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1991 (8) TMI 336 - SUPREME COURT

1991 (8) TMI 336 - SUPREME COURT - 1991 AIR 2173, 1991 (3) SCR 812, 1991 (4) SCC 298, 1991 (3) JT 542, 1991 (2) SCALE 410 - Criminal Appeal No. 533 of 1991 - Dated:- 28-8-1991 - VERMA, JAGDISH SARAN AND SHARMA, L.M. JJ. H.S. Zaveri for the Appellant. Dushayant Dave, Ashish Verma and Anip Sachthey. for the Respondents. JUDGMENT: The Judgment of the Court was delivered by VERMA, J. Petitioner's daughter Chhaya Was married to Respondent No. 2 Satish on5. 12. 1984 and they started living togethe .....

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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 of 1986 w.e.f. 19.11.1986. On 29.11.1988, the Learned Magistrate dismissed the petitioner's applic .....

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rt has dismissed that application. Hence this special leave petition. Leave is granted. The point arising for our decision is the applicability of section 304-B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of section 304-B in the Indian Penal Code. This is the only ground on which the. appellant claims trial of the case in the Court of Session. . . The reason given by the High Court to support its view is that the offence wa .....

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. 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 m .....

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ibition and punishment are some steps in that direction. The Dowry Prohibition Act, 1961 was enacted for this purpose. The Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under: "Legislation cannot by itself normally solve deep-rooted social problems, One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that .....

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of dowry meted out to the unfortunate bride takes different forms to avoid any apparent causal connection between the demand of dowry and its 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 t .....

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owry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) stated in the Statement of Objects and Reasons of the Bill are as under: "(e) Offences under the Act are proposed to be made non-bailable. "(g) A new offence of "dowry death" is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872 have also been proposed." Accordingly by section 7 of the Amendment Act, .....

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of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harass- ment by her husband or any relative of her husband for Or in connection with, any demand for dowry such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation-For the purposes of this sub-section, ,'d .....

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ail- 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 but which may extend to imprisonment for life. ' "12. In the Indian Evidence Act, 1872, after section 113-A, the following section shall be inserted, namely:- "11.3-B. Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before .....

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enal Code is a new offence inserted in the Indian Penal Code with effect from 19.11.1986 when Act No. 43 of 1986 came into force. The offence under section 304-B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session. The corresponding amendments made in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the offence. Section 498; A inserted in the Indian Penal Code by the Criminal Law .....

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h 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 offence of dowry death provided in section 304-B of the In .....

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