M. Khader Vali vs S. Hayat and Others

Y.V. Narayana, J.—The petitioner in CFR 20/92 on the file of the learned I Addl. Munsif Magistrate, Cuddapah, who is the revision petitioner in Crl. Rev. Petition No. 28/92 on the file of the learned I Addl. Sessions Judge, Cuddapah filed this petition u/s 482 of the Code of Criminal Procedure praying this Court to quash the order of the learned I Addl. Sessions Judge, Cuddapah dated 30.5.95 made in Crl.R.P. No. 28/92 and to direct the 1 Addl. Munsif Magistrate, Cuddapah to take cognizance of the complaint filed by him in CFR No. 20/92 to secure ends of justice.

The brief facts leading to filing of this petition are as under. The petitioner is the maternal uncle of the first accused in Cr.No. 33 of 1991 on the file of the 1 Town P.S., Cuddapah, which was subsequently registered as C.C. No. 191 of 1991 on the file of the I Addl. Munsif Magistrate, Cuddapah. A-2 is the daughter of A-l. A-2 married Basheer Ahamed on 28.2.90, A-3 is the son of A-l. A-4 and A-5 are brothers-in-law of A-l. A-6 is the distant relative of A-l. A-l gave a complaint to 7th respondent against Basheer Ahamed and his parents who are A-l to A-3 in C.C. No. 74 of 1995 on the file of the Mobile Magistrate, Cuddapah alleging that on demand by the accused therein, he paid a sum of Rs. 50,000/- by way of dowry to them and jewellery and house-hold articles. On that complaint, after verification, case was registered as calendar case. The petitioner herein gave a Police complaint on 13.3.91 alleging that the respondents-accused herein have committed the offence u/s 3 of Dowry Prohibition Act (the Act.) Thereafter when the Police did not take any action, he sent a reminder on 19.12.91 to take action against the accused. Therefore, the petitioner filed a private complaint before the I Addl. Munsif Magistrate, Cuddapah. The learned Magistrate dismissed the said complaint u/s 203, Cr.P.C. holding that the petitioner is not an eye-witness for giving the dowry and there is no sufficient ground to proceed with the case. He also further held that the complainant had no witnesses. The learned Magistrate further held that the statement recorded u/s 161, Cr.P.C. is no evidence by itself. Aggrieved by that order, the petitioner carried the matter in revision (Crl. R.P. No. 28 of 1992) before the learned I Addl. Sessions Judge, Cuddapah. In that Crl. Revision Petition, the petitioner filed Crl. M.P. No. 119 of 1995 to receive copy of FIR in Cr. No. 33/91; copy of charge-sheet in C.C. No. 191/91 and copy of M.C. 4/91 as additional evidence. The learned I Addl. Sessions Judge, after perusing the record and hearing the learned Counsel for either side, held that there is no illegality or impropriety in the order under revision and dismissed the revision petition confirming the order of the learned Magistrate. Against that the present petition is filed.

Before going into merits it is necessary to extract Section 3 of the Act which is to the following effect.

"3. Penalty for giving or taking dowry :

(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, which even in more :

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

(2) Nothing in Sub-section (1) shall apply to, or in relation to

(a) presents which are given at the time of a marriage to the bride without any demand having been made in that behalf:

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act,:

(b) Presents which are given at the time of a marriage to the bridegroom without any demand having been made in that behalf:

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf such presents are given.

It is contended by the learned Counsel for the petitioner that by the time already the private complaint is filed before the learned Magistrate, C.C. No. 74 of 1995 is pending and all the facts are available in that case; on its own knowledge the Court below ought not have dismissed, in view of Section 7(1)(b)(i) of the Act. It is also contended by the learned Counsel for the petitioner that the petitioner is the person aggrieved by the offence within the meaning of Section 7(1)(b)(ii) of the Act. It is further contended that as per Section 3 of the Act, the giver of the dowry is equally punishable alongwith the receiver of the dowry. The learned Counsel for the respondents 1 to 6, on the other hand, contended that the petition is not maintainable u/s 482, Cr.P.C. which amounts to a second revision and that the petitioner is not a relative of the person aggrieved by the offence within the meaning of Section 3 of the Act.

It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision, A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, . The word ''person'' must be referable to the ''person'' mentioned in Section 7(1)(b)(ii) of the Act. According to that section ''person'' means a person who is aggrieved by the offence or a parent or other relative of such person. The petitioner is not the person aggrieved by the offence as he is not the giver of the dowry nor is the parent or close relative of the person aggrieved by the offence. So the petitioner has no locus standi to make a complaint against the respondents 1 to 6 herein.

It is next to be seen that the petitioner appears to have made the complaint basing on the statement recorded u/s 161, Cr.P.C. It is to be noted that the statement recorded u/s 161, Cr.P.C. is absolutely inadmissible in evidence because it was a statement made u/s 161, Cr.P.C. during investigation of the case which was not at all admissible. Gajendra Singh Vs. State of U.P., .

Admittedly the petitioner is not a person aggrieved by the offence as he is not the giver; nor parent nor other relative of such person. According to Section 7(3) of the Act, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under the Act. The first respondent, who made the statement, is the person aggrieved by the offence, but not the petitioner. In view of Section 7(3) of the Act, the respondents 1 to 6 are not liable for any punishment. Therefore, the petitioner has no locus standi to initiate any criminal proceedings against the respondents 1 to 6 in view of Section 7(1)(b)(ii) of the Act.

The learned Magistrate has given cogent and convincing reasons for coming to the conclusion that the petitioner is not the person aggrieved by the offence, that he is not an eye-witness to the offence and that he had no witnesses to support his case rightly dismissed the petition. The learned Sessions Judge is right in confirming the findings of the learned Magistrate and dismissing the Crl. R.P. 28/ 92. I see no irregularity, or illegality or impropriety in the orders of the Courts below. Therefore this criminal petition merits dismissal and it is accordingly dismissed.