Jamaluddin Ansari Azad vs State & Another
2013 Latest Caselaw 3263 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(CRL) 673 OF 2011

                                     Date of Decision: 29th July, 2013

JAMALUDDIN ANSARI AZAD                                 ..... Petitioner
                Through:              Mr. S.C.Malhotra,, Advocate
                                      with the petitioner in person.

                          versus

STATE & ANOTHER                                   ..... Respondents
                          Through:    Mr. Rajat Agnihotri, Adv for
                                      Mr. Rajesh Mahajan, ASC for
                                      State with SI Bal Singh, P.S.
                                      Mandawali.
                                      Mr. Himal Akhtar, Adv for R-
                                      2.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. The petitioner, vide instant writ petition under Article 226 of

the Constitution of India read with Section 482 of the Code of

Criminal Procedure is seeking direction for setting aside the order

dated 29.10.2010 passed by learned Additional Sessions Judge in

Crl.Rev.71/2010 and for quashing the FIR No.596/2010 P.S.

Mandawali, Fazalpur u/s 3 of the Dowry Prohibition Act.

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

are that daughter of the petitioner Noor Jahan filed a complaint of

dowry demand and harassment against her husband (respondent no.2)

and other in-laws with CAW Cell and on the basis of said complaint,

after preliminary enquiry, FIR No.176/09 u/s 498A/406/34 IPC, P.S.

Mandawali was registered against respondent no.2 and others.

3. Daughter of the petitioner, Noor Jahan in her above referred

complaint alleged that at the time of marriage, her parents and near

relatives had presented huge dowry articles consisting of gold and

silver ornaments of about 3,50,000/- along with costly clothes and

cash worth Rs. 5 lakhs in two instalments i.e 2 lakhs at the time of

ring ceremony and 3 lakhs at the time of marriage as demanded by

her father-in-law and mother-in-law for purchasing the remaining

dowry articles as per their own choice However, her husband and in-

laws started passing sarcastic remarks regarding dowry as they were

expecting a lot more and that they have been let down in the eyes of

their relatives/friends. Besides that there were various other

allegations regarding mal-nutrition and torture to her by her in-laws.

4. Respondent no.2 Mohd. Khalique, as a counter blast to the

aforesaid FIR filed a petition u/s 156(3) Cr.P.C seeking direction for

registration of FIR u/s 3 of The Dowry Prohibition Act, 1961 against

the petitioner and other family members. Vide order dated

17.08.2010, the learned M.M directed registration of FIR against the

petitioner and his family members as also against respondent no.2 and

his family members.

5. Thereafter, respondent no.2 preferred Crl. Revision Petition

and the order was modified by learned Additional Sessions Judge to

the effect that the case be registered only against the petitioner and his

family members u/s 3 of Dowry Prohibition Act, except Noor Jahan,

the bride.

6. Respondent no.2 in his petition u/s 156(3) Cr.P.C contended

that Noor Jahan in her complaint to CAW Cell which formed basis

for registration of FIR No.176/09 u/s 498A/406/34 IPC, P.S.

Mandawali as well as in her petition u/s 125 Cr.P.C and another

petition u/s 12 of Protection of Women from Domestic Violence Act

made categorical allegations that demand of dowry was a pre-

condition to marriage by the husband and in-laws and pursuant to

that, the dowry was given, which, prima facie amounts to admission

of commission of an offence u/s 3 of The Dowry Prohibition Act,

1961 by the petitioner and his family members.

7. It was submitted by learned counsel for the petitioner that

registration of FIR No.596/2010 pursuant to the petition u/s 156(3)

Cr.P.C moved by respondent no.2, which obviously is a counter blast

to the FIR registered on the complaint of the daughter of the

petitioner, is a gross abuse of process of law. Learned counsel for the

petitioner referred to the objects and reasons of The Dowry

Prohibition Act, 1961 wherein it was stated that the ancient marriage

rites in the Vedic period are associated with Kanyadan. It is laid

down in Dharamshastara that the meritorious act of Kanyadan is not

complete till the bridegroom was given a dakshina. So when a bride

is given over to the bridegroom, he has to be given something in cash

or kind which constitute varadakshina. Thus Kanyadan became

associated with varadakshina i.e the cash or gifts in kind by the

parents or guardian of the bride to the bridegroom. The

varadakshina was offered out of affection and did not constitute any

kind of compulsion or consideration for the marriage. Some of the

articles were given out of love and affection and the petitioner has

another daughter, therefore, under compulsion certain articles were

given. Petitioner in fact is an aggrieved party who is entitled to

protection of Section 7(3) of the Act. Moreover, offence is not

complete unless giving and taking is proved but although the learned

M.M had directed registration of FIR against both the parties, the

order was modified for proceeding against the petitioner only.

Moreover in the complaint u/s 156(3) Cr.P.C, respondent no.2 is not

admitting to taking any dowry, as such, even otherwise offence is not

complete. As such, it was submitted that the impugned order be set

aside and the FIR No.596/2010 against the petitioner and his family

members be quashed. Reliance was placed on Pooja Saxena v. State

& Anr, 2010 (4) JCC 2780.

8. Learned counsel for respondent no.2, on the other hand, has

argued in favour of the impugned order dated 29.10.2010 of learned

Additional Sessions Judge, inasmuch, as per Section 3 of Dowry

Prohibition Act, 1961 giving of dowry is also prohibited, and is a

punishable offence. It was submitted that the order was passed not

merely relying upon the judgment of this Court in the case titled as

Neera Singh & Ors. v. State, 138 (2007) DLT 152 but the entire facts

and circumstances of the case were considered. The learned

Additional Sessions Judge has already granted benefit of Section 7(3)

to the complainant as such there is no infirmity in the order and there

are no grounds for quashing of the FIR. It was however, not disputed

that against the judgment in Pooja Saxena vs. State and Another,

SLP was preferred, which has been dismissed.

9. 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 adequate and special reasons to be recorded in the 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 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).

(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."

10. In the instant case, it is obvious that respondent no.2 has filed

petition u/s 156(3) Cr.P.C only on the basis of allegations made by

Noor Jahan in her complaint made to CAW Cell which formed basis

of registration of FIR No.176/2009 u/s 498/406/34 IPC against

respondent no.2 and others as well as in her petition u/s 125 of the

Code of Criminal Procedure and Domestic Violence Act. Thus, it is

clear that FIR No.596/2010 registered against the present petitioner

u/s 3 of the Dowry Prohibition Act, 1961 is based upon the statements

made by the daughter of the petitioner in her complaint to CAW Cell

and the other petitions.

11. In Pooja Saxena (supra) it was observed that the observations

made in Neera Singh's case were obiter and does not constitute a

binding precedent for the reason that the provision of Dowry

Prohibition Act, 1961 were not the subject matter of the dispute

before the Court in the petition u/s 482 Cr.P.C in that case. Moreover

in that case, the Court has not taken into account the protection given

to a victim of offence of dowry demand as provided u/s 7(3) of The

Dowry Prohibition Act, 1961. In Pooja Saxena (supra), the

allegations in the complaint were regarding demand of dowry by the

father of respondent no.2 at the time of engagement ceremony of the

petitioner, failing which he would call off the marriage. It was

observed that the petitioner and her parents were confronted with the

unenviable situation either to concede to the demand or face 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 circumstances. As such,

Section 7(3) comes to the rescue of the petitioner and she could not be

subjected to prosecution for the offence u/s 3 of the Dowry

Prohibition Act, 1961.

12. A perusal of the complaint u/s 156(3) Cr.P.C filed by

respondent no.2 goes to show that he was invoking Section 3 of the

Dowry Prohibition Act only on the basis of allegations made in the

complaint by Noor Jahan whereas in para 7 of the complaint he did

not admit to the contents of the FIR. Merely on the basis of

allegations which were not admitted by respondent no.2, the

petitioner could not have been booked for offence u/s 3 of the Dowry

Prohibition Act. Moreover as held in Pooja Saxena(supra) and Ram

Gopal Shah v. State of Jharkhand, II 2009 DMC 848, the petitioner

being father of the complainant is an aggrieved person from whom

the dowry was being demanded. Such aggrieved person is protected

u/s 7(3) from prosecution under the Act.

13. In view of the above, I find it difficult to sustain the impugned

order dated 29.10.2010 of learned Additional Sessions Judge, vide

which he directed registration of FIR against the petitioner ignoring

the protection extended to him u/s 7(3) of The Dowry Prohibition

Act, 1961. Accordingly, the impugned order of learned Additional

Sessions Judge and the FIR registered in furtherance of the said order

are hereby quashed. The petition stands disposed of.

SUNITA GUPTA (JUDGE) JULY 29, 2013 as