Skip to content


Nurun Nisha Begum Vs. Hasina Khatun and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 80 of 1980
Judge
Reported in58(1984)CLT184; 1984(II)OLR709
ActsDowry Prohibition Act, 1961 - Sections 4; Code of Criminal Procedure (CrPC) , 1973 - Sections 311 and 540; Evidence Act, 1872 - Sections 165
AppellantNurun Nisha Begum
RespondentHasina Khatun and ors.
Appellant AdvocateS.K. Mund and U.C. Mohanty
Respondent AdvocateSk. Rahenoma and J. Khan
DispositionAppeal dismissed
Cases ReferredJamatraj Kewalji Govani v. State of Maharshtra
Excerpt:
.....to file a complaint, in the proper court at law under the dowry prohibition act, 1961, and the dowry prohibition ( orissa amendment ) act, 1975. if she is eligible for legal aid under rule 3(l) of orissa legal aid to the poor rules, 1975, she may submit application for the same for consideration sd. in the instant case, the prosecution remained satisfied with ext. having failed to take, steps at any earlier point of time for due proof of sanction, a very belated, application, was, made by the appellant as late as on august 18, 1979, when the case had been fixed for judgment two days thereafter and the learned magistrate rejected, the application by an endorsement made by her on the body of the application. the prosecution of the respondents for the offence punishable under section 4..........act, 1961 (for short, the 'act') and under section 6a(1) of the said act as amended by the dowry prohibition (orissa amendment ) act, 1975, in the court of the learned subdivisional judicial magistrate, sambalpur. the case of the appellant was that the respondent no. 3 married the appellant on may 8, 1975. there had been demands for dowry by the respondents prior to the marriage and even thereafter for which the appellant had been ill-treated. it was also alleged that the respondent no. 3 had denied conjugal rights to the appellant for the same reason. besides, examining herself as p. w. 9, the appellant had examined eight witnesses to substantiate her case. the respondents' plea was one of denial and false implication. one witness had been examined for the defence to show that.....
Judgment:

B.K. Behera, J.

1. The appellant was the complainant and the respondents were the accused persons facing trial for commission of offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, the 'Act') and under Section 6A(1) of the said Act as amended by the Dowry Prohibition (Orissa Amendment ) Act, 1975, in the Court of the learned Subdivisional Judicial Magistrate, Sambalpur. The case of the appellant was that the respondent No. 3 married the appellant on May 8, 1975. There had been demands for dowry by the respondents prior to the marriage and even thereafter for which the appellant had been ill-treated. It was also alleged that the respondent No. 3 had denied conjugal rights to the appellant for the same reason. Besides, examining herself as P. W. 9, the appellant had examined eight witnesses to substantiate her case. The respondents' plea was one of denial and false implication. One witness had been examined for the defence to show that the respondent No. 3 had divorced the appellant in March, 1976. At the trial, the case under Section 3 of the Act was not pressed. The learned Subdivisional Judicial Magistrate found and rightly so, 'that no case had been made out under Section 6-A (1) of the Act. The trial Court held that the prohibition, with regard to the dowry would apply only to the demand of dowry prior to the marriage and on a consideration of the evidence, found that the evidence in this regard was not satisfactory. The respondents were thus acquitted.

2. Mr. Mund, appearing for the appellant, has not challenged the order of acquittal in respect of the offence punishable under Section 3 of the Act. The allegation in respect of Section 6-A of the Act had not been substantiated and the finding in this regard cannot be assailed. As regards Section 4 of the Act, Mr. Mund has challenged the findings recorded by the trial Court as unreasonable. It has been contended by him that the finding recorded by the learned Magistrate that the prohibition 'with regard to the dowry would be only in respect of the demand of dowry prior to the marriage cannot be sustained in view of the law laid down by the Supreme Court in AIR 1983 S. C. 1219, 1984 (I) OLR (SC) 1 L.V. Jadhav v. Shankarrao Abasaheb Pawar and Ors.

3. Mr. Rahenoma, appearing for the respondents, has supported the order of acquittal. He has taken a lafel ground that the prosecution of the respondents for commission of an offence punishable under Section 4 of the Act was illegal as no Court could take cognizance of any offence under this section except with the previous sanction of the State Government or of such other officer as the State Government may. by general or special order, specify in this behalf.

4. ( The appellant had relied on Ext. 12. ) This document would read :

'District Office : Sundargarh By Regd. Post

( Judicial Section )

No. 1341/Uudl.

Dt. 20-4-76

To

Nurun Nisha Begum,

C/o S. K. Abdul Azinr,

Bata Mangala, Dalaipara,

Sambalpur.

Sub : Complaint under the Dowry Prohibition Act.

Superintendent of Police, Rourkela, has been instructed to take appropriate action according, to law. The H. S. L. authorities have been informed to take suitable administrative action against Md. Ayub.

She is advised to file a complaint, in the proper Court at law under the Dowry Prohibition Act, 1961, and the Dowry Prohibition ( Orissa Amendment ) Act, 1975. If she is eligible for legal aid under Rule 3(L) of Orissa Legal Aid to the Poor Rules, 1975, she may submit application for the same for consideration

Sd. 19.4.76

Addl. District Magistrate,

Sundargarh.'

5. It does not, in terms, indicate that sanction had been accorded for the prosecution of the respondents under Section 4 of the Act. Even assuming that this was the order of sanction, it does hot show that the Additional District Magistrate had applied his. mind to the facts of the ease According sanction is not an idle' formality. Before according sanction, there must be proper application of mind.

6. Mr. Mund has submitted that an application made on August 18, 1979, to call for the. record from the office of the Additional District Magistrate, Sundargarh, with regard, to according sanction had unreasonably been rejected by . the trial Court and the appellant had seriously been prejudiced by it and in this connection, my attention) has been invited to the principle laid dawn in AIR 1968 S. C. 178, Jamatraj Kewalji Govani v. State of Maharshtra, While dealing with the old Section 540 (present Section 311) of the Code of Criminal Procedure and S. 165 of the Evidence Act, it has been observed in that case that unless the defence has brought forward something suddenly and unexpectedly, the prosecution could not be allowed to rebut the evidence. In the instant case, the prosecution remained satisfied with Ext. 12. The prosecution closed its case and after the respondents were examined, they examined one witness in their defence and closed . their case. Arguments were heard on August 10, 1979, and the case was posted to August 20, 1979, for judgment. Having failed to take, steps at any earlier point of time for due proof of sanction, a very belated, application, was, made by the appellant as late as on August 18, 1979, when the case had been fixed for judgment two days thereafter and the learned Magistrate rejected, the application by an endorsement made by her on the body of the application. It could not be said in the circumstances of the case that the learned Magistrate had unreasonably refused the prayer of the appellant to call for the record. The prosecution of the respondents for the offence punishable under Section 4 of the Act was bad in law owing to want of legal and valid sanction.

7. Even assuming however, that Ext. 12 was the sanction order and that sanction had been accorded, no case had been established on the evidence.

8. On a consideration of the evidence, the learned Magistrate has held that the case of the appellant with regard to demand of dowry prior to the marriage had not been established by acceptable evidence. This finding cannot be said to be unreasonable or perverse.

9. As regard's the demand of dowry subsequent to the marriage, there was the evidence of appellant herself which was not quite consistent with that of P. Ws. 5 and 7 who had been examined in this regard. That apart, P. W. 7 was no other person than the appellant's sister's husband. As would appear, from the, evidence of P.W., he was one of the members of the bride's party when the settlement took place prior to the marriage. Thus, P. Ws. 5 and 7 were not disinterested witnesses. The. evidence of P. W. 9 had not been supported by any other independent evidence. On facts, therefore, the case of demand of dowry after marriage had not been made out.

10. In an appeal against acquittal, if the. view taken by the trial Court is reasonably possible on the evidence on record, no interference is called, for even . if another view can be taken, There is no justifiable reason for interference in the instant case.

11. The appeal fails and is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //