| SooperKanoon Citation | sooperkanoon.com/890853 |
| Subject | Family;Criminal |
| Court | Himachal Pradesh High Court |
| Decided On | Mar-30-2009 |
| Judge | Surinder Singh, J. |
| Reported in | 2009(1)ShimLC373 |
| Appellant | Ashok Kumar Bais and ors. |
| Respondent | State of H.P. |
| Cases Referred | In Superintendent and Remembrancer of Legal Affairs v. Anil Kumar Bhunga and Ors. |
Surinder Singh, J.
1.The accused-petitioners stand charge-sheeted by the learned Sessions Judge, for the offences punishable under Sections 3 and 4 of The Dowry Prohibition Act, 1961 in short 'the Dowry Act' and also under Section 306 of the Indian Penal Code, vide order dated 16.6.2008, which has been assailed in the present criminal revision petition, on the following grounds:
(i) That the case was investigated by the police officer below the rank of Dy. S.P. and no sanction was taken from the District Magistrate before initiating the proceeding for the alleged offence under The Dowry Act, as required under the law. Thus the learned trial Court could hot have taken the cognizance under the said Act, AND
(ii) Prima-facie the ingredients of the offence under Section 306 of the Indian Penal Code are not made out from the prosecution story, the charge was framed in a slip-shod manner and without application of mind, therefore, deserves to be set-aside.
2. I have heard the learned Counsel for the parties and have gone through the record of the case to examine the legality and propriety of the impugned order.
3. Precisely the facts giving rise to the present petition can be stated thus. Col. Naresh Kumar Singh complainant is the father of Swati Singh a promising daughter (to be referred as deceased) who completed her MBA from N.I.M.C. Calcutta. Realizing that she has became of marriageable age, her parents started searching for a good match and were attracted by a matrimonial published in 'Sunday Times' on 1st January, 2006, whereby petitioner No. 2 Capt. Anirudh Singh (29) was looking for the beautiful bride. Both the families had a Military service background. Feeling thrilled, the complainant contacted telephonically the father of the proposed bride-groom, named Col. Ashok Kumar Bais (petitioner No. 1) and supplied the bio-data of his daughter along with her photographs as desired. The petitioner No. 1 herein informed the complainant that he being in the Army, did not believe in matching the horoscope. Shortly thereafter, both the families started coming closure by contacting each-other telephonically and finally a meeting was arranged at Bhatinda, where the complainant was posted. Capt. Anirudh met Swati and liked her at a first glance and so was the case with her. The other family members of the Capt. Anirudh also liked the girl. Thus Shagun and other gifts were exchanged and the petitioners left for their place with the assurance to fix a date for the 'ring ceremony'. In the meantime, Capt. Anirudh was deputed to a military course and the date for 'ring ceremony' could not be fixed. Thereafter, Anirudh got his posting at Ganga Nagar (Rajasthan), where Swati and her parents went to meet him. Both i.e. the girl and boy exchanged their telephone numbers again and a formal Shagun was given to Capt. Anirudh.
4. Ultimately, the 'ring ceremony' was fixed at Jammu with the consent of both the families, which was performed by an Army-Pandit, followed by a lunch in the hotel. The father of deceased gave gold ornaments and cash to the parents of Capt. Anirudh Singh and other family members along with some gifts worth Rs. 1,00,000/- on this ceremony and finally the marriage was fixed on 10.12.2006.
5. Suddenly, on 28.5.2006, Col. Bais, the father of Capt. Anirudh Singh informed the complainant that the horoscope of the girl did not match as she was Manglik. The complainant got shock of his life and informed that both i.e. the girl and boy were Manglik and they have consulted a renowned Astrologer, who told them there was no difficulty in their marriage. The complainant along with his wife, the cousin Mohinder Singh and his wife went to Jammu to meet Col. Bais. Then all of them went to an Astrologer, who after studying the horoscopes of the boy and girl told that there was absolutely no difficulty in their marriage.
6. Thereafter Col. Bais told the complainant that he would respond after consulting his other family-members. On 26.5.2006, there was a Ladies sangeet arranged in the village of complainant where entire community participated. It is alleged that the accused petitioners were expecting good deal of dowry from the complainant the time of 'ring ceremony'. On the same day i.e. on 28th December, 2006, Capt. Anirudh Singh is also alleged to have rung up to Swati Singh and told her to remove the engagement ring as he was not going to marry her because her parents have not given him a luxurious car and cash of Rs. 5 lacs at the time of ring ceremony, which was expected from them. She informed him that her parents were not in a position to meet this unreasonable demand. On this, Capt. Anirudh Singh told her to forget about the marriage with him.
7. Swati Singh became nervous, upset and remained depressed and consumed poison on 1st May, 2006 but she did not disclose this fact to her mother, her father had gone to his place of posting. She simply informed that Capt. Anirudh Singh informed her that the marriage had broken due to insufficient dowry at the time of 'ring ceremony'.
8. Finding that their daughter had become sick, she took her to a Doctor at Nagrota Bagwan. Even there, she did not disclose about consuming even the poison to the Doctor. On 1.6.2006, her condition deteriorated and after long persuasion, she told her mother that she had consumed the poison.
9. The mother of the deceased took her daughter Swati Singh to the place of the posting of the complainant where she was admitted in the Military hospital, but despite giving the best treatment, her condition did not improve. Thus, she was referred to the Military Command Hospital Chandi Mandir, but even they failed to save her as it was too late and ultimately, she died there on 3.6.2006 and the cause of death of Swati Singh was opined the consumption of Zink Phosphide, a poisoning substance.
10. It is alleged that on 15.6.2006, the complainant found a suicidal note in the purse of deceased daughter Swati, which reads as under:
Dear Mummy and Pappa,
I really very sorry for doing this. I could bear the shock of my engagement being broken due to dowry reasons. I know Anirudh is keen marrying but will only do what his mother tells him. I cannot face such an embracement. It was a pure arranged marriage and everything according to elders wish then also these stories about kundlies started building up. I am sorry for this but this one time pain will save you from so much of embracement. My last will is do not leave the Bains family.
Regards.
Signed
Swati Singh
29.5.2006.
11. On the above allegations, the police investigated the case. The suicidal note was sent for the comparison and opinion of the handwriting expert along with the personal planning diary, which was maintained by the deceased. After the examination of both the documents, the Handwriting Expert of the Questions Documents opined that both the writings were in the same hands by the same person.
12. During the investigation of this case, the statements of the parents of the deceased along with other material witnesses were recorded and the case was presented in the Court for the trial of the accused-petitioners under the aforesaid Sections and finding a prima-facie case, the accused petitioners were charge-sheeted for the offences aforesaid which has been assailed in this revision petition.
13. Insofar as the first contention of the learned Counsel for the petitioners is concerned, they were charge-sheeted for the offences punishable under Sections 3 and 4 of the 'Dowry Act' and referred to Section 8A of the said Act, which reads as under:
8-A. Cognizance of Offence--
No Court shall take cognizance of any offence under this Act except on a police report under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint made by a person aggrieved by the offence, as the case may be, within one year from the date of the commission of the offence:
Provided that no police officer of the rank lower than that of the Deputy Superintendent of Police shall investigate any case registered under this Act:
Provided further that no Court shall take cognizance of any offence under this Act except with the previous sanction of the District Magistrate, having jurisdiction in the area.
Emphasis supplied
14. The above amendment was made by H.P. Act No. 39 of 1978 by Section 6 which came into force w.e.f. 4.12.1978. Thus the learned Counsel for the petitioner submitted that neither the Dy. S.P. had investigated the case nor previous sanction of the District Magistrate having jurisdiction in the area was sought, therefore, the Court could not have taken the cognizance. I find force in the arguments advanced by the learned Counsel.
15. Both the provisos to the amended Sections are mandatory and the position which emerges is that:
(i) the case could not have been investigated by a police officer of the rank lower than of the Deputy Superintendent of Police; and
(ii) the cognizance of any offence by the Court under the Dowry Act is barred, in absence of the previous sanction of the District Magistrate, having its jurisdiction in the area, which is sine quo non for the institution of the complaint under this Act.
16. Consequently, any challan presented, where the investigation officer is below the rank of Dy. S.P. and any challan or complaint moved without the prior sanction to the District Magistrate has to be rejected.
17. In view of this, in my opinion, the cognizance of the offences taken by the trial Court, for the offences under the Dowry Act is wrong and illegal and deserves to be set-aside.
18. In as much as the offence under Section 306 of the Indian Penal Code is concerned, precisely the prosecution mainly, relies upon the statements of the parents of the deceased, suicidal note and the report of the Handwriting Expert coupled with the statements of Col. Mohinder Singh, Naib, Subedar Yogesh Kumar etc. and other documents appended thereto.
19. There is no dispute that the deceased had committed the suicide by consuming the poison. Prima-facie the question is that whether the suicide is a direct result connected with the harassment of demand of dowry.
20. On going through the statements of the witnesses, prima-facie, the mens rea is writ large attributable to the accused-petitioners. Why the horoscope was tallied when petitioner No. 1 represented to the complainant initially that being a member of the Armed Forces he did not believe in horoscope? And what compelled them to match the horoscope at a later date? Further when both the parties went to the Pandit at Jammu with horoscope of boy and girl and he said there was nothing wrong in their marriage then what compelled the petitioner to break the marriage? These questions remained unanswered coupled with the fact of contacting the deceased by Capt. Anirudh Singh telephonically informing her regarding the demand of dowry on 28.5.2006 which was proximate to the time of her suicide and it caused depression to her. If the horoscope of the boy and girl did not match, then why engagement ceremony was fixed, are some of the triable issues, which are sufficient to presume the commission of offence punishable under Section 306 of the Indian Penal Code.
21. In Superintendent and Remembrancer of Legal Affairs v. Anil Kumar Bhunga and Ors. : 1979CriLJ1390 , the Supreme Court held that at the stage of framing charges, the prosecution evidence does not commence, the Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating Police Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Sections 227 or 228 of the Code of Criminal procedure. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the common of that offence.
22. It is a settled law that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence. Please see State of Maharashtra etc. etc. v. Som Nath Thapa etc. etc. : 1996CriLJ2448 , wherein : 1977CriLJ1125 and Antulay's case : 1986CriLJ1922 , Stree Atyachar Virodhi Parishad's case : [1989]1SCR560 have been discussed and relied upon.
23. Applying the above principle of law in the instant case, prima facie there are reasonable grounds to frame the charge against the accused petitioners for the offence under Section 306 of the Indian Penal Code.
Answer to Contention No. 1:
24. In result, for the reasons aforesaid, in my considered opinion, the trial Court could not have taken the cognizance for the offences punishable under Section 3 and 4 of the Dowry Prohibition Act, 1961 as such the charge against them for the aforesaid offence is quashed and set-aside. The accused-petitioners stand discharged for the said offences.
Answer to Contention No. 2:
25. Insofar as the charge under Section 306 of the Indian Penal Code is concerned, prima-facie there are sufficient grounds to frame the charge under the said Section against the accused-petitioners, thus the framing of charge under Section 306 of the Indian Penal Code order is upheld. Accordingly, this Criminal Revision Petition is partly allowed to the above extent.
26. Records of the trial Court be returned forthwith.
The petitioners are hereby directed to be present before the learned trial Court on April 17th, 2009.