Pooja Saxena vs State & Another
2010 Latest Caselaw 4829 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                               Judgment reserved on: September 30, 2010
                               Judgment delivered on: October  20, 2010


+       W.P.(CRL.) NO. 501/2010 & CRL.M.A. 3921/2010(stay)

        POOJA SAXENA                              ....PETITIONER
                Through:           Mr.Vijay   Aggarwal    with   Mr.Rakesh
                                   Mukhija    and     Mr.Gurpreet    Singh,
                                   Advocates.

                            Versus

        STATE & ANOTHER                  .....RESPONDENTS
                 Through: Ms. Meera Bhatia, ASC for the State with
                          Mr.Roshan Kumar, Advocate with I.O. S.I.
                          Mr.Prabhanshu, P.S. Roop Nagar.

                                   Mr.Abhishek Gupta, Advocate for
                                   R.2/Sameer Saxena.

         CORAM:
         HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.      Whether Reporters of local papers
        may be allowed to see the judgment?

2.      To be referred to the Reporter or not ?
3.      Whether the judgment should be
        reported in Digest ?



AJIT BHARIHOKE, J.

1. Pooja Saxena, the petitioner herein, vide instant writ petition under Articles

226 and 227 of the Constitution of India read with Section 482 of the Code of

Criminal Procedure is seeking direction for quashing of the order of learned

ACMM dated 10.03.2010 as well as FIR No.59/2010 dated 22.03.2010 registered

at P.S. Roop Nagar pursuant to the aforesaid order of learned ACMM.

2. Briefly put, facts relevant for the disposal of this petition are that the

petitioner Pooja Saxena filed a complaint of dowry demand and harassment

against her husband (respondent No.2) with CAW Cell and on the basis of the

said complaint, after preliminary inquiry and on the recommendation of the senior

police officer, an FIR No.232/2009 under Sections 498A/406/34 IPC was

registered against respondent No.2 Sameer Saxena and others at P.S. Roop

Nagar.

3. Petitioner Pooja Saxena in her above referred complaint alleged that at the

time of her marriage, her parents had given sufficient amount of cash and

valuable articles including jewellery, Swift car, Sony TV, washing machine,

double bed and gift items to respondent No.2 and his relatives. It was also

alleged in the complaint that at the time of her engagement ceremony on

20.08.2006, father of respondent No.2 raised a demand for a Sony TV besides

cash/gifts for the relatives as also gold ornaments, diamond jewellery and clothes

etc. for the sister-in-law of the respondent as also her two daughters. Father of

the petitioner fulfilled the said demands but the father-in-law of the petitioner was

not satisfied and he raised a demand for a car of a prestigious brand or in the

alternative asked for a deposit of `5 lakhs as a corpus to enable them to

purchase a car. He suggested that the car should be purchased in the name of

the petitioner, failing which he would not go on with the marriage which may

cause harassment to the parents of the petitioner and create difficulty in finding a

match for the marriage of the younger sister of the petitioner.

4. Respondent No.2 Sameer Saxena, as a counterblast to the aforesaid FIR,

filed a petition under Section 156(3) Cr.P.C. seeking direction for registration of

FIR under Section 3 of the Dowry Prohibition Act,1961 against the petitioner and

learned ACMM, vide order dated 10.03.2010 directed the SHO, P.S. Roop Nagar

to register an FIR on the basis of the allegations made in the petition under

Section 156(3) Cr.P.C. and investigate the matter in accordance with law.

5. Respondent No.2 in his petition under Section 156(3) Cr.P.C. contended

that the petitioner in her complaint to CAW Cell, which formed basis for

registration of FIR No.232/2009 under Sections 498A/406/34 IPC P.S. Roop

Nagar, as well as in her petition Section 24 of the Hindu Marriage Act and in her

petition under Section 12 of the Domestic Violence Act, 2005 made categoric

allegations that demand of dowry as a precondition to marriage was made by the

husband and in-laws of the petitioner and pursuant to that demand huge dowry

was given which, prima facie, amounts to admission of commission of an offence

under Section 3 of the Dowry Prohibition Act, 1961 by the petitioner and her

parents.

6. Learned counsel for the petitioner has contended that registration of the

aforesaid FIR No.59/2010 pursuant to the petition under Section 156(3) Cr.P.C.

moved by respondent No.2, which obviously is a counterblast to the FIR

registered on the complaint of the petitioner, is a gross abuse of process of law.

Learned counsel for the petitioner referred to Section 7(3) of the Dowry

Prohibition Act and contended that aforesaid provision of the Act provides for the

protection from prosecution to the person aggrieved by the offence under the

Dowry Prohibition Act, 1961, as such the learned ACMM ought not to have

directed the registration of the FIR. No.59/2010. Thus, he has strongly urged for

the quashing of the FIR No.59/2010 registered pursuant to the impugned order

dated 10.03.2010 of the learned ACMM.

7. Learned counsel for respondent No.2, on the other hand, has argued in

favour of the impugned order of the learned ACMM dated 10.03.2010 and

submitted that learned ACMM has rightly ordered registration of FIR No.59/2010

on the basis of allegations in the petition of the respondent under Section 156(3)

Cr.P.C. for the reason that as per Section 3 of the Dowry Prohibition Act, 1961,

giving of dowry is also prohibited and is a punishable offence. Learned counsel

for the respondent, in support of this contention has relied upon the judgment of

this Court in the matter of Neera Singh Vs. State (Govt. of NCT of Delhi) &

Ors, 138 (2007), Delhi Law Times 152.

8. In order to properly appreciate the submissions made by the respective

parties, it would be useful to have a look upon Section 3 as well as Section 7(3)

of the Dowry Prohibition Act, 1961, which are reproduced thus:

"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 [(Note: Subs. by Act 43 of 1986, Sec.3) five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:]

Provided that the Court may, for a adequate and special reasons to be recorded in he judgment, impose a sentence of imprisonment of a term of less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years.]

(2) [(Note: Ins. by Act 63 of 1984, sec.3) Nothing is 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).

(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."

"7. Cognizance of offences -

...................

(3) Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act."

9. No doubt, as per Section 3 of the Dowry Prohibition Act, giving or abetting

to give dowry is a punishable offence, but the petitioner does have protection of

Section 7(3) of the Act. Section 7(3) provides that notwithstanding anything

contained in any law for the time being in force, a statement made by the person

aggrieved by the offence under the Act shall not subject him to prosecution under

this Act. In the instant case, it is obvious that respondent No.2 has filed his

petition under Section 156(3) Cr.P.C. only on the basis of the allegations made

by the petitioner Pooja Saxena in her complaint made to CAW Cell which formed

basis for the registration of FIR No.232/2009 under Section 498A/406/34 IPC

against respondent No.2 and others as well as in her petition under Hindu

Marriage Act and Domestic Violence Act. Thus, it is clear that FIR No.59/2010

registered against the petitioner under Section 3 of the Dowry Prohibition Act,

1961 is based upon the statements made by the petitioner in her complaint to

CAW Cell and above noted petitions. Therefore, she is entitled to the protection

of Section 7(3) of the Act, being the victim of demand of dowry.

10. In the case of Neera Singh (supra) relied upon by the respondent No.2,

the order of Additional Sessions Judge upholding the order of discharge of

accused persons passed by the Magistrate in a case under Section 498A/406

IPC was under challenge and the petitioner had sought quashing of said order.

While deciding said issue, this court, taking note of Section 3 of Dowry Prohibition

Act 1961 and the rules framed thereunder made following observations:-

"3. A perusal of the complaint would show that as per allegations dowry demand was made even before marriage i.e. at the time of engagement and an AC was demanded from her father by her in-laws and her father had assured that AC would be given at the time of marriage. However, she told her father You have given car and AC at the demand of in laws, what will happen if they demand a flat tomorrow?. Despite her this conversation with her father and despite her knowing that dowry demand had already been made, she married in the same family irrespective of the fact that she was well-educated lady and was an engineer and her brother was in police. In fact, these kinds of allegations made after breakdown of the marriage show the mentality of the complainant. I consider where these kinds of allegations are made, the police should simultaneously register a case under Dowry Prohibition Act (in short the 'Act') against the parents of the complainant as well, who married their daughter despite demand of dowry. Section 3 of the Act prohibits giving and taking of dowry. If a woman of grown up age and well educated gets married to a person

despite dowry demand, she and her family becomes accomplice in the crime under Dowry Prohibition Act.

.............

5. The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.

11. The above observation of this Court obviously is an obiter and does not

constitute a binding precedent for the reason that the provisions of the Dowry

Prohibition Act 1961 were not the subject-matter of the dispute before the court in

the petition under Section 482 Cr.P.C. in Neera Singh's case. Moreover, in the

aforesaid judgment, the Court has not taken into account the protection given to a

victim of offence of dowry demand as provided under Section 7(3) of the Dowry

Prohibition Act 1961. Thus, in my view the above referred judgment is of no avail

to respondent No.2. Further, on perusal of FIR No.232/2009, it transpires that as

per the allegations in the complaint made by the petitioner, the demand for dowry

was made by the father of respondent No.2 at the time of engagement ceremony

of the petitioner when he allegedly asked the father of the petitioner to concede to

his demand for dowry, failing which he would call off the marriage. From the

aforesaid facts, it is obvious that the petitioner and her parents were confronted

with the unenviable situation either to concede to the demand or face the loss of

honour of their family in the society, and if under that fear, the petitioner and her

parents conceded to the demand for dowry, they cannot be faulted as they were

victims of the circumstances. Given the aforesaid facts, Section 7(3) comes to

the rescue of the petitioner and in terms of the aforesaid provision, she cannot be

subjected to prosecution for the offence under Section 3 of the Dowry Prohibition

Act, 1961.

12. In view of the above, I find it difficult to sustain the impugned order dated

10.03.2010 of learned ACMM vide which he has directed registration of FIR

against the petitioner herein ignoring the protection extended to the petitioner

under Section 7(3) of the Dowry Prohibition Act 1961. Accordingly, the impugned

order of learned ACMM and the FIR registered in furtherance of said order are

hereby quashed.

13. The petition stands disposed of.

(AJIT BHARIHOKE) JUDGE OCTOBER 20, 2010 pst/ks