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2017 DIGILAW 581 (ORI)

Babrubahan Suna v. State of Orissa

2017-05-15

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. This application under section 482 of the Criminal Procedure Code has been filed by the petitioners Babrubahan Suna, Bhagirathi Suna and Kulamani @ Kunal Suna challenging the impugned order dated 17.01.2007 passed by the learned S.D.J.M., Sambalpur in C.T. Case No. 813 of 2006 in taking cognizance of the offence under section 4 of Dowry Prohibition Act, 1961 (hereafter ‘D.P. Act’) and issuance of process against them. The said case arises out of Sambalpur Mahila P.S. Case No. 24 of 2006. 2. It appears that one Ramesh Bag lodged a first information report before the Inspector in charge, Sambalpur Mahila police station on 31.05.2006 against the petitioners relating to the commission of offence under section 4 of the D.P. Act and accordingly, Sambalpur Mahila P.S. Case No. 24 of 2006 was registered and after completion of investigation, charge sheet was submitted on 14.12.2006 under section 4 of the D.P. Act against the petitioners and the learned S.D.J.M., Sambalpur passed the impugned order. 3. Mr. Rashmi Ranjan Nayak, learned counsel appearing for the petitioners contended that the impugned order is not sustainable in the eye of law in as much as taking of cognizance of offence under section 4 of the D.P. Act on the basis of the first information report registered only under section 4 of Dowry Prohibition Act is not permissible and since there is no complaint, the order of taking cognizance is vitiated in the eye of law and therefore, the impugned order should be quashed. 4. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel opposed the submission made by the learned counsel for the petitioners and contended that since section 7(1)(b)(i) of the D.P. Act provides that Court can take cognizance also on the basis of police report of the facts constituting the offence, registration of the F.I.R. only under section 4 of the D.P. Act and submission of charge sheet only for such offence is permissible. 5. 5. Adverting to the contentions raised by the learned counsels for the respective parties, it is apparent that section 4 of the D.P. Act which deals with penalty for demanding dowry states that 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 rupees. The proviso to the section 4 provides for imposition of lesser punishment than six months by the Court by assigning adequate and special reasons in the judgment. 6. Section 7 of the D.P. Act deals with cognizance of the offences. Section 7(1)(b) states that no Court shall take cognizance of an offence under the Act except upon its own knowledge or a police report of the facts which constitute such offence or a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organization. 7. The word ‘complaint’ as appears in section 7(1)(b)(ii) of the D.P. Act is obviously relatable to the ‘complaint’ as defined under section 2(d) of the Code of Criminal Procedure which means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. However, in the explanation to section 2(d), it is stated that 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. 8. Section 4 of the D.P. Act carries maximum punishment up to two years. Schedule II of the Cr.P.C. which deals with classification of offences against other laws indicates that if the offence is punishable with imprisonment for less than three years or with fine only then offence would be categorized as non-cognizable. 8. Section 4 of the D.P. Act carries maximum punishment up to two years. Schedule II of the Cr.P.C. which deals with classification of offences against other laws indicates that if the offence is punishable with imprisonment for less than three years or with fine only then offence would be categorized as non-cognizable. However, section 8 of the D.P. Act provides that for certain purposes, the offences under the Act shall be cognizable and the Code of Criminal Procedure shall apply to the offences under the Act as if they are cognizable offences, inter alia, for the purpose of investigation of such offences. Since maximum punishment prescribed under section 4 of the D.P. Act is two years, even though it can be investigated like cognizable offence in view of section 8 of the said Act but as provided in the second schedule of the Cr.P.C., for other purpose, it is to be categorized as ‘non-cognizable’. Section 2 (r) of the Cr.P.C. states that “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173. Therefore, in view of the explanation to section 2(d) of the Cr.P.C., when charge sheet was submitted only under section 4 of the D.P. Act which is a non-cognizable offence as per the second schedule of Cr.P.C., the report submitted by the police under section 173 (2) of Cr.P.C. shall be deemed to be a complaint and police officer who submitted such report shall be deemed to be the complainant. Therefore, the contention raised by the learned counsel for the petitioners that the order of taking cognizance under section 4 of the D.P. Act is not sustainable as there was no complaint but only a police report, cannot be accepted. Moreover, section 7(1)(b)(i) of the D.P. Act states that cognizance can also be taken on the police report of the facts which constitute such offence. Therefore, I am of the view that no illegality has been committed by the learned S.D.J.M., Sambalpur in taking cognizance of offence under section 4 of the D.P. Act basing on the charge sheet submitted by the investigating officer. 9. The learned counsel for the petitioners challenged the order of taking cognizance on further ground that no marriage was solemnized between the parties and therefore, the demand, if any, cannot constitute the ingredients of the offence under section 4 of the D.P. Act. 9. The learned counsel for the petitioners challenged the order of taking cognizance on further ground that no marriage was solemnized between the parties and therefore, the demand, if any, cannot constitute the ingredients of the offence under section 4 of the D.P. Act. 10. In the first information report, it is mentioned that as per the custom of the informant, marriage is celebrated observing ‘Badidera’ or ‘Gua-Nadiadhara’ ceremony, ‘Pindhani’ or ‘Nirbandha’, ‘Jwain Dekhani’, fixing ‘Lagna’ and ‘Baranugaman’ to celebrate the final phase form of ceremony. It is further mentioned that soon after Gua-Nadiadhara ceremony, the relationship of husband and wife germinates or created or started where after all other ceremonies are performed. It is the case of the informant that after observing Jwain Dekhani, Babrubahan Suna (petitioner no.1) and his family members demanded dowry of Rs. 3,00,000/- (rupees three lakhs) and a Toyota-Qualis Car to which the informant expressed his inability for which the accused persons brought accusation against the daughter of the informant to be of unchaste character. 11. The definition of ‘dowry’ as defined under section 2 of the Dowry Prohibition Act, 1961 states that if any property or valuable security is given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage between the parties, the same would come within the purview of ‘dowry’. The use of word ‘before the marriage’ in such definition clearly indicates that to attract the penal provision under section 4 of the D.P. Act, the actual solemnization of marriage is not necessary. 12. Even though the marriage has not been solemnized in the case but since the other rituals like Gua-Nadiadhara ceremony, Pindhani ceremony have already been completed and after observing Jwain Dekhani, the petitioner no.1 and his family members demanded dowry of cash of Rs.3,00,000/- and a Toyota-Qualis car, I am of the view that prima facie ingredients of the offence under section 4 of the D.P. Act is clearly attracted. 13. 13. Therefore, all the contentions raised by the learned counsel for the petitioners being not acceptable, I am not inclined to interfere with the impugned order invoking inherent power under section 482 of Cr.P.C. 14. Accordingly, the CRLMC application being devoid of merits, stands dismissed.