Bombay High Court
The State Of Maharashtra, Through ... vs Kishor Babarao Milmile And Others on 30 March, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.33/2016
The State of Maharashtra,
through Police Officer,
Police Station Wani,
Distt. Yavatmal. ..Petitioner.
..Versus..
1. Kishor Babarao Milmile,
aged 39 Yrs.
2. Sau. Venutai Milmile,
aged 54 Yrs.
3. Prashant @ Pintu Babarao Milmile,
aged 35 Yrs.
4. Babarao Dadaji Milmile,
aged 68 Yrs.
All the above 1 to 4 resident of
Aandnagar, Near Bal Vidya Shalaya
Wani, Tq. Wani, Distt. Yavatmal.
5. Sau. Pratibha w/o Rambhau Roge,
aged 42 Yrs., R/o Shrirampur,
House No.5, Behind G.P. School,
Tq. Pusad, Distt. Yavatmal. ..Respondents.
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Shri N.B. Jawade, A.P.P. for the petitioner.
Shri R.D. Bhuibhar, advocate for the respondents
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CORAM : Z.A. HAQ, J.
DATE : 30.3.2016
ORAL JUDGMENT
1. Heard Shri N.B. Jawade, A.P.P. for the petitioner and Shri R.D. Bhuibhar,
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advocate for the respondents.
2. Rule. Rule made returnable forthwith.
3. The petitioner - State of Maharashtra has challenged the order passed by
the Additional Sessions Judge rejecting the application (Exh. No.108) praying for
framing of additional charge under Section 304-B of the Indian Penal Code and
under Sections 3 and 4 of the Dowry Prohibition Act.
According to the prosecution, the marriage between respondent
no.1 - Kishor and deceased Shubhangi was solemnized on 26 th May, 2009 and the
respondents had demanded Rs.5,50,000/- for performing marriage. It is alleged
that after the solemnization of marriage, the respondents (accused) continued their
demand of dowry and treated deceased Shubhangi with cruelty. It is alleged that
the complainant - father of deceased Shubhangi, had fulfilled the demand of
respondents and had given Rs.1,00,000/-, however, the respondents demanded
money from the father of deceased Shubhangi, repeatedly. It is alleged that due to
constant demand of money by the respondents, physical harassment, mental torture
and cruelty, deceased Shubhangi committed suicide on 19 th September, 2010. On
these accusations, the charge-sheet was filed against the respondents under
Section 498-A, 306 and 34 of the Indian Penal Code read with Sections 3 and 4 of
Dowry Prohibition Act. The charge-sheet was filed before the Judicial Magistrate
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First Class who committed the matter to Sessions Court. The Sessions Court
framed the charge for the offence punishable under Section 498-A, 306 and 34 of
the Indian Penal Code.
The trial proceeded and the prosecution examined ten witnesses. The
statement of accused under Section 313 of Code of Criminal Procedure is recorded
and at the stage of arguments, the petitioner filed the application (Exh. No.108)
praying that additional charge for the offence punishable under Section 304-B of the
Indian Penal Code and for the offence punishable under Sections 3 and 4 of Dowry
Prohibition Act be framed. This application is rejected by the learned Additional
Sessions Judge by the impugned order.
4. Shri Jawade, learned A.P.P. has attacked the impugned order urging that the
learned Additional Sessions Judge has committed an error in giving restrictive
meaning to the provisions of Section 304-B of the Indian Penal Code by
misinterpreting the provisions of Section 2 of Dowry Prohibition Act. Learned
A.P.P. has submitted that the point is settled by the Hon'ble Supreme Court in the
judgment given in the case of Rajinder Singh V/s. State of Punjab reported in (2015)
6 SCC 477 in which it is laid down that for the purposes of Section 2 of Dowry
Prohibition Act giving or agreeing to give any property or valuable security at the
marriage, before the marriage or after the marriage will be covered and Section 2 of
the Dowry Prohibition Act and it takes within its sweep the giving or receiving any
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property or valuable security many years after the solemnization of marriage. It is
submitted that the impugned order passed on the wrong and restrictive
interpretation of Section 304-B of the Indian Penal Code and Section 2 of Dowry
Prohibition Act, 1961 is unsustainable and has to be set aside. It is prayed that the
application (Exh. No.108) filed by the petitioner has to be allowed and it be directed
that additional charge for the offence punishable under Section 304-B of the Indian
Penal Code and Sections 3 and 4 of Dowry Prohibition Act, 1961 be framed.
5. Shri Bhuibhar, learned advocate for the respondents has submitted that the
impugned order is proper and in consonance with the established principles of
interpretation of penal Statutes which provide that the penal Statute should be
interpreted directly and cannot be given wider meaning. However, the learned
advocate for the respondents has not been able to counter the submissions made
by the learned advocate for the petitioner relying on the judgment given in the case
of Rajinder Singh V/s. State of Punjab (cited supra).
6. In the above referred judgment, the relevant point is dealt in paragraph
nos.7, 8 and 9 of the judgment as follows:
"7. The primary ingredient to attract the offence under Section
304-B IPC is that the death of a woman must be a "dowry death".
"Dowry" is defined by Section 2 of the Dowry Prohibition Act, 1961,
which reads as follows:
"2. Definition of 'dowry'.- In this Act, 'dowry' means any property or
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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 any
time after the marriage in connection with 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.--
Explanation II. - The expression 'valuable security' has the same
meaning as in Section 30 of the Indian Penal Code (45 of 1860)."
8. A perusal of Section 2 shows that this definition can be broken into six
distinct parts.
1) Dowry must first consist of any property or valuable security -
the word "any" is a word of width and would, therefore, include within it
property and valuable security of any kind whatsoever.
2) Such property or security can be given or even agreed to be given. The
actual giving of such property or security is, therefore, not necessary.
3) Such property or security can be given or agreed to be given either directly
or indirectly.
4) Such giving or agreeing to give can again be not only by one party to a
marriage to the other but also by the parents of either party or by any other
person to either party to the marriage or to any other person. It will be noticed
that this clause again widens the reach of the Act insofar as those guilty of
committing the offence of giving or receiving dowry is concerned.
5) Such giving or agreeing to give can be at any time. It can be at, before, or
at any time after the marriage. Thus, it can be many years after a marriage is
solemnised.
6) Such giving or receiving must be in connection with the marriage of the
parties. Obviously, the expression "in connection with" would in the context of
the social evil sought to be tackled by the Dowry Prohibition Act mean "in
relation with" or "relating to".
9. The ingredients of the offence under Section 304-B have been stated and
restated in many judgments. There are four such ingredients and they are
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said to be:
(a) death of a woman must have been caused by any burns or bodily
injury or her death must have occurred otherwise than under normal
circumstances;
(b) such death must have occurred within seven years of her marriage;
(c) soon before her death, she must have been subjected to cruelty or
harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment must be in connection with the demand
for dowry."
7. Considering the proposition laid down by the Hon'ble Supreme Court that the
giving or agreeing to give any property or valuable security by one party to the
marriage to the other party or by the parents of either party to the marriage has to be
construed in wider sense and that the giving or agreeing to give property or valuable
security after the solemnization of marriage and even after many years of
solemnization of marriage will be covered under the definition of section 2 of Dowry
Prohibition Act, the reasons given by the learned Additional Sessions Judge for
rejecting the application (Exh. No.108) are unsustainable and consequently, the
impugned order cannot withstand the scrutiny of law.
Hence, the following order:
(i) The impugned order is set aside.
(ii) The application (Exh. No.108) filed by the petitioner is allowed.
(iii) The learned Additional Sessions Judge is directed to frame additional charge
under Section 304-B of the Indian Penal Code and under Section 3 and 4 of Dowry
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Prohibition Act, 1961.
(iv) Rule is made absolute in the above terms.
(v) In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
