Ajita David v. State by Inspector of Police, W-7 All Women Police Station, Anna Nagar, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 29.6.2009CoramTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.600 of 2008andM.P.No.1 of 2008Ajita David ..Petitionervs.1. State by Inspector of Police, W-7 All Women Police Station, Anna Nagar, Chennai. 2. Xavier Muthappa (R2 impleaded vide order dated 19.6.2008 in M.P.No.2 of 2008) ..RespondentsFor petitioner :Mr.B.Kumar, Senior Counsel for Mr.R.RajarathinamFor R1 : Mr.N.Kumanan, Govt. Advocate (Crl. Side)For intervenor :M/s.Gilbert G. PeniaCriminal Revision case filed under section 397 read with 401of the Code of Criminal Procedure to set aside the order dated31.3.2008 passed in Crl.M.P.No.131 of 2008 in C.C.No.8649 of 2007 bythe Chief Metropolitan Magistrate, Egmore, Chennai. ORDERThe revision is directed against the order passed by thelearned Chief Metropolitan Magistrate, Egmore, Chennai inCrl.M.P.No.131 of 2008 in C.C.No.8649 of 2007 dated 31.3.2008dismissing the petition filed under section 319 read with section 190of the Code of Criminal Procedure seeking to implead the father ofthe de facto complainant as accused in a case under Dowry ProhibitionAct. 2. The de facto complainant Judy Manoj filed a complaint asagainst her husband Manoj David, her sister-in-law Ajita David and https://hcservices.ecourts.gov.in/hcservices/ her brother-in-law Ujwal David alleging harassment demanding dowry.The investigating officer laid final report as against the aforesaidthree accused for the offences punishable under sections 498A and 406of the Indian Penal Code and sections 4 and 6 of the DowryProhibition Act. The father of the de facto complainant has statedduring the course of investigation that there was a demand of dowryof 100 sovereigns of gold ornaments by the accused even prior to themarriage. The father of the de facto complainant, having not accededto such a demand, provided 50 sovereigns of gold ornaments to herdaughter, the de facto complainant and 5 sovereigns of gold chain, 3sovereigns of bracelet and 1-1/2 sovereigns of diamond ring to thefirst accused as dowry. The said statement of the father of the defacto complainant is also found incorporated in the description ofthe offence detailed in the final report submitted by theinvestigating official. 3. At the first instance, the sister of the first accused/ thesister-in-law of the de facto complainant viz., Ajita David filed apetition under section 319 of the Code of Criminal Procedure on10.1.2008 praying to array the father of the de facto complainantXavier Muthappa as fourth accused and thereafter amended petition wasfiled under section 319 read with 190 of the Code of CriminalProcedure. 4. The learned Chief Metropolitan Magistrate, having come tothe conclusion that no petition under section 319 of the Code ofCriminal Procedure could be filed prior to the commencement of trialdismissed the petition seeking to array the father of the de factocomplainant. 5. The learned Senior Counsel appearing for the revisionpetitioner would vehemently contend that the Trial Court failed toappreciate the ambit of section 3 of the Dowry Prohibition Act, 1961which proposed to punish not only the receiver of dowry but also thegiver of dowry. Referring to section 7(1)(b)(ii) of the Act, thelearned Senior Counsel appearing for the revision petitioner wouldsubmit that though protection is provided from charging a person whois aggrieved by the offence under section 7(1)(b)(ii), the parents ofthe aggrieved wife do not fall under the category of person aggrievedby the offence. Therefore, the exemption contemplated under section7(3) of the Dowry Prohibition Act, 1961 does not apply to the fatherof the de facto complainant, who purportedly gave dowry. It is hisfurther submission that even before the case reaches the stage oftrial, the learned Chief Metropolitan Magistrate, while takingcognizance of the case as per section 190 of the Code of CriminalProcedure, is duty bound to array all the persons against whomoffences have been made out. Therefore, it is his submission thatwhen the giver of the dowry is also punishable under section 3 of theDowry Prohibition Act, he cannot claim any exemption under section 7(3) of the said Act. The learned Chief Metropolitan Magistrate is https://hcservices.ecourts.gov.in/hcservices/ bound to act under section 190 and take cognizance as against thefather of the de facto complainant also, it is contended. 6. There was no representation for the intervenor. LearnedGovernment Advocate (Criminal Side) appearing for the State wouldsubmit that the object of the amendment introduced by Act 43/1986 toexclude the person aggrieved from prosecution under Dowry ProhibitionAct will have to be considered by this court before approaching theambit of section 3 of the Dowry Prohibition Act. Referring tosection 7(3) of the Dowry Prohibition Act, 1961, he would furthersubmit that a clear exemption is contemplated from prosecuting aperson aggrieved by any offence under the Dowry Prohibition Act.Further, he would submit that the petition seeking to array thefather of the de facto complainant is totally misconceived,inappropriate and premature. 7. The statement of objects and reasons for the enactment ofthe Dowry Prohibition Act, 1961 would reflect that the Act is enactedto prohibit the evil practice of giving and taking dowry. But, whiledealing with the salient features of the Act 43/1986 which introducedthe amendment, it has been stated that the statement made by theperson aggrieved by the offence shall not subject him to prosecutionunder the Act. 8. In terms of the statement of objects and reasons of theDowry Prohibition Act, 1961, provision under section 3 of the DowryProhibition Act was enacted to punish not only the receiver but alsothe giver of the dowry. Section 7(1)(b)(ii) would read thatnotwithstanding anything contained in the Code of Criminal Procedure,no court shall take cognizance of the offence under this Act exceptupon a complaint by the person aggrieved by the offence or a parentor other relative of such person or by any recognised welfareinstitution or organisation. Section 7(3) of the Dowry ProhibitionAct would provide that notwithstanding anything contained in any lawfor the time being in force, a statement made by the person aggrievedby the offence shall not subject him to prosecution under the Act. 9. In order to provide more clarity to the provision undersection 7(1)(b)(ii), the legislature has thought it fit to clarifythat a parent or other relative of such a person also is entitled tolodge a complaint apart from the person aggrieved by the offence.Firstly, it is found that Dowry Prohibition Act, 1961 does not definethe person aggrieved by the offence. The aforesaid provision made toprovide more clarity cannot be interpreted that the word 'parent'does not fall within the category of an aggrieved person by theoffence provided under the Dowry Prohibition Act, 1961. The parent ofthe victim girl is definitely a person aggrieved by the offence. Byno stretch of imagination, the legislature would have thought ofexcluding the parent from the purview of the person aggrieved by theoffence while drafting section 7(3) of the Act to exempt from https://hcservices.ecourts.gov.in/hcservices/ prosecution the person aggrieved by the offence for the statementmade by him. At any rate, the phrase "person aggrieved by theoffence" employed in sub-section 3 of section 7 of the DowryProhibition Act, 1961 cannot be construed that it only refers to thevictim girl who was deprived of the marital bliss on account of theharassment meted out to her demanding dowry. In the consideredopinion of this court, parents and other relatives of the victim girlcan safely be classified as person aggrieved by the offence ascontemplated under section 7(3) of the Dowry Prohibition Act. 10. The Supreme Court in SWILL LIMITED v. STATE OF DELHI ANDANOTHER ((2001) 6 SCC (Cri) 670) has observed as follows:-"In our view, from the facts stated above, it isclear that at the stage of taking cognizance of theoffence, provisions of Section 190 of the Code ofCriminal Procedure would be applicable. Section190 inter alia provides that "the Magistrate maytake cognizance of any offence upon a police reportof such facts which constitute an offence". As perthis provision, the Magistrate takes cognizance ofan offence and not the offender. After takingcognizance of the offence, the Magistrate underSection 204 of the Code of Criminal Procedure isempowered to issue process to the accused. At thestage of issuing process, it is for the Magistrateto decide whether process should be issued againstparticular person/persons named in the charge-sheetand also not named therein. For that purpose, heis required to consider the FIR and the statementsrecorded by the police officer and other documentstendered along with charge-sheet. Further, uponreceipt of police report under Section 173(2) ofthe Code of Criminal Procedure, the Magistrate isentitled to take cognizance of an offence underSection 190(1)(b) even if the police report is tothe effect that no case is made out against theaccused by ignoring the conclusion arrived at bythe investigating officer and independentlyapplying his mind to the facts emerging from theinvestigation by taking into account the statementof the witnesses examined by the police. At thisstage, there is no question of application ofSection 319 of the Code of Criminal Procedure.Similar contention was negatived by this Court inRaghubans Dubey v. State of Bihar by holding thus:(AIR p.1169, para 9)"In our opinion, once cognizance has beentaken by the Magistrate, he takes cognizance https://hcservices.ecourts.gov.in/hcservices/ of an offence and not the offenders; once hetakes cognizance of an offence it is his dutyto find out who the offenders really are andonce he comes to the conclusion that apartfrom the persons sent up by the police someother persons are involved, it is his duty toproceed against those persons. The summoningof the additional accused is part of theproceeding initiated by his taking cognizanceof an offence."11. The power of the Judicial Magistrate is to proceed asagainst any person not originally cited as an accused in case offenceis made out as against him also. Taking cognizance as against allthe persons who are involved in the offence as provided under section190 of the Code of Criminal Procedure is a duty cast upon theMagistrate. The learned Judicial Magistrate need not wait till theevidence is recorded to invoke the provisions under section 190 ofthe Code of Criminal Procedure to arraign a person against whom alsoan offence is made out. 12. Section 190 of the Code of Criminal Procedure is subjectto section 7 of the Dowry Prohibition Act, 1961 on account of thenon-obstante clause found under the above Act. When the provisionunder section 7(3) of the Special Act prohibits taking cognizance asagainst a person aggrieved by the offence for the incriminatingstatement made by him, the Judicial Magistrate cannot invoke theprovision under section 190 of the Code of Criminal Procedure andinclude a person exempted under the Special Act as one of theaccused. On account of the introduction of the provision to theSpecial Act to exclude certain persons from prosecution, the powersof the Judicial Magistrate under section 190 of the Code of CriminalProcedure referred to in the above ratio cannot be exercised.13. The Delhi High Court in Smt.NEERA SINGH v. THE STATE(GOVERNMENT OF NCT OF DELHI) AND OTHERS in Crl.M.C.No.7262 of 2006dated 23.2.2007 observed as follows:-"A perusal of the complaint would show that as perallegations dowry demand was made even beforemarriage i.e., at the time of engagement and an ACwas demanded from her father by her in-laws andher father had assured that AC would be given atthe time of marriage. However, she told her father"You have given car and AC at the demand of inlaws, what will happen if they demand a flattomorrow" Despite her this conversation with herfather and despite her knowing that dowry demandhad already been made, she married in the samefamily irrespective of the fact that she was well- https://hcservices.ecourts.gov.in/hcservices/ educated lady and was an engineer and her brotherwas in police. In fact, these kinds ofallegations made after breakdown of the marriageshow the mentality of the complainant. I considerwhere these kinds of allegations are made, thepolice should simultaneously register a case underDowry Prohibition Act (in short "the Act") againstthe parents of the complainant as well, whomarried their daughter despite demand of dowry.Section 3 of the Act prohibits giving and takingof dowry. If a woman of grown up age and welleducated gets married to a person despite dowrydemand, she and her family becomes accomplice inthe crime under Dowry Prohibition Act."14. With due respect, I find that the exemption of the personsaggrieved from prosecution provided under section 7(3) of the DowryProhibition Act, 1961 was not brought to the notice of the Delhi HighCourt while passing such an observation. The penal provision undersection 3 of the Act alone was adverted to by the Delhi High Court.Therefore, I respectfully differ from the observation made by theDelhi High Court without special reference to section 7(3) of theDowry Prohibition Act. 15. This is an atrocious case where the accused, who allegedlycommitted an offence under sections 498A and 406 of the Indian PenalCode and sections 4 and 6 of the Dowry Prohibition Act comes outwith a petition invoking the provision under sections 319 and 190 ofthe Code of Criminal Procedure to harass the parent of the victiminspite of the fact that there is a clear exemption found under theDowry Prohibition Act. Further, the invocation of section 319 of theCode of Criminal Procedure is premature inasmuch as evidence was notyet recorded in this case. Therefore, no prosecution under the DowryProhibition Act can be launched in view of the exemption providedunder section 7(3) of the Act as against the parents and relatives ofthe victim girl. 16. In view of the above facts and circumstances, the revisionfails and it stands dismissed. The connected miscellaneous petitionalso stands dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSsk. https://hcservices.ecourts.gov.in/hcservices/ To The Chief Metropolitan Magistrate, Egmore, Chennai.+ 1 c.c. to M/s.Gilbert G. Penia, Advocate. S.R.No.27492.+ 3 c.cs. to Mr.R.Rajarathinam, Advocate. S.R.No.26712. Crl.R.C.No.600 of 2008LA(CO)GSK 10.07.2009