Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 855 (JHR)

Vivek Rai v. State of Jharkhand

2008-08-04

AMARESHWAR SAHAY, D.P.SINGH

body2008
Order Heard the parties. 2. The present application for quashing has been referred to the Division Bench by the learned Single Bench of this Court to consider " as to whether Section 4 of dowry prohibition Act as amended by' Bihar Act IV of 1976 Stood repealed or modified in view of the subsequent amendment of Section 4 of the dowry Prohibition by Act by the Parliament Act 63 of 1984?" 3. This question has been referred by the learned Single Judge in view of two decisions of two different Single Benches of this Court, i.e. the decision rendered in the case of Sanjay Pd. Sinha @ Sanjay Kumar Singh & Others vs. State of Jharkhand & Anr. passed in Cr. M.P. No. 436/2006*. Which, according to the referring Judge, is in direct conflict with the other decisions rendered in the case of "Purshottam Dubey & Others vs. State of Bihar reported in 2005(3) JCR 456 (Jhr.) [ : 2005(4) JLJR 460 )" and the case of ."Gautam Joshi & Ors vs. State of Jharkhand & Others, reported in 2003(2) JCR 602 (Jhr.) [: 2006(2) JLJR 557 ]". The brief facts of the case are that the marriage of the petitioner no. 1 Vivek Rai was solemnised with G.P. No.2 Sunita Rai on 3.7.1998 in Bokaro Steel City according to the Hindu customs and rituals. The G.P. NO.2, i.e. the Wife filed a complaint case being Complaint Case No. 330/1999 in the Court of the Chief Judicial Magistrate, Bokaro at Chas against the four petitioners alleging commission of the offence under Sections 498A, 406, 307 IPC and Sections 3/4 of the Dowry Prohibition Act alleging therein that the petitioner was married to the opposite party no. 2 Sunita Rai on 3.7.1998 to Bokaro Steel City and after marriage the opposite party no. 2/complainant went to her matrimonial home at Allahabad. After two days staying in her matrimonial home, her father-in-law on the plea that her father was solvent to pay demanded Rs. 1.5 lakh which was supported by both of her Nanad. It is alleged that a sum of Rs. 4,50,000/-was demanded as dowry before the marriage. Though her father was not in a position to pay such huge amount but from his retiral benefits he got a draft of Rs. 3,41,000/- prepared on 18.5.1998 and sent to the father of the petitioner which was accepted on certain terms. It is alleged that a sum of Rs. 4,50,000/-was demanded as dowry before the marriage. Though her father was not in a position to pay such huge amount but from his retiral benefits he got a draft of Rs. 3,41,000/- prepared on 18.5.1998 and sent to the father of the petitioner which was accepted on certain terms. When the opposite party no. 2/complainant appraised. the matter relating to demand of dowry by her in laws before her husband, he also reiterated the demand besides, he raised demand of a Maruti Car to be brought from her parental house. On the third day no food was provided to her and on the fourth day she was pressurized by her father-in-law to convey on telephone to her parents about the demand raised by them. On such receiving telephonic message her father and brother came to Allahabad to whom she narrated all the facts and after putting land on mortgage her father obtained Rs. 1,50,000/- and paid It to the accused persons and only then the opposite party no. 2/complainant was allowed to go with her father after retaining all her Jewelleries and it was cautioned that she would be allowed in her matrimonial home only on the delivery of a Maruti Car by her father. When the petitioner used to visit the parental home of the opposite party no. 2, he used to reiterate the demand of car and also used to torture the opposite party no. 2/complainant mentally and physically. In New Delhi also where the petitioner was posted. the opposite party no. 2/complainant was subjected to torture for the fulfillment of the demand of the car. It is alleged that the petitioner used to confine her on the house under lock and key whenever used to go out on his job and used to return in the state of intoxication. No arrangement was made for preparation of food in the house and she was brutally assaulted and mentally tortured by him and her physical condition. therefore, day by day deteriorated. During the Durga Puja her father-in-law as well as sister-in-laws visited New Delhi and they also tortured and reiterated the demand of Rs. Two lakhs .for purchasing a Maruti Car. No arrangement was made for preparation of food in the house and she was brutally assaulted and mentally tortured by him and her physical condition. therefore, day by day deteriorated. During the Durga Puja her father-in-law as well as sister-in-laws visited New Delhi and they also tortured and reiterated the demand of Rs. Two lakhs .for purchasing a Maruti Car. On 1.10.1998 at the instance of the petitioner-husband Vivek Rai, her father-in-law after pouring Kerosene Oil on her body attempted to set her on fire with the help of her sister-in-laws but she screamed and out of fear of the neighbours the occurrence could not be given effect to and she any how could inform her parents. On such information her brother came to New Delhi with a sum of Rs. 50,000/- and delivered it to her father-in-law. As the physical and mental condition of the opposite party no. 2 deteriorated, she was brought to Bokaro and after treatment her mental condition she returned to normalcy and after sometime the petitioner with his father came to Bokaro and again put pressure for payment of balance amount to which her father expressed his inability to pay such huge amount. Her husband lastly visited Bokaro on 17.10.1999 and reiterated the demand of Rs. 2 lakhs by putting pressure but as her father expressed inability to pay the same, the accused persons including petitioner attempted to assault her. The matter was informed to the police station but without any action hence the complaint case No. 330 of 1999 was filed before the Chief Judicial Magistrate, Bokaro and cognizance of the offence was taken under Section 498A of the Indian Penal Code as well as 3/4 of the Dowry Prohibition Act. 4. The court below recorded the statement of the complainant on solemn affirmation and, thereafter, started enquiry under Section 202 Cr.P.C. and. then, finding prima facie case made out against the accused persons, took cognizance of the offences under Section 498A IPC and Section 3/4 of the Dowry Prohibition Act. Finding sufficient materials for issuance of process summons were issued. Subsequently, by order dated 4.1.2006 the charges were also framed against the accused/petitioners for the offence punishable under Section 498A IPC and Sections 3/4 of the Dowry Prohibition Act. 5. Finding sufficient materials for issuance of process summons were issued. Subsequently, by order dated 4.1.2006 the charges were also framed against the accused/petitioners for the offence punishable under Section 498A IPC and Sections 3/4 of the Dowry Prohibition Act. 5. The accused petitioners, by filing this application for quashing, are challenging the order taking cognizance as well as the order of framing charges against them. The quashing application was placed for admission before the learned Single Judge, who also tried to resolve the matrimonial dispute amicably between the parties but as it appears from the order dated 10.1.2001 that the efforts for amicable settlements between the parties failed and thereafter, the learned Single Judge commenced hearing of the quashing application on its merit. 6. Before the learned Single Judge it was argued on behalf of the petitioners that Section 4 of the Dowry Prohibition Act as amended by Bihar Amendment Act IV of 1976, lays down that prior sanction is necessarily required to be taken before taking cognizance of the offence under Section 4 of the Dowry Prohibition Act and since no such sanction, as required. has been taken and, therefore, the order taking cognizance as well as the subsequent proceeding in the Court below is bad in law and, therefore, is liable to be quashed. In support of such submissions the judgment of the learned Single Judge, rendered in the case of "Sanjay Pd. Sinha @ Sanjay Kumar Sinha & Other vs. State of Jharkhand & Ors. passed in Cr. M.P. No. 436/2006* has been cited wherein it has been held that the cognizance taken in absence of sanction under Section 4 of the Dowry Prohibition Act would be bad in law in view of the Bihar Amendment Act IV of 1976. whereby obtaining of prior sanction is a condition precedent for taking cognizance for the offence under Section 4 of the Dowry Prohibition Act. The said decision was rendered by the learned Single Judge relying on one another decision of a Single Judge of this Court in the case of "Saranan Chattopadhyay VS. State of Bihar (now Jharkhand) reported in 2006(1) JCR 101 [: 2006(1) JLJR 141 ]". 7. The said decision was rendered by the learned Single Judge relying on one another decision of a Single Judge of this Court in the case of "Saranan Chattopadhyay VS. State of Bihar (now Jharkhand) reported in 2006(1) JCR 101 [: 2006(1) JLJR 141 ]". 7. On behalf of the complainant O.P.No.2 it was submitted before the learned Single Judge that Section 4 of the Dowry Prohibition Act as amended by the Parliament vide Act 63 of 1984 does not stipulate about any requirement of sanction for launching prosecution under Section 4 of the Dowry Prohibition Act. In support of said submission, two decisions were cited, i.e. the case of "Purshottam Dubey & Others VS. State of Bihar & Others reported in 2005(3) JCR 456 (Jhr.) [ : 2005(4) JLJR 460 ]" and other in the case of "Gautam Joshi VS. State of Jharkhand & Others reported in 2003(3) JCR 602 (Jhr.) [ : 2006(2) JLJR 557 ]". 8. After hearing the parties, it appeared to the learned Single Judge that there was vertical conflict in the decisions rendered on this point, which requires to be reconsidered and, thereby the matter was referred by him to the Division Bench for deciding the issue and, thereby, this application has been placed before us to decide the issue. 9. Mr. Jai Prakash, learned senior counsel appearing for the petitioners has advanced the same very argument before us and has added that the Supreme Court in the case of "Rajesh Kumar Kejriwal & Others VS. State of Bihar & Anr. reported in (1997)10 SCC 524 ", has held that by the Bihar Amendment by Act IV of 1976 in the Bihar Act IV of 1976, a proviso has been added in which it is necessary that previous sanction of the State Government or of such Officer as the State Government may, by general or special order, specify in that behalf should be obtained before initiating any prosecution under Section 4 of the Dowry Prohibition Act, 1961. Such amendment was given effect to from 20.1 .1976. The Supreme Court held that the prosecution having been launched under Section 4 of the Dowry Prohibition Act without sanction is not permissible and. thereby, the cognizance of the offence under Section 4 of the Dowry Prohibition Act was quashed by the Supreme Court. 10. On the other hand, Mrs. Vandana Singh. The Supreme Court held that the prosecution having been launched under Section 4 of the Dowry Prohibition Act without sanction is not permissible and. thereby, the cognizance of the offence under Section 4 of the Dowry Prohibition Act was quashed by the Supreme Court. 10. On the other hand, Mrs. Vandana Singh. learned counsel appearing for the complainant O.P. No. 2 submitted that whatever the Supreme Court In the case of the "Rajesh Kumar Kejriwal & Others" (supra) has laid down, is limited to the extent of the amendment made by the State Government in Section 4 of the Dowry Prohibition Act requiring the need of sanction. She, by elaborating her argument, submitted that the Supreme Court did not apply its mind to the changed scenario because this point was not raised there that after amendment envisaged by the State Government, the Central Government also amended Section 4 doing away with the need of sanction and, therefore, the Central amendment in the same field being later is now in direct conflict With the State amendment to that extent and, therefore, the State amendment would be deemed to be automatically repealed. She further submitted that the Apex Court In the case of "Rajesh Kumar Kejriwal" has neither noticed nor considered the Central amendment made in the Dowry Prohibition Act doing away with the need of sanction and, therefore, the decision of the Supreme Court on the aforesaid case of Rajesh Kumar Kejriwal cannot be said to be a decision on the point in issue. 11. In the light of the submissions noticed above, now let us examine the relevant provision of law in this regard. 12. The Dowry Prohibition Act, 1961, i.e. Act 21 of 1961 has been enacted by the Parliament. Originally Section 4 of the said Act was as under before amendment:- "Penalty for demanding dowry.-If any persons, after the commencement of this Act, demands, directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees or with both: Provided that no Court shall take cognizance of an offence under this section except with the previous sanction of the State Government or of such officer as the State Government may, by general or specific order. specify in this behalf." 13. The State of Bihar in the year 1976 through Act IV of 1976 amended Section 4 of the Dowry Prohibition Act, which reads as under:- "Penalty for demanding dowry.--If any persons, after the commencement of this Act, demands, directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees: Provided that no Court shall take cognizance of an offence under this section except with the previous sanction of the State Government or of such officer as the State Government may, by general or specific order, specify in this regard." 14. Subsequently, the Parliament by Act 63 of 1984 amended Section 4 of the Dowry Prohibition Act, whereby the requirement of prior sanction for launching prosecution was done away with. After amendment Section 4 of the Dowry Prohibition Act now reads as follows:- "Penalty for demanding dowry.--If any person demands, directly or Indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupee: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months." 15. It has to be taken note of the fact that subsequent to the amendment made in the Central Act by the Parliament by Act 63 of 1984, the State of Bihar has not made any amendment like the Central Law. The requirement of prior sanction before launching prosecution under Section 4 of the Dowry Prohibition Act is still there in the State Act. 16. In this situation, it has to be considered as to whether there is any conflict and inconsistency in between the two Acts i.e. Central Act made by the Parliament and the State Act made by the State Legislature, so far as the provision of taking prior sanction for launching prosecution under Section 4 of the Dowry Prohibition Act is concerned and if it is found to be there then what would be its effect. 17. Article 254 of the Constitution of India is there to meet such a situation, which reads as under:- "254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.--(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." 18. Proviso to Article 254(2) of the Constitution of India empowers the Parliament to enact a law adding to, amending, varying or repealing a law of the State when it relates to the matter mentioned in a Concurrent list. Therefore, under this proviso to Article 254(2) of the Constitution, the Parliament has the power to repeal a State Law. Even in a case where the Parliament does not specifically and expressly repeals any State Law but if it is found that the State Law is in conflict .with the Central Law in respect of the same matter then the Central Law shall prevail and the State Law shall to the extent of repugnancy be void. Even in a case where the Parliament does not specifically and expressly repeals any State Law but if it is found that the State Law is in conflict .with the Central Law in respect of the same matter then the Central Law shall prevail and the State Law shall to the extent of repugnancy be void. Reference in this regard may be had to the law laid down by the Supreme Court cited by the counsel for the opposite party in the case of "Zaverbhai Amaidas vs. State of Bombay reported in AIR 1954 SC 752 " and in the case of "T. Barai vs. Henry AH Hoe reported in (1983)1 SCC 177 ". 19. In the case of "Zaverbhai Amaidas vs. State of Bombay reported in AIR 1954 SC 752 " the Supreme Court. has held as follows:- "Now, by the proviso to Art. 254(2) the Constitution has enlarged the powers of Parliament, and under that proviso. Parliament can do what the Central Legislature could not under S. 107(2) of the Government of India Act, & enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can acting under the proviso to Art. 254(2), repeal a State Law. But where it does not expressly do so, even then the State Law will be void under that provision if it conflicts with a later "law with respect to the same matter" that may be enacted by Parliament." In the said decision the Supreme Court has also held that:- "The important thing to consider with reference to this provision is whether the legislation is "in respect of the same matter". If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Art. 254(2) will have no application. The principle embodied in S. 107(2) and Art. 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State". The principle embodied in S. 107(2) and Art. 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State". It has further been held in that case that:- "It is true, as already pointed out, that on a question under Art. 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Art. 254(2) where the further legislation by Parliament is in respect of the same matter as that of the State Law." 20. In the case of "T. Barai vs. Henry AH Hoe reported in (1983)1 SCC 177 " the ratio which has been laid by the Supreme Court is as follows:- "By virtue of the proviso to clause (2) of Article 254 Parliament may repeal or amend a repugnant State Law on concurrent subject having the President's assent, either directly. or by itself enacting a law repugnant to the State Law with respect to the 'same matter'. A State law would be repugnant to the Union Law when there is direct conflict between the two laws or where both laws operate in the same field and the two cannot possibly stand together, e.g. where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State Law under Article 254(1) 1. That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act stood impliedly repealed." 21. In all such cases, the law made by Parliament shall prevail over the State Law under Article 254(1) 1. That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act stood impliedly repealed." 21. In the light of the decisions of the Supreme Court, it has to be considered in this case as to whether the provision of Section 4 of the Central Law, i.e. Act 63 of 1984 and the State Law, i.e. Bihar Act IV of 1976 are in respect of the same matter and whether the two laws operate in the same field. It has to be kept in mind that if it is found that the State Law deals not with the matters, which formed the subject of the Central Legislation but with other and distinct matter then in that case Article 254(2) of the Constitution of India will have no application but if it is found that both the laws, i.e. the Central Law and the State Law are in respect of the same matter and they are operating in the same field then Article 254(2) of the Constitution of India shall at once comes into play. 22. Section 4 of the Dowry Prohibition Act, 1961, is comprehensive Code covering the field of punishment for the offences under the Act and the procedure has been prescribed therein for launching prosecution. In the Central Law, i.e. Dowry Prohibition Act, 1961 as it stands today after amendment made in the year 1984 by Act 63 of 1984, now there is no requirement for obtaining prior sanction of the Government for launching prosecution under Section 4 of the Dowry Prohibition Act, whereas in the State Law as amended by Bihar Act IV of 1976, such requirement of prior sanction of the Government for launching prosecution under Section 4 of the Act is still there. The provision of Section 4 of the Dowry Prohibition Act, 1961 made by the Parliament and Section 4 as amended by Bihar Act IV of 1976 made by the State Legislature are, therefore, clearly in respect of the same matter and they are operating in the same field because for the purpose of launching prosecution under Section 4 of the Dowry Prohibition Act, the Central Law does not speak about the requirement of prior sanction, whereas the State Law envisages that prior sanction of the Government is required to be taken before launching prosecution. 23. In this view of the matter, we hold that Section 4 as amended by Bihar Act IV of 1976 cannot prevail as against Section 4 of the Central Law as amended by Act 63 of 1984 because there is direct conflict in between the two laws since both the laws are operating in the same field and, as such, the two laws cannot possibly stand together. Therefore, the Sate Law, i.e. the proviso to Sec. 4 of the Bihar Act IV of 1976, requiring previous sanction of the State Government or such officer as the State Government may. by general or special order, specify in this behalf IS held to be repugnant to the Union Law, i.e. the Central Law and, as such, is void and it would be deemed to have been repealed. 24. A Division Bench of the Patna High Court in the case of "Deo Narayan Lal Das & Others VS. State of Bihar & Another reported in 1992(2) JLJR 560 has also held in the same line and has stated that Act 63 of 1984 enacted by the Parliament being a later law with respect to the same matter would prevail over the State Law. 25. In the judgment of the 'Single Bench of this Court in the case of "Gautam Joshi VS. State of Jharkhand & Others, reported in 2003(3) JCR 602 (Jhr.) [: 2006(2) JLJR 557 ]", the learned Single Judge of this Court after relying the decision of the Patna High Court in Deo Narayan Lal Das case (supra) has also held that no prior sanction to take cognizance of the offence under Section 4 of the Dowry Prohibition Act is required. The view taken by the learned Single Judge is correct. 26. The view taken by the learned Single Judge is correct. 26. So far as the decision of the another Single Judge of this Court in the case of "Sanjay Pd. Sinha @ Sanjay Kumar Sinha & Others VS. State of Jharkhand & Others" passed in Cr. M.P. 436/2006 is concerned, it appears that the said judgment was passed wholly on the basis of the decision in the case of "Saranan Chattopadhyay vs. State of Bihar (now Jharkhand) reported in 2006(1) JCR 101 [: 2006(1) JLJR 141 ]" but we find that in "Saranan Chattopadhyay" (supra) case, no point of law was decided rather in the said case the argument was advanced on behalf of the petitioner that prior sanction is required to be taken for launching prosecution in view of the Bihar amendment by Bihar Act IV of 1976 relying on the decision of the Supreme Court In the case of "Rajesh Kumar Kejriwal & Others vs. State of Bihar & Anr. reported in (1997)10 SCC 524 ". It appears that in the said case the counsel for the opposite parties conceded on that point. It also appears that in the said case it was held that though the point with regard to requirement of prior sanction was raised before the learned trial court at the time of framing of charge but the trial court did not touch the point and, therefore, it was held by the Single Judge that the order refusing to discharge, passed in the said case by the trial court, suffered from non-application of mind. 27. Now, so far as the decision of the Supreme Court in the case of "Rajesh Kumar Kejriwal & Others vs. State of Bihar & Anr. reported in (1997)10 SCC 524 " IS concerned, in our view, the submission of the learned counsel for the opposite parties is correct that in the said case this point was not raised before the Supreme Court as to what would be the effect of the proviso to Sec. 4 of the State Act as amended by Bihar Act IV of 1976 after the enactment of Central Law by way of amended Act 63 of 1984. In this case. it was only held after noticing the State amendment made in Section 4 of the Dowry Prohibition Act that requirement of prior sanction for launching prosecution was there. In this case. it was only held after noticing the State amendment made in Section 4 of the Dowry Prohibition Act that requirement of prior sanction for launching prosecution was there. The Central amendment made by the Parliament by Act 63 of 1984 was not placed before the Supreme Court and, therefore, the point as to whether there is a conflict in between the Central Law and the State Law was neither raised nor decided in the said case. 28. In this view of the matter, in our view the aforesaid decision of the Supreme Court in "Rajesh Kumar Kejriwal's case (supra) is not a decision on the point In issue raised before us. 29. In view of the discussions and findings above, the question referred by the learned Single Judge is answered in affirmative for the reason stated hereinabove and the petition to quash the criminal proceeding pending in the court below is dismissed and it is held that after the enactment of the amendment in the Central Law i.e. Dowry Prohibition Act. 1961 by Act 63 of 1984, now there IS no requirement for taking prior sanction of the State Government or such Officer as the State Government may, by general or special order, specified on that behalf for launching prosecution under Section 4 of the Dowry Prohibition Act. It is also held that the State Law i.e. the proviso to Sec. 4 of the Bihar Act IV of 1976 requiring previous sanction of the State Government or such officer as the State Government may, by general or special order, specify in this behalf is held to be repugnant to the Union Law i.e. the Central Law and, as such, is void and it would be deemed to have been repealed.