1. The point in issue in this petition, pertains pre-eminently to the interpretation of certain provisions of the Dowry Prohibition Act, 1961 and Sections 2(d) and (r) and 470(3) of the Code of Criminal Procedure.
2. In brief, the facts are, that petitioner No. 1. Lajpat Rai Sehgal, married Prem Kumari on 3rd March, 1980. This was in consequence of the engagment, which took place on 26th January, 1980. Prem Kumari's father, Mr. Vishan Dass Khanna, asserted that a list had been given to him on 25th January, 1980 by Lajpat Rai Sehgal and Nand Kishor Chopra, his brother-in-law, petitioner No. 2. The 'shogun' was given in accordance with the list. Thereafter, on 27th January, 1980, certain dowry demands were made. He gave what he possibly could at the marriage, but obviously Lajpat Rai Sehgal'a family was not satisfied. As such, they made a fresh demand on 4th March 1980, the day after the marriage, repeated demands were made through Nand Kishore Chopra and his wife Kanta Chopra, petitioner No. 3. Lajpat Rai Sehgal's sister, for a transistor radio, a fan and furniture etc.
3. On 9th May, 1980 Prem Kumari died of burns. Her father lodged a first information report at police station Moti Nagar on 13th May, 1980. It was F.I.R. No. 364/80, under section 306, Indian Penal Code. The case was investigated by the Criminal Investigation Department (Crimes). Delhi Police, Subsequently, it was transferred to the Central Bureau of Investigation; however, it was sent back to the Criminal Investigation department (Crimes). No challan under Section 306. Indian Penal Code, has been filed against the petitioners.
4. On 17th July, 1980, Sub-Inspector Pratap Singh applied, under Section 155(2), Criminal Procedure Code, for permission to investigate the non-cognizable offences under Sections 3 and 4 of the Dowry Prohibition Act, 1961 (To be referred to in short as 'the Act'). On the same date, the permission was granted by the Additional chief Metropolitan Magistrate, Tis Hazari, Delhi.
5. On 24th November, 1980 sanction to prosecute the petitioners was applied for. This was granted by the District Magistrate on 8th January, 1981. On 10th March, 1981 the complaint/challan was filed; summons were issued for 10th April, 1981. Thereafter, the matter was heard on 17th August, 1981 and 31st August, 1981. Certain objections as to the maintainability of the proceedings were taken by the petitioners.
6. On 7th November, 1981, the impugned order was passed, holding, prima facie, that an offence under Section 4 of the Act had been committed by the petitioners. As such, notice under Section 251. Criminal Procedure Code, was issued to the petitioners on the same date.
7. The said notice reads as follows :
'It is alleged against you that between 27-1-1980 to 4-3-1980 you had been demanding dowry consisting of Fridge, Radio, Double bed, other good quality material etc. from the parents of Smt. Prem alias Santosh who was married to Lajpat Rai Sehgal accused as a consideration of said marriage and thereby committed an offence punishable under Section 4 of the Dowry Prohibition Act. Show cause why you should not be punished for the said offence.'
8. By this present petition, the petitioners are challenging both the order and the notice dated 7th November 1981 and praying that the proceedings pending against them be quashed.
9. Mr. K. K. Sud, learned counsel appearing for the petitioners, raised the following points :-
(1) The complaint was time barred, as the time spent in obtaining the sanction, was not to be excluded in computing the period of a year as provided in Section 7(b) of the Act.
2(a) Under Section 7(b) of the Act a complaint has to be filed by the aggrieved party : as such a complaint by the investigating officer is not in compliance with the said provision.
2(b) A report by a police officer, in the case of a non-cognizable offence, which has been investigated after obtaining permission under Section 155(2), Criminal Procedure Code, is not a complaint within the meaning of Section 7(b) of the Act.
(3) No offence within the meaning of Section 2 read with Section 4 of the Act is made out, even if the entire evidence is examined.
10. I shall deal with the question of limitation first. Section 7 deals with the cognizance of offences and reads as follows :-
'7. Cognizance of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 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 authorised by this Act on any person convicted of an offence under this Act.'
11. Section 7(b) prescribes the period within which the complaint must be launched so that cognizance can be taken. This is one year. According to the petitioners, the offence is alleged to have been committed on 26th/27th January, 1980 and the challan was filed only on 10th March, 1981, i.e., obviously beyond the period of limitation, by about 42 days.
12. But the matter is not so simple and straightforward. In fact, though it is asserted that a demand was made on 26th/27th January, 1980, it is also asserted that demands were made during that period up to 4th March, 1980 and thereafter. But even apart from this, it is apparent from Section 4 of the Act, that cognizance cannot be taken by the court of any offence under this section without 'the previous sanction of the State Government or of such officer as the state Government may, by general or special order, specify in this behalf.'
13. It is, thereforee, clear that sanction is essential. It is a pre-condition to action. As above noticed, sanction was applied for on 24th November, 1980 and granted on 8th January, 1981. It took 45 days in processing. It would appear to me, that this period must be excluded. Section 470(3), Criminal procedure Code makes this position abundantly clear. It provides :
'470. (3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then in computing the period of limitation, the period of such notice or as the case may be, the time required for obtaining such consent or sanction shall be excluded.
Explanation. - In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded.'
14. It is true that the non obstinate clause in Section 7 of the act makes it clear that the provisions of the section prevail over the provisions of the Code of Criminal Procedure, if there is any conflict. But in the present case, there does not appear to be any conflict. Even, the periods of limitation prescribed in both the Act and the Code are the same.
15. Section 468 of the Code which prevents the Court form taking cognizance after the lapse of the period of limitation specifically states in S. 468(2)(b), that the period of limitation will be one year, if the offence is punishable with imprisonment for a term not exceeding one year. Under the Act, the term of imprisonment provided is less than a year; so both under Section 468(2)(b), Criminal Procedure Code as also under Section 7(b) of the Act, the period of limitation is the same, despite the fact, that Chapter xxxvI dealing with limitation was only introduced in the Criminal Procedure Code by the Criminal Procedure Code (Amendment) Act, 1978 (Act 45 of 1978).
16. It is also pertinent to notice the provisions of Section 4(2) of the Code of Criminal Procedure, from which, it is apparent, that all offences under the Act will be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code subject to any enactment in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Since the Act is silent, with regard to exclusion of time spent in obtaining sanction, the provisions of the Code come into play. As such, in the absence of any provision on this aspect in the Act, the time spent in obtaining sanction, must be excluded in terms of Section 470(3) of the Code.
17. It would, thereforee, appear to me, that the postulation of the petitioners, that the legislative intent of Section 7(2) of the act provides for an absolute period of limitation without permitting any exclusion of time for the period spent in obtaining sanction is without force. As there is no dispute, that if this time is excluded, the complaint is within time, I am of the opinion that the complaint is not time barred.
18. I now proceed to take up the next two points together, as they are interlinked. In this connection, it is necessary to examine the meaning of 'Complaint' in Section 7(b) of the Act. Complaint has not been defined in the Act. All that Section 7(b) provides is the period of limitation within which the complaint must be filed. It does not specify as to who must lay the complaint. In the absence of any specific description as to the persons who can lodge the complaint under the Act, it would appear to me that a complaint can be preferred by any person. The position pertaining to cases arising under Chapter XX, Indian Penal Code, i.e. offences relating to marriage, is different. In those cases, as specifically mentioned in Section 198 of the Code, only the aggrieved party as enumerated therein, is competent to prosecute the offender. But Section 198 of the Code is not applicable to offences under this Act.
19. The decision in Darshan Singh v. State of Punjab 1979 Ch Cri C. 86, stands on a different footing. What was being considered in that case were the provisions of the Act, as amended, by the Dowry Prohibition (Punjab Amendment) Act 1966. This amendment specifically provided that the complaint had to be by an aggrieved person Section 7(2), as amended, by the said Punjab amendment, reads :-
'No court shall take cognizance of any offence punishable under Sections 3, 4 and 4B except upon a compliant made within one year from the date of the offence, by some person aggrieved by the offence ..........'
20. Certain other amendments had also been introduced and an offence under Section 4A of the act was made cognizable.
21. The above decision of the Punjab and Haryana High Court, holding that the complaint not having been made by a competent complaint as required in Section 7 was without jurisdiction and all the proceedings were vitiated, was apparently based on the provisions of the Act as specifically amended. This Punjab amendment clearly required the complaint to be by an aggrieved person. It was in these circumstances that the report of the Deputy Superintendent of Police was held to be incompetent as the law required the complaint to be by Nirmala Devi, the aggrieved person. There is no such requirement in the Act, as applicable to the Union Territory of Delhi, and so, no absolute bar preventing the court from taking cognizance unless the complaint is by an aggrieved person.
22. Further, if a restraint is placed with regard to the person who can lodge the complaint then the statute so specifically provides, as has been done in Sections 195 to 199 of the Code. It is, thereforee, clear that in the facts and circumstances of the present case the complaint by the Investigating officer can be a complaint within the terms of Section 7(b) of the Act.
23. But is this complaint/challan a complaint within the meaning of Section 7(b) of the Act Though 'complaint' has not been defied in the Act the meaning of the word in common parlance is 'a grievance.' The Shorter Oxford English Dictionary defines it as follows :-
'1. The action of complaining; grieving
2. An expression of grief; a plaint, M.E.
3. Utterance of grievance a state of injustice suffered M.E.
4. Law. A statement of injury or grievance laid before a court (prop. a Court of Equity) for purposes of prosecution and redress : an accusation or charge; in U.S. the plaintiff's case in a civil action M.E. ..........'
From this it is apparent that a complaint is an assertion of injustice and/or injury.
24. Under Section 2(d) of the Code, 'Complaint' is defined and 'means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.'
25. Police report has also been defined in the Code in Section 2(r). It provides that a 'police report' - 'means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.'
26. Since a 'police report' has been specifically excluded from the purview of complaint in view of Section 2(d) of the Code, learned counsel for the petitioners seeks to submit that on the basis of the definition of a police report in Section 2(r) of the Code, there is no complaint before the court. but only a police report under Section 173 of the Code. However, this submission does not appear to take into account the Explanationn attached to the definition of 'complaint' under Section 2(d). This Explanationn reads as follows :
'Explanation - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint : and the police officer by whom such report is made shall be deemed to be the complainant'.
A harmonious reading of these provisions would indicate that a police report of a non-cognizable offence would be deemed to be a complaint.
27. Further, Section 4(1) and (2) of the Code provide for the trial of offences, whether punishable under the Indian Penal Code or any other Act. The only rider, attached to the trial of offences under any law other than the Indian Penal Code, is that it is subject to any enactment which may be in force regulating the trial. thereforee, the powers of the police to investigate have not been curtailed and/or taken away, unless the special Act so provides. The Dowry Prohibition Act has not so provided.
28. Section 8 of the Act makes it apparent that every offence under the Act is non-cognizable, bailable and non-compoundable. The imprisonment prescribed for the offences under the Act is limited to six months. It is, thereforee, clear that while trying cases under this Act, The summons procedure as enshrined in Chapter XX of the Code has to be followed.
29. Under the provisions of Section 155(2) of the Code, a police officer cannot investigate a non-cognizable case without the order of a Magistrate having power to try such a case or commit the case for trial. Pratap Singh, Sub-Inspector (Crimes) sought this permission. In the application, he alleged that on 13th May, 1980. Mr. V. D. Khanna, resident of 253, Shiv Nagar, New delhi, lodged a First Information Report No. 364 dated 13th May, 1980 under Section 306, Indian Penal Code at Police Station Moti Nagar and asserted therein that his daughter Prem was married to Lajpat Rai Sehgal on 3rd March, 1980. That both before and after the marriage, Lajpat Rai Sehgal had demanded dowry and the demands could be met only partially. Further demands of television, refrigerator etc. which were made, could not be complied with and as a result his daughter was harassed. She died of burns on 9th May, 1980. She was a dowry victim. A prima facie offence under Secs. 3/4 of the Act was made out which is non-cognizable.
30. On 17th July, 1980 permission was granted by the order of the Additional Chief Metropolitan Magistrate, Delhi, under Section 155(2) of the Code to investigate the non-cognizable offences under Sections 3/4 of the Act. Once the police officer got this permission he could investigate the non-cognizable case. The police, then, followed the procedure of investigation as provided in the Code. As soon as the investigation was completed, which was to be completed without unnecessary delay, the officer in charge of the police station forwarded to the Magistrate empowered to take cognizance of the offence, a police report.
31. There appears to be no impediment in the power of the police to investigate the offence unless expressly excluded from doing so : all that the police is required to do, if at wishes to investigate a non-cognizable offence, is to take permission of the Magistrate under Section 155(2) of the Code. An investigation is nothing but a collection of material. Any irregularity in collecting material is not fatal to the case. Sanction is a condition precedent for taking cognizance but not a pre-requisite for investigation. Thus, though, there can be an impediment with regard to taking cognizance by the court, in specified cases i.e. only on the complaint of specified persons or officer as in Sections 195 to 199 of the Code, there is no impediment in investigation.
32. In the present case, there are no restrictions on the persons who can lodge the complaint nor are there any restrictions with regard to investigation. The only restriction with regard to taking cognizance is that the prior sanction of the State Government or specified officer has to be obtained. As already observed there is no requirement that the complaint must be by a specified person.
33. Apart from this, it appears to me that since the giving and taking of dowry is a social malaise and the object and the aim of the Act is to prohibit and prevent this evil practice, the state, as a predominant party concerned with the welfare of the citizens and the society, must assist in eradicating this ill.
34. As already noticed, complaint has not been defined in the Act. The common parlance or dictionary definition would indicate that anything brought to the notice of the court by way of an injustice or injury is a complaint. This is a wide connotation. Apart from this, 'complaint' has been defined in S. 2(d) of the code and the Explanationn thereto; from the said provision, it would appear, that a complaint would include a report, made by a police officer after investigation, and this would be deemed to be a complaint; and the police officer making such a report, be deemed complainant.
35. The intention of the legislature, by adding this deeming provision in the Explanationn, appears to be to the effect that a culprit must not be allowed to escape and must be brought to book. The Explanationn does not speak of authorised or unauthorised investigations. All it refers to, is a police report made after investigation. After an investigation there is no doubt that the police officer has to submit a report. This report as in the present case must be deemed to be the complaint and the police officer, the complainant.
36. The Act contains no provisions as to how a case is to be investigated, inquired into or dealt with. In the absence of any specific provisions specific provisions, as already noticed, the Code must apply in view of Section 4(2) of the Code. The exclusion of the Code is only to the extent specifically provided. Section 7 specifically provides, that no court inferior to that of a Presidency Magistrate or a Magistrate, 1st Class shall try any offence and it will be lawful for them to pass any sentence authorised by the Act on a person convicted under the Act. This is the only restriction that has been specified in the Act apart from the question of limitation as mentioned in S. 7(b).
37. The Act consists of only ten sections. Section 1 pertains to the title, extent of territorial jurisdiction and commencement. Section 2 defines dowry. Sections 3 and 4 pertain respectively to the offence and penalty of giving and taking of dowry and of demanding dowry. With respect to the offence of demanding dowry directly or indirectly. Section 4 also provides that prior sanction is required to prosecute under this Section. Section 5, deals with the invalidity of an agreement for giving or taking of dowry and Section 6 with what is to become of the dowry once received. Section 7 and 8 pertaining to cognizance of cases and offences, have already been deal with in detail earlier. Section 9 provides the rule-making power and Section 10 the repeals.
38. It is, thereforee, apparent that the Act is not a complete Code and apart from what is actually provided for in the Act, the Code must apply.
39. In Union of India v. I. C. Lala : 3SCR818 , the Supreme Court dealing with a case under the Prevention of Corruption Act and the non obstinate clause in Section 5A. 'Notwithstanding anything contained in the Code of Criminal Procedure', held, that it merely carved out a limited exemption from the provisions of the Code of Criminal Procedure, in so far as it limited the class of persons who are competent to investigate into offences mentioned in the section and to arrest without a warrant. It did not make the whole of the Code of Criminal Procedure inapplicable.
40. It is, thereforee, clear that the effect of the non obstinate clause in S. 7 of the Act is that the period of limitation as prescribed therein would be paramount, if different from the period prescribed in the Code. It must also be limited to excluding the provisions of the Code on the aspect of the court that can try the offences under the Act and pass lawful sentences as authorized by the Act.
41. This provision was perhaps necessary, as under the old Code, though a Presidency Magistrate or a Magistrate 1st Class could impose a term of imprisonment up to two years, he could not impose a fine exceeding Rs. 2000/-. Since this Act, though providing for a maximum imprisonment term of six months, provided for a fine to the extent of Rs. 5000/-, the specific insertion in the section, as above noticed, was necessary. However, this difficulty has since been removed in view of the Code of 1973.
42. It would, thereforee, appear, in view of S. 2(d) of the Code, that all investigations by the police of non-cognizable offences, resulting in a report must be deemed to be a complaint as distinct from being a complaint. Further, as provided in S. 460 of the Code, most procedural laws with regard to the trial are not mandatory. The irregularities mentioned therein do not vitiate the proceedings. The relevant part of section 460 provides, inter alia, 'if any Magistrate not empowered by law to do any of the following things, namely :- ........................... (b) to order under Section 155, the police to investigate an offence :
............................. erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.'
43. The purpose of procedure is to further the ends of justice. The present tendency or the swing of the pendulum is away from the technicalities, so that, a result is brought about which is 'fair to the accused, fair to the State and fair to the vast masses of people'. A clear distinction has to be kept in mind between irregularities and illegalities.
44. As such, it appears to me that the report is a complaint within the meaning of section 7(b) of the Act. In my view, the fact that permission had been granted under S. 155(2) of the Code to authorize the investigation would not take the police report out of the purview of deemed complaint as defined in S. 2(d) and the Explanationn thereto.
45. In the circumstances of the case and keeping the object of the act in mind, complaint cannot be given such a narrow and technical meaning. That the object of the Act is not to be lost sight of while interpreting the provisions, has been repeatedly stated by the Supreme Court. The interpretation which promotes the purpose and brings about an effective result is to be preferred.
46. In Murlidhar Meghraj Loya v. State of Maharashtra. : 1976CriLJ1527 paragraph 5. Krishna Iyer, J. speaking for the court has opined that the 'social mission of food laws should inform the interpretative process so that the legal blow may fall on every adulterated.'
47. In Union of India v. Jyoti Chit Fund and Finance : (1976)IILLJ69SC once again. Krishna Iyer, J. speaking for the court has observed that 'where issues of public concern are involved and a public authority vitally interested in the correct principle alerts the attention of the court to the problem', it is less important to be obsessed with 'who spark the plugs of the court system than with what the merits of the rights or wrongs of the relief are.'
48. Keeping these principles in mind, it would be proper not to curtail the meaning of 'complaint' in the Act so that the legal blow can fall on the dowry demander and taker. thereforee, cognizance can be taken by the Magistrate under Section 190(1)(a) and the Magistrate need not examine the complainant in terms of Section 200 as he is a Police Officer i.e. the public servant within the meaning of that section.
49. The last point urged by counsel was that no offence was made out as there was no giving or taking of dowry.'Dowry' as defined in the Act means 'any property or valuable security given or agreed to be given either directly or indirectly - (a) by one party to a marriage to the other party to the marriage : or (b) by the parents of either party to the marriage or by any other person, to either party to the marriage or to any other person, at or before or after the marriage as consideration for the marriage of the said parties but does not include dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies ............'
50. It was, thereforee, urged that the giving or agreement to give either directly or indirectly must be as consideration for the marriage. It must be an agreement or understanding as understood in terms of Section 2(d) of the Contract Act. According to counsel the complaint does not make out such a case, especially in view of the decision of the Bombay High Court in Shankarrao Abasaheb Pawar v. L. V. Jadhav, Criminal Appeal No. 283 of 1981 dated 22nd December, 1981 : (Reported in 1983 Cri LJ 269).
51. In that case the Bombay High Court has held that in order to bring a case under Section 4 of the Act there must be a demand of dowry. Dowry as defined in Section 2 means any property agreed to be given. Such a demand must be of a property agreed to be given as consideration for the marriage of the parties. A demand by one party from the other to pay a certain amount is not a dowry.
52. The facts of that case were, Anita, a science graduate, got engaged to Pradeep, an engineering double graduate, working in the United States. The engagement took place on 12th June, 1978 at Pune. The marriage was performed also at Pune on 19th June 1979. When the marriage ceremony was in progress, Pradeep and his father allegedly demanded a sum of Rs. 50,000/- on the pretext that the amount was required for the travel tickets of the parties. They, further stated that unless this demand was met the marriage care money would not be completed. However, on the persuasion of the persons present, the marriage formalities were completed. Subsequently, the couple went to Bangalore and Ootacamand. In July, 1979. Pradeep left for the United States. Arrangements for procuring a passport and visa for Anita were also made. In the meanwhile, she was residing with her father-in-law and the demand for money continued. On 5th June, 1980, the complaint was filed, after obtaining the necessary sanction.
53. In a nutshell, the averment is that when the marriage ceremony was in progress, Pradeep and his father demanded a sum of Rs. 50,000/- from Anita's father and this demand was reiterated when Anita was staying with her father-in-law. There is no assertion that any amount was ever given. The only assertion is that a demand was made for a certain amount.
54. The Bombay High Court held that this did not come within the meaning of the word 'dowry'. It specifically left open the question, as to whether in a given case, a demand of an agreement to deliver certain property as a consideration for the marriage would constitute an offence under Section 4 of the Act. Certain discussion is recorded with regard to whether a mere demand at the initial stage without there being any agreement or even an agreement to pay certain property as a consideration for the marriage would not constitute an offence unless a demand was made on the basis of that agreement. The court, However, did not deal with these a aspects as it held that in view of Section 2 read with Section 4 what is necessary is that there must be a demand of property agreed to be given as a consideration for marriage. The complainant not having made any allegations to bring the case in conformity with this requirement, the court quashed the proceedings.
55. Section 4 of the Act pertains only to dowry demands directly or indirectly from the parents or guardian of the bride or bridegroom : whereas Section 2 defines dowry as property of valuable security given or agreed to be given by persons mentioned therein as consideration for the marriage. Though there does appear to be some inconsistency between the provisions of Sections 2 and 4 of the Act, in the facts of the present case it does not appear to be relevant, as the complaint clearly indicates that property or valuable security was demanded by the petitioners and Mr. V. D. Khanna, father of Prem Kumari did comply partially with these demands.
56. As stated in the complaint, demands were made by the petitioners with regard to money and clothes on 25th January, 1980. A list setting out the details was made over. Mr. V. D. Khanna supplied the clothes etc., as also, a part of the money on the date of the engagement i.e. 26th January, 1980. Subsequently, on 27th January 1980 further demands were made for television, refrigerator, double bed, a sofa, two-in-one, utensils, clothes etc. to be given in consideration for the marriage. Mr. V. D. Khanna, also tried to meet these demands. So obviously, there was some agreement in the matter. But, as the dowry demanded had been only partially provided, the petitioners continued to make demands, even subsequent to the marriage, on 4th March, 1980. So in the facts of the present case, the abovementioned decision of the Bombay High Court is neither pertinent nor relevant. In the circumstances, it cannot be said that no prima facie case is made out.
57. In the result and for the reasons outlined above, the petition is dismissed.
58. Petition dismissed.