TMI Blog1991 (8) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... ter Chhaya and went to Bagasara, the same day but were unable to meet or see their daughter who had died. The petitioner suspected that their daughter's death was unnatural resulting from torture by her husband and his relatives. The petitioner filed a criminal complaint against Respondent Nos. 2 to 5, who are the husband, his parents and sister which was transferred to the Court of. Judicial Magistrate First Class at Dhari and registered as Criminal Case No. 382 of 1988 for an offence under section 498-A read with section 34 I.P.C. The petitioner filed an application for committing the case to the Court of Session for trial for .an offence punishable under section 304-B I.P.C. which was inserted in the Indian Penal Code by Act No. 43 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the appellant from contending that any other more stringent provision is attracted on the accusa- tion made. If that point is raised, the courts below will have to decide the same on merits on the basis of accusation made. It is in this background that the point raised by the appellant regarding applicability of section 304-B is decided by us. Section 304-B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society 'and continues unabated in spite of emanicipation of women and the women's liberation movement. This all prevading malady in our society has only a few lucky exception in spite of equal treatment and opportunity to boys and girls for education and caree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudicial effect on the bride. This experience has led to several other legislative measures in the continuing battle to combat this evil. The Criminal Law (Second Amendment) Act, 1983 (No. 45 of 1983) was an act further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. Section 498-A was inserted in the Indian Penal Code and corresponding amendments were made in the Code of Criminal Procedure which included section 198A therein and also inserted section 113A in the Indian Evidence Act 1872. Thereafter, the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) was enacted further to amend the Dowry Prohibition Act, 1961 and to make certain necessary changes in the Indian Penal Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have caused her death. Explanation-For the purposes of this sub-section, ,'dowry . shall have the same meaning as in section 2 of the Dowry Prohibition Act, 196 1 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for 11. In the Code of Criminal Procedure, 1973, in the First Schedule after the entries relating to section 304-A, the following entries shall be inserted, namely: Section Offence Punishment Cognizable Bailable or By what or non-bail- Court cognizable able tribale 1 2 3 4 5 6 304-B ' Dowry Imprison- Ditto Non- Court of death ment of not bailable ' Session. lesS' than seven years b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to fine. It is for the offence punishable under section 498-A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class. The offence punishable under section 304-B, known as. dowry death, was a new offence created with effect .from 19.11.1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence' than section 498-A. Section 304-B is a substantive provision creating a new offence and not merely a provision effecting a, change in procedure for trial of a pre-existing substantive offence. Acceptance of the appellant's contention would amount to holding that the respondents can be tried and punished for the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this direction. This contention is, therefore, rejected. In follows that the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in section 304-B of the Indian Penal Code which is a new offence created subsequent 'to the commission of the offence attributed to the respondents does not suffer from any infirmity. However, as earlier indicated, in case the accusation against the respondents discloses commission of any other more stringent pre-existing offence by the respondents than section 498-A of the Indian Penal Code, the appellant would be entitled to raise that question and the Court will then consider and decide it on that basis. No such argument having been advanced before us or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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