AI Structured Summary
Not yet generated for this judgment
Judgment
N. Pandey, J.—This application u/s 482 of the Code of Criminal Procedure is for quashing an order dated 12-10-1993, passed by the 4th Additional Sessions Judge, Aurangbad, taking a decision to frame charges u/s 304B of the Indian Penal Code against the petitioners.
It appears on 28-8-1985 one Tapeshwar Singh (opposite party No. 2) lodged a case under Sections 302, 301 and 120B of the Indian Penal Code (in short ''the Code''). The Police after close of investigation submitted a final report under Sections 498A, 306 and 201 of the Code. The learned Magistrate took cognizance of the offence and summoned them to face trial.
During course of trial prosecution examined all the witnesses and the case was fixed for judgment. But the trial courts instead of delivering judgment, by the impugned order held that the offence, alleged, was with respect to a dowry death. Therefore, in his opinion, it was essential to frame a charge u/s 304B of the Code.
Mr. Krishna Prasad Singh, learned Counsel appearing for the petitioners, contended that the impugned decision of the learned Judge, framing charge u/s 304B of the Code, is illegal and without jurisdiction, because no offence, as defined under that provision, was committed by the accused persons. He further contended that the alleged offence was committed on 28-8-1985. The provisions of Section 304B of the Code was introduced first time on 19-11-1986. Therefore, the petitioners can not be convicted under the provisions of Section 304B of the Code, because on the day of alleged offence, such provision was not available. In support of his contention, he placed reliance over a decision of the Supreme Court in the case of Soni Deorajbhai Rabubhai v. State of Gujarat and Ors. 1992 BBCJ 8 .
The main question arises for detemination, whether Section 304B of the Code is applicable to the fact of the present case, where alleged dowry death took place prior to insertion of such provision in the Code.
It appears when the Dowry Prohibition Act, 1961, in its original form was found inadequate, the Legislatures in order to eradicate prevailing malady. In our society of the dowry system, incluing dowry deaths, introduced Section 304B of the Code after Section 304A of the Indian Penal Code. For easy reference it is reproduced hereunder ;
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was Subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.
Explanation,--For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1981).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
From the facts, stated above, it is clear that the offence of dowry death punishable u/s 304B of the Code is new offence, inserted in the Code with effect from 1986 when Act No. 43 of 1986 came into force. The offence u/s 304B is punishable with minimum sentence of 7 years, which may extend of life imprisonment. As indicated above, by insertion of new provision in the Code, for more stringent effence than Section 498A, Section 304B of the Code has been introduced. It is substantive provision, creating a new offence and not merely a provision affecting a change in procedure for trial of a pre-existing substantive offence.
It would be appropriate to notice a passage from the judgment in the case of Soni Deorajbhai Babubhai v. State of Guajarat and Ors. (supra), wherein, identical question emerged for consideration:
It follows the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in Section 304B of the Indian Penal Code which is a new offence created subsequent to the commission of the offence attributed to the respondents does not suffer from any infirmity.
As indicated above, the alleged occurrance in the present case took place on 28-8-1985, whereas Section 304B of the Code was inserted with effect from 19-11-1986. Therefore, the petitioners cannot be convicted for an offence u/s 304B of the Code, which was introduced subsequent to the date of commission of the alleged offence.
Apart from the aforesaid, it would be relevant to notice that Article 20(i) of the Constitution of India gives full protection to accused persons under such situation. It would be appropriate to quote the said provision hereinafer.
Protection in respect of conviction for offences,-(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
From a bare reference to the said provision, it is apparent that no person can be convicted for an offence under any of the provision of the Code which was not available on the day of the commission of the offence. For the reasons stated above, the impugned order cannot sustain in eye of law.
However, as indicated above, the accused persons were tried for the offences under Sections 498A, 306 and 201 of the Code. The court below shall now consider and decide the prosecution case for those offence only.
In result, this application is allowed to the extent, indicated above, and the impugned order is quashed.