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TMI Blog1983 (2) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... r No. 3. Lajpat Rai Sehgal's sister, for a transistor radio, a fan and furniture etc. 3. On 9th May, 1980 Prem Kumari died of burns. Her father lodged a first information report at police station Moti Nagar on 13th May, 1980. It was F.I.R. No. 364/80, under section 306, Indian Penal Code. The case was investigated by the Criminal Investigation Department (Crimes). Delhi Police, Subsequently, it was transferred to the Central Bureau of Investigation; however, it was sent back to the Criminal Investigation department (Crimes). No challan under Section 306. Indian Penal Code, has been filed against the petitioners. 4. On 17th July, 1980, Sub-Inspector Pratap Singh applied, under Section 155(2), Criminal Procedure Code, for permission to investigate the non-cognizable offences under Sections 3 and 4 of the Dowry Prohibition Act, 1961 (To be referred to in short as the Act ). On the same date, the permission was granted by the Additional chief Metropolitan Magistrate, Tis Hazari, Delhi. 5. On 24th November, 1980 sanction to prosecute the petitioners was applied for. This was granted by the District Magistrate on 8th January, 1981. On 10th March, 1981 the complaint/ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence under this Act : (b) no Court shall take cognizance of any such offence except on a complaint made within one year from the date of the offence : (c) it shall be lawful for a Presidency Magistrate or a Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act. 11. Section 7(b) prescribes the period within which the complaint must be launched so that cognizance can be taken. This is one year. According to the petitioners, the offence is alleged to have been committed on 26th/27th January, 1980 and the challan was filed only on 10th March, 1981, i.e., obviously beyond the period of limitation, by about 42 days. 12. But the matter is not so simple and straightforward. In fact, though it is asserted that a demand was made on 26th/27th January, 1980, it is also asserted that demands were made during that period up to 4th March, 1980 and thereafter. But even apart from this, it is apparent from Section 4 of the Act, that cognizance cannot be taken by the court of any offence under this section without the previous sanction of the State Government or of such officer as the state Government may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigated, inquired into, tried and otherwise dealt with according to the provisions of the Code subject to any enactment in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Since the Act is silent, with regard to exclusion of time spent in obtaining sanction, the provisions of the Code come into play. As such, in the absence of any provision on this aspect in the Act, the time spent in obtaining sanction, must be excluded in terms of Section 470(3) of the Code. 17. It would, Therefore, appear to me, that the postulation of the petitioners, that the legislative intent of Section 7(2) of the act provides for an absolute period of limitation without permitting any exclusion of time for the period spent in obtaining sanction is without force. As there is no dispute, that if this time is excluded, the complaint is within time, I am of the opinion that the complaint is not time barred. 18. I now proceed to take up the next two points together, as they are interlinked. In this connection, it is necessary to examine the meaning of Complaint in Section 7(b) of the Act. Complaint has not been defined in the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. It is, Therefore, clear that in the facts and circumstances of the present case the complaint by the Investigating officer can be a complaint within the terms of Section 7(b) of the Act. 23. But is this complaint/challan a complaint within the meaning of Section 7(b) of the Act ? Though 'complaint' has not been defied in the Act the meaning of the word in common parlance is a grievance. The Shorter Oxford English Dictionary defines it as follows :- 1. The action of complaining; grieving 2. An expression of grief; a plaint, M.E. 3. Utterance of grievance a state of injustice suffered M.E. 4. Law. A statement of injury or grievance laid before a court (prop. a Court of Equity) for purposes of prosecution and redress : an accusation or charge; in U.S. the plaintiff's case in a civil action M.E. .......... From this it is apparent that a complaint is an assertion of injustice and/or injury. 24. Under Section 2(d) of the Code, 'Complaint' is defined and means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged that on 13th May, 1980. Mr. V. D. Khanna, resident of 253, Shiv Nagar, New delhi, lodged a First Information Report No. 364 dated 13th May, 1980 under Section 306, Indian Penal Code at Police Station Moti Nagar and asserted therein that his daughter Prem was married to Lajpat Rai Sehgal on 3rd March, 1980. That both before and after the marriage, Lajpat Rai Sehgal had demanded dowry and the demands could be met only partially. Further demands of television, refrigerator etc. which were made, could not be complied with and as a result his daughter was harassed. She died of burns on 9th May, 1980. She was a dowry victim. A prima facie offence under Secs. 3/4 of the Act was made out which is non-cognizable. 30. On 17th July, 1980 permission was granted by the order of the Additional Chief Metropolitan Magistrate, Delhi, under Section 155(2) of the Code to investigate the non-cognizable offences under Sections 3/4 of the Act. Once the police officer got this permission he could investigate the non-cognizable case. The police, then, followed the procedure of investigation as provided in the Code. As soon as the investigation was completed, which was to be completed without unn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed to escape and must be brought to book. The Explanation does not speak of authorised or unauthorised investigations. All it refers to, is a police report made after investigation. After an investigation there is no doubt that the police officer has to submit a report. This report as in the present case must be deemed to be the complaint and the police officer, the complainant. 36. The Act contains no provisions as to how a case is to be investigated, inquired into or dealt with. In the absence of any specific provisions specific provisions, as already noticed, the Code must apply in view of Section 4(2) of the Code. The exclusion of the Code is only to the extent specifically provided. Section 7 specifically provides, that no court inferior to that of a Presidency Magistrate or a Magistrate, 1st Class shall try any offence and it will be lawful for them to pass any sentence authorised by the Act on a person convicted under the Act. This is the only restriction that has been specified in the Act apart from the question of limitation as mentioned in S. 7(b). 37. The Act consists of only ten sections. Section 1 pertains to the title, extent of territorial jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice of non-cognizable offences, resulting in a report must be deemed to be a complaint as distinct from being a complaint. Further, as provided in S. 460 of the Code, most procedural laws with regard to the trial are not mandatory. The irregularities mentioned therein do not vitiate the proceedings. The relevant part of section 460 provides, inter alia, if any Magistrate not empowered by law to do any of the following things, namely :- ............................. (b) to order under Section 155, the police to investigate an offence : ............................. erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. 43. The purpose of procedure is to further the ends of justice. The present tendency or the swing of the pendulum is away from the technicalities, so that, a result is brought about which is fair to the accused, fair to the State and fair to the vast masses of people . A clear distinction has to be kept in mind between irregularities and illegalities. 44. As such, it appears to me that the report is a complaint within the meaning of section 7(b) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Personal Law( Shariat )applies ............ 50. It was, Therefore, urged that the giving or agreement to give either directly or indirectly must be as consideration for the marriage. It must be an agreement or understanding as understood in terms of Section 2(d) of the Contract Act. According to counsel the complaint does not make out such a case, especially in view of the decision of the Bombay High Court in Shankarrao Abasaheb Pawar v. L. V. Jadhav, Criminal Appeal No. 283 of 1981 dated 22nd December, 1981 : (Reported in 1983 Cri LJ 269). 51. In that case the Bombay High Court has held that in order to bring a case under Section 4 of the Act there must be a demand of dowry. Dowry as defined in Section 2 means any property agreed to be given. Such a demand must be of a property agreed to be given as consideration for the marriage of the parties. A demand by one party from the other to pay a certain amount is not a dowry. 52. The facts of that case were, Anita, a science graduate, got engaged to Pradeep, an engineering double graduate, working in the United States. The engagement took place on 12th June, 1978 at Pune. The marriage was performed also at Pune on 19th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here does appear to be some inconsistency between the provisions of Sections 2 and 4 of the Act, in the facts of the present case it does not appear to be relevant, as the complaint clearly indicates that property or valuable security was demanded by the petitioners and Mr. V. D. Khanna, father of Prem Kumari did comply partially with these demands. 56. As stated in the complaint, demands were made by the petitioners with regard to money and clothes on 25th January, 1980. A list setting out the details was made over. Mr. V. D. Khanna supplied the clothes etc., as also, a part of the money on the date of the engagement i.e. 26th January, 1980. Subsequently, on 27th January 1980 further demands were made for television, refrigerator, double bed, a sofa, two-in-one, utensils, clothes etc. to be given in consideration for the marriage. Mr. V. D. Khanna, also tried to meet these demands. So obviously, there was some agreement in the matter. But, as the dowry demanded had been only partially provided, the petitioners continued to make demands, even subsequent to the marriage, on 4th March, 1980. So in the facts of the present case, the abovementioned decision of the Bombay High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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