CAIMINAL APPELLATE JISRISDICTION: Criminal Appeal No 494 of 1982.
Appeal by Special Leave from the Judgment and order dated the 22nd December, 1981 of the Bombay High Court in Criminal Appln. No. 283 of 1981.
Y. S. Chitale. V. N. Ganpule, Sirish Gupta and Mrs. V.D. Khanna for the Appellant.
V. S. Desai and G. B. Sathe for the Respondent.
P. G. Gokhale and M. N. Shroff for the State of Maharashtra.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is directed against the judgment of a Division Bench of the Bombay High Court in Criminal Application No. 283 of 1981, quashing the proceedings in Criminal Case No. 1634 of 1980 on the file of the Judicial Magistrate, First Class (Anti Corruption), Pune. The application in the High Court was filed by the respondents in this appeal, who are the
two accused in that criminal case, for quashing the criminal proceedings as well as the order of the Judicial Magistrate, issuing processes against them in that case.
The appellant L. V. Jadhav was the first respondent while State of Maharashtra was the second respondent in the application before the High Court. The first respondent Shankarrao Abasaheb Pawar is the father of the second respondent Pradeep Shankarra Pawar. There was a proposal to get the appellant’s daughter Anita, a Science Graduate, married to the second respondent, a double Graduate in Engineering, working in the United States. After Anita and the second respondent approved each other there was an engagement ceremony on 12.6.1978 at Pune and the marriage was performed at that place on 19.6.1979 after the first respondent came from the United States in May 1979.
According to the appellant’s complaint, when the marriage ceremonies were in progress on 19.6.1979, both the respondents demanded a cash of Rs. 50,000 from the appellant in the presence of respectable persons under the pretext that the money was required for the transport of Anita and the second respondents to the United States. The respondent told the appellant that if he did not comply with that demand by way of dowry further ceremonies monies would not be completed. Some respectable persons who were present at that time persuade the respondents to complete the marriage ceremonies and formalities and thereafter the marriage ceremonies were over. The second respondent alone went to the United States in July 1979 as the passport and visa for Anita had to be arranged which was done some time later while Anita was staying in the house of the first respondent. Anita was not sent to the United States and the respondents continued to persist in their demand for the money when she was staying in the first respondent’s house. The appellant filed a complaint before the Judicial Magistrate, First Class on 5.6.1980 against both the respondents, alleging that they had committed an offence under s. 4 of the Dowry Prohibition Act, 1961 by demanding the sum of Rs. 50,000 as mentioned above. This was done after the appellant had obtained the necessary sanction required by the proviso to s 4 of the Act. The Judicial Magistrate verified the complaint and issued processes to the respondents and sent summonses to the United States where the first respondent was staying with the second respondent at that time.
The respondents challenged the Magistrate’s order issuing summonses to them by filing their application in the High Court. The learned Single Judge before whom the application originally came up for consideration referred to a Division Bench. The contention of the learned counsel for the respondents before the High Court was that even if the allegations made in the appellant’s complaints were true no offence under s. 4 of the Act is disclosed, whereas for the appellant it was contended before the High Court that the aforesaid demand for Rs. 50,000 would constitute an offence under s. 4.
Reading the definition of "dowry" given in s. 2 of the Act into s. 4, the learned judges held that for bringing a case under s. 4 of the Act, there must be a demand for dowry as such, that is, for any property agreed to be given as consideration for the marriage, and that as there is no allegation in the complaint that the appellant had agreed to pay the sum of Rs. 50,000 and the respondents thereafter demanded the same no offence under s. 4 of the Act is disclosed in the complaint. In that view the learned judges allowed the respondent’s application and quashed the proceedings in the appellants’s complaint and the Magistrate’s order issuing the processes to the respondents. Hence this appeal by special leave.
The question for consideration is whether the allegation made in the appellant’s complaint that there was a demand by the respondents when the ceremonies of the marriage of Anita with the second respondent were in progress, for the payment of Rs. 50,000 to be made by the appellant on pain of the marriage ceremonies not being completed if the demand was not complied with under the pretext that the said amount was required for the passage of Anita and the second respondent to the United States discloses an offence under s. 4 of the Act. It would be necessary to extract the following relevant ss. 2 to 5 and 8 of the Act for easy reference in order to consider the question:
"2. In this Act, "dowry 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 a 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 mahr in the
case of persons to whom the Muslim Personal Law
(Shariat) applies.
Explanation I-For the removel of doubts it is
hereby declared that any presents made at the time
of a marriage to either party to the marriage in
the form of cash, ornaments, clothes or other
articles, shall not be deemed to be dowry within
the meaning of this section, unless they are made
as consideration for the marriage of the said
parties.
Explanation II- The expression "valuable
security" has the same meaning as in section 30 of
the Indian Penal Code.
3. 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 which may extend to six months, or
with fine which may extend to five thousand
rupees, or with both.
4. If any person 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 moths, or with fine which may extend to five
thousand rupees, or with both;
Provided that no court shall take cognizance
of any 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 special order, specify in this behalf.
5. Any agreement for the giving or taking of
dowry shall be void.
6. Every offence under this Act shall be non-
cognizable, bailable and non-compoundable."
According to the appellant’s complaint, when the marriage of his daughter Anita and the second respondent, the son of the first respondent, was in progress on 19.6.1979, both the respondents demanded from him cash of Rs. 50, 000 in the presence of respectable persons under the pretext that the amount was required for the passage or transport of Anita and the second respondent to the United States where the second respondent was employed at that time and they told him that if he did dot comply with their demand by way of dowry further ceremonies in the marriage would not be completed. It is further alleged that some respectable persons who were present at that time persuaded the respondents to complete the marriage ceremonies and formalities and thereafter the marriage ceremonies were completed and that subsequently the second respondent went to the United States in July 1979 alone because the passport and visa of Anita had to be arranged which was done some time later while Anita was staying in the house of the first respondent, and the respondents continued to persist in their demand for the money when Anita was saying in the house of the first respondent without being sent to the United States. Mr. V. S. Desai, Senior Advocate, appearing for the respondents invited our attention to the decision of a learned Single Judge of the Delhi High Court in Inder Sain and another v. The State(1) and also of another Single Judge of the Patna High Court in Kashi Prasad and others v. State of Bihar and others(2) and submitted that the demand for Rs. 50,000 alleged in the complaint would not constitute an offence under s. 4 of the Act as there is no allegation in tile complaint that the appellant consented to pay the amount and that without consent to the payment the sum of Rs. 50,000 alleged to have been demanded does not become dowry within the meaning of s. 2 of the Act which defines "dowry" as meaning "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 a 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 mahr in the
case of persons to whom the Muslim Personal Law
(shariat) applies." Section 2 contains two explanations with which we are not concerned in this case. In the Delhi High Court’s decision the question for consideration was what constituted "consideration" for marriage within the meaning of s. 2 of the Act, and Luthra, J, has observed:
"Thus the definition of the word
"consideration" leads to the conclusion that the
property or valuable security should be demanded
or given whether in the past, present or future
for bringing out solemnization of marriage. After
the marriage, giving a property or valuable
security by the parents of the bride cannot
constitute a "consideration" for the marriage
unless it was agreed at the time of or before the
marriage that such property or valuable security
would be given in future." The complaint i n that case did not spell out that the articles mentioned in the same were given after the marriage as a result of some agreement for the purpose of the marriage. The allegations in the complaint jndicated that those articles were given after the marriage with a view to have smooth sailing and continuance of good material relations. The learned Judge, therefore, held that the articles given in those circumstances did not constitute dowry within the meaning of s. 2 of the Act. We think that the learned judge is right in holding so, and that it is desirable that even such a demand should be prohibited and made punishable in law.
We are concerned in the present case with a complaint in which it has been alleged that the demand for the sum of Rs. 50,000 as dowry was made when the marriage ceremonies between the appellant’s daughter Anita and the second respondent were in progress, by both the respondents. under the pretext that it was required for the passage of the parties to the marriage to the United States with a threat that if the amount was not paid the marriage ceremonies would not be completed and that there was demand for payment of the amount even after the marriage ceremonies were over when Anita was staying in the house of the first respondent after the second respondent went away alone to the United States because the, passport and visa for Anita had not been obtained by then. The decision of even the Patna High Court relied upon by Mr. Desai relates only to what constitutes "consideration" for the marriage within the meaning of s 2 of the Act. On the other hand, Dr; Y.S. Chitale, Senior Advocate, appearing for the appellant invited our attention to a decision of a Division Bench of the Bombay High Court in Daulat Mansingh Aher v. C.R. Bansi and another(1) and submitted that a mere demand for money as dowry for completing the marriage ceremonies on pain of not completing the ceremonies if the money was not given is sufficient to constitute an offence under s. 4 of the Act even though there was no consent on the part of the appellant to comply with that demand. What appeared from the record of the case out of which the decision of the Bombay High Court arose, was that the accused-petitioner filed an application on 6.10.1978 raising a contention that the Court of the Metropolitan Magistrate, Dadar, Bombay had no jurisdiction to entertain and try the case because the accused and the complainant were residing ’outside the jurisdiction of that Court. A contention was also raised that the complaint was barred by limitation and was, therefore, liable to be dismissed. However, during the arguments in the High Court it was conceded by the learned counsel for the accused-petitioner that the complaint was filed within the period prescribed. Therefore, the only question that arose for consideration by the learned Judges of the Division Bench was the one relating to the jurisdiction of the Metropolitan Magistrate, Dadar, Bombay to entertain and inquire into the complaint. However, the learned Judges have observed in the judgment after extracting s. 4 of the Act that "what is made punishable under that provision is the demand itself, whether direct or indirect, from the parents of a bride or bridegroom". The learned Judges have further observed thus:-
"On the averments made in the complaint the
demand is made by the accused by writing a letter
from Wadala, Bombay-31. This demand was made
through his elder brother who is the son-in-law of
the complainant and resides at Agartala. From
Agartala the said letter of demand was forwarded
by the son-in-law of the complainant to Andheri,
Bombay where the complainant is residing.
Therefore, the demand by accused was not made at
Agartala. He had only used the good offices of
his elder brother to forward the letter. Instead
of writing a direct letter to complainant
demanding dowry, the demand was made through the
elder brother who is residing at Agartala. Still
the demand is by accused and is made from Wadala
at Bombay. The demand became complete when the
complainant received the letter at Andheri,
Bombay. Hence the dowry was demanded at Bombay.
The offence was partly committed at Wadala,
Bombay, from there the dowry was demanded. It was
also committed at Andheri, Bombay, where the
complainant received the demand letter. It is
further alleged by the complainant in the
complaint that the marriage of Alka which was
almost settled, could not take place due to the
demand of dowry made by the accused. This
consequential result or consequence of the demand
also took place at Bombay. Wadala is within the
local jurisdiction of Metropolitan Magistrate,
Dadar. Letter of demand was actually sent from
Wadala, Bombay. Hence, in any case it can safely
be said that offence as alleged is partly
committed at Wadala also. Though a contention was
raised before the trial court that neither accused
nor complainant are residing within the jurisdic-
tion of the Dadar Court, now it is an admitted
position that accused resides at Wadala.
Even if it is held that offence became
complete when complainant received letter at
Andheri, Bombay, still it will be triable by
Bombay Court. Whether it is Dadar or Andheri Court
will not make any difference. On tho other hand we
are told that Dadar Court is nearer to the
residence of accused. The point raised is too
technical and no prejudice will be caused to the
accused nor on that count it could be said that
trial is vitiated; or will result in failure of
justice. Hence there is no substance in this
contention".
It appears from a reading of this judgment that it was either not disputed before the learned Judges or that it was presumed that a mere demand for property as consideration for the marriage taking place would constitute an offence under s. 4 of the Act.
The Dowry Prohibition Act, 1961 is intended to prohibit the giving or taking of dowry, and Parliament has made every offence under the Act non-compoundable by s. 8 of the Act. By s. 5 it has been enacted that any agreement for the giving or taking of dowry shall be void. Section 3 makes abetment of the giving or taking of dowry an offence. No doubt, according to s. 2 of the Act "dowry" is any property or valuable security given or agreed to be given either directly or indirectly at or before or after the marriage as consideration for the marriage but does not include dowar or mahr in the case of person to whom the Muslim Personal Law (Shariat) appear applies. It would appear from s. 2 that consent to comply with the demand for any property as consideration for the marriage would alone make the property or valuable security given or agreed to be given directly or indirectly, "dowry" within the meaning of the Act. But having regard to the dominant object of the Act which is to stemp out the practice of demanding dowry in any shape or form either before or after the marriage, we are of the opinion that the entire definition of word "dowry" should not be imported into s. 4 which lays down that "if any person 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". According to Webester’s New World Dictionary, 1962 edn. bride means a woman who has just been married or it about to be married, and bridegroom means a man who has just been married or is about to be married. If we give this strict meaning of a bride or a bridegroom to the word bride or bridegroom used in s. 4 of the Act property or valuable security demanded and consented to be given prior to the time when the woman had become a bride or the man had become a bridegroom, may not be "dowry" within the meaning of the Act, We are of the opinion that having regard to the object of the Act a liberal construction has to be given to the word "dowry" used in s. 4 of the Act to mean that any property or valuable security which if consented to be given on the demand being made would become dowry within the meaning of s. 2 of the Act. We are also of the opinion that the object of s. 4 of the Act is to discourage the very demand for property or valuable security as consideration for a marriage between the parties thereto. Section 4 prohibits the demand for ’giving’ property or valuable security which demand, if satisfied, would constitute an offence under s. 3 read with s. 2 of the Act. There is no warrant for taking the view that the initial demand for giving of property or valuable security would not constitute an offence and that an offence would take place only when the demand was made again after the party on whom the demand was made agreed to comply with it. The learned Magistrate was, therefore, right in proceeding on the basis that the allegations in the complaint prima facie constitute an offence under s. 4 of the Act and issuing processes to the respondents. The High Court, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen. The present was not such a case. We find that the complaint had been filed after obtaining 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 as required by the proviso to s. 4 of the Act. Mr. P.G. Gokhale who appeared for the second respondent, State of Maharashtra, was not in a position to tell us about what the exact stand of the State Government in this appeal is as to whether it supports or opposes the contention of the appellant that the allegation made in the complaint constitutes an offence under s. 4 of the Act. For the reasons stated above, we allow the appeal and direct the learned Judicial Magistrate, First Class to take further proceedings on the complaint and dispose of the case according to law. P.B.R. Appeal allowed.