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PETITIONER: SONI DEVRAJBHAI BABUBHAI

       Vs.

RESPONDENT: STATE OF GUJARAT AND ORS.

DATE OF JUDGMENT28/08/1991

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SHARMA, L.M. (J)

CITATION:  1991 AIR 2173            1991 SCR  (3) 812  1991 SCC  (4) 298        JT 1991 (3)   542  1991 SCALE  (2)410

ACT: Indian  Penal Code, 1860: Section 304-B (As inserted by  Act 43 of 1986)--Scope and object of--Dowry death-Death occuring prior  to  insertion of Section 304-B   Section  304-B  held prospective  and  consequently inapplicable--It  contains  a substantive  provision creating a new offence and, does  not merely effect a procedural change for trial of  pre-existing substantive offence.     Indian Evidence Act, 1872: Section 113-B. Presumption as to  dowry death--Section 113-B contains rule of evidence  to prove the offence of dowry death. Dowry Prohibition Act, 1961: Purpose of.     Constitution  of India, 1950: Article  20(1)  Protection against  conviction for a new offence created subsequent  to the commission of offence.

HEADNOTE:     Appellant’s daughter was married to respondent No. 2  on 15.12.1984.  She  died on 13.8.1986. The appellant  filed  a criminal  comp-. laint against the respondents  viz.  daugh- ter’s husband and his relatives for an offence under section 498-A,  triable by a Magistrate of First Class,  ’read  with section 34 of the Indian Penal Code, 1860 alleging that  his daughter’s death was unnatural resulting from torture by her husband and his relatives. By Act No. 43 of 1986, the Indian Penal  Code was amended and Section 304-B, offence of  dowry death, was inserted in the Code w.e.f. 19.11.1986. Since the newly  inserted  offence of dowry death was  triable.  by  a Court of Session, the appellant flied an application  before the  Magistrate  for  committing the case  to  the  Caurt-of Session  for  trial  of offence under  section  304-B.  ’The Magistrate  dismissed  his application by holding  that  the amendment  being  prospective was inapplicable’to  the  case because  the  death  had occurred prior  to  the  amendment. Thereafter  the appellant filed an application in  the  High Court  for a direction to Commit the case of dowry death  to the  Court  of Session. The High Court  also  dismissed  his application by holding that since the offence was  committed prior to the date of insertion of section 813 304-B, the section was not applicable to the case. In appeal

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to  this Court on the question whether section 304-B of  the Indian  Penal Code was applicable to a case of  dowry  death where  the  death  has occurred prior to  the  insertion  of Section  304-B, it was contended on behalf of the  appellant that section 304-B of the Indian Penal Code does not  create a new offence and contains merely a rule of evidence. Dismissing the appeal, this Court,     HELD:  1.  The offence of dowry death  punishable  under section  304-B  of the Indian Penal Code is  a  new  offence inserted  in the code with effect from .19.11.1986 when  Act No. 43 of 1986 came into force The said offence is  punisha- ble with a minimum sentence of seven years which may  extend to life imprisonment and is triable by Court of Session. The corresponding  amendments made by Act No. 43 of 1986 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 (Second  Amendment)  Act, 1983 is an offence  triable  by  a Magistrate of the First Class and is punishable with impris- onment  for a term which may extend to three years in  addi- tion  to fine. The offence of dowry death  punishable  under section  304-B  provides for a more stringent  offence  than section 498-A. Section 304-is a substantive provision creat- ing  a  new offence and not merely a provision  effecting  a change in procedure for trial of a pre-existing substanative offence. The rule of evidence to prove the offence of  dowry death  is contained in section 113-B of the Indian  Evidence Act providing for presumption as to dowry death which was  a simultaneous  amendment made in the Indian Evidence Act  for proving  ’the  offence of  dowery death. The fact  that  the Indian Evidence Act was so amended simul taneously with  the insertion of section 304-B in the Indian Penal  code by  the same  Amendment  Act is another pointer in  this  direction. There  fore, it cannot be held that section 304-B. does  not create a new offence and contains merely a rule of evidence. [818D-F, 819C-D] 2.  The respondents are being tried in the Court  of  Magis- trate  of .the First Class for the offence punishable  under section 498-A  which was in the statute book on the date  of death of Appellant’s daughter Their trial and punishment for the offence of dowry death provided in section 304-B of  the Indian Penal Code ’with the minimum sentence of seven years’ imprisonment  for an act done by them prior to  creation  of the  new offence of dowry death would clearly deny  to  them the  protection afforded by clause (1) of Article 20 of  the Constitution. Accord ingly, the view taken by the High Court that the respondents cannot be 814 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.  [818E, G, 819E]

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION: Criminal  Appeal  No. 533of 1991.     From  the  Judgment and Order dated 10.1.  1989  of  the Gujarat High Court in Miscellaneous Criminal Application No. 32 of 1989. H.S. Zaveri for the Appellant.     Dushayant Dave, Ashish Verma and Anip Sachthey. for  the Respondents.

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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 together in their marital home at Bagasara. On  13.8. 1986,  Chhaya died at Bagasara. The petitioner and his  wife got  some vague information about their daughter 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 trans- ferred  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  offencepunishable 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  petition- er’s application holding that this amendment being  prospec- tive   was  inapplicable  to  a  death  which  occurred   on 13.8.1986, prior to the amendment. Aggrieved by this  order, the petitioner moved an application (Misc. Criminal Applica- tion  No.  32 of 1989) in the High Court of Gujarat  .for  a direction  to commit this case of dowry death to ’the  Court of Session since an ’offence punish-able under section 304-B is  triable by the Court of Session.’ By the impugned  order dated  January 10, 1989, the High Court has  dismissed  that application. Hence this special leave petition. 815 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 was committed prior to  the  date  of insertion  of  section  304-B in the Indian  Penal  Code  on account of which the section can have no application to  the present  case.  None of the courts below. has  examined  the applicability  .of  any other  pre-existing  more  stringent provision  even  if section 304-B does not  apply.  As  such affirmation  of the view that section 304-B does not  apply, will  not  preclude 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 decid- ed 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 career. Society  contin- ues  to perpetuate the difference between them for the  pur- pose of marriage and it is this distinction which makes  the dowry  system  thrive. Even though for eradication  of  this social  evil,  effective steps can be taken by  the  society

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itself and the social sanctions of the community can be more deterrent, yet legal sanctions in the form of its  .prohibi- tion  and punishment are some steps in that  direction.  The Dowry  Prohibition Act, 1961 was enacted for  this  purpsoe. 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  ap-               proach them in other ways too, but legislation               is  necessary  and essential, so that  it  may               give that push and have that educative  factor               as well as the legal sanctions behind it which               help  public  opinion to be  given  a  certain               shape."               816      The  enactment  of Dowry Prohibition Act, 1961  in  its original  form was found inadequate. Experience  shows  that the  demand  of  dowry and the mode of  its  recovery  takes different  forms  to  achieve the same  result  and  various indirect and sophisticated methods are being used to  ’avoid leaving  any evidence of the offence. Similarly, the  conse- quences  of non-fulfilment of the demand 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 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 Code, the  Code  of  Criminal Procedure, 1973 and the Indian Evidence Act, 1872.     Two  of  the salient features of the  Dowry  Prohibition (Amendment) Act, 1986 (No. 43 of 1986) stated in the  State- ment 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  amend-               ments 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, section 8  of the Dowry’ Prohibition’ Act, 1961 was amended to make  every Offence  under this Act non-bailable while continuing it  to be  non-compoundable. By sections 10, 11 and 12,  amendments were made in the Indian Penal Code, Code of Criminal  Proce- dure,  1973 and the Indian’ Evidence Act, 1872, as  part  of the same scheme as follows: 817                        "10. In the Indian Penal Code, after,               section 304-A, the following section shall  be               inserted, namely:                        ’304-B.  Dowry death. (1)  Where  the               death  of  a woman is caused by any  burns  or               bodily  injury or occurs otherwise then  under

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             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,  ,’dowry".  shall have  the  same               meaning as in section 2 of the Dowry  Prohibi-               tion 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  Proce-               dure,  1973, in the First Schedule  after  the               entries relating to section 304-A, the follow-               ing entries shall be inserted, namely: Section  Offence  Punishment COgnizable Bailable or By what                          or non-     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 but which may extend to imprisonment for  life. ’               "12.  In the Indian Evidence Act, 1872,  after               section               818               113-A, the following section shall be  insert-               ed, 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 her ’death.  such               woman  has been subjected by such  .person  to               cruelty  Or harassment for, or  in  connecting               with,  any demand for dowry, the  Court  shall               presume that such person had caused the  dowry               death.                         Explanation.-For the purpose of this               section’,  "dowry death" shall have  the  same               meaning  as  in section 304-B  of  the  Indian               Penal Code (45 of 1860)."     It  is clear from the above historical  background  that the offence of dowry death punishable under section 304-B of the  Indian  Penal  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   (Second Amendment)Act,  1983  (Act  No. 46 of 1983)  is  an  offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition 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 punisha-

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ble  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  appel- lant’s contention would amount to holding that the  respond- ents  can  be tried and punished for the  offence  of  dowry death  provided  in section 304-B of the Indian  Penal  Code with  the minimum sentence of seven years’ imprisonment  for an act done by them prior to creation of the new offence  of dowry death. In our opinion, this would clearly deny to them the  protection afforded by clause (1) of Article 20 of  the Constitution which reads as under: 819                        "20..  Protection in respect of  con-               viction for offences. --(1) No person shall be               convicted of any offence except for  violation               of the law in force at the time of the commis-               sion of the act charged as an offence, ’nor be               subjected to a penalty greater than that which               might  have  been inflicted under the  law  in               force  at  the time of the commission  of  the               offence. ’ ’     "    In our opinion ,. the protection given  by  Article 20(1)  is a complete answer to the  appellant’s  contention. The  contention ’of learned counsel ’for the appellant  that section  304-B  inserted in the Indian Penal Code  does  not create a new offence and’ contains merely a rule of evidence is  untenable. The rule of evidence to prove the offence  of dowry  death  is contained in section 113-B  of  the  Indian Evidence  Act  providing for presumption as to  dowry  death which  was  a  simultaneous’ amendment made  in  the  Indian Evidence  Act  for proving the offence of dowry  death.  The fact that the Indian Evidence Act was so amended  simultane- ously  with  the insertion of section 304-B  in  the  Indian Penal’ Code by the same Amendment Act is’ another pointer in 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  re- spondents  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 any of  the courts below so far, the same does not arise for  considera- tion in the present proceeding. With these observations, the appeal is dismissed. T.N.A.                                         Appeal   dis- missed. 820