No
such argument having been advanced before us or any of the
courts below so far, the same does not arise for considera-
tion in the present proceeding. With these observations, the
appeal is dismissed.
T.N.A. Appeal dis-
missed.
820