HC: Sentence of fine less than Rupees fifteen thousand can not be imposed for the offence under section 3 of Dowry Prohibition Act.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 44
Crl. Appeal No. 6808of 2008
Omwati & others……………………..Appellants
State of U.P………………………………………………Respondent
Hon. Shiv Charan,J.
Hon. Vijay Kumar Verma,J.
Learned AGA has filed objection, which be taken on record.
Heard Sri P.N. Mishra, Senior Advocate, and Sri V.M. Zaidi, learned counsel appearing for the appellants and learned AGA for the State on the prayer of bail of the appellants Omwati, Manoj Kumar, Rekha and Haridesh, who have been convicted and sentenced vide judgment and order dated 22.09.2008 passed by Sri Kishore Kumar-1st, the then Additional Sessions Judge Court No. 1 Bijnor in S.T. No. 574 of 2007 (State vs. Vinod Verma & others), under section 498A, 304B IPC and ¾ Dowry Prohibition Act (in short D.P. Act), P.S. Haldaur, District Bijnor. We have also perused the entire material on record.
Learned counsel for the appellants argued that these appellants were convicted by the learned trial court under sections 498A, 304B IPC and section ¾ D.P. Act and they have been sentenced to maximum imprisonment for 7 years, whereas the husband, Vinod Verma has been sentenced to life imprisonment for the offence under section 304B IPC.
Learned counsel further argued that Omwati is the mother-in-law, Manoj is the brother-in-law (jeth), Rekha and Hridesh @ Indresh are sisters-in-law (Nanad) of the deceased. It is also submitted that according to the statements of investigating officers P.W. 5 Shiv Ram Yadav and P.W. 6 Rahul Kumar, accused Vinod Verma, husband of the deceased, was living in separate house, whereas Manoj and mother-in-law of the deceased were living in different houses situated in mohallah Raisan Haldaur and they had nothing to do with the demand of dowry. Learned counsel further argued that other two appellants are the sisters-in-law of the deceased and they were not going to be benefitted from the demand of dowry. It is also argued that there are general allegations for demand of dowry against the appellants. The deceased and her husband were living in a separate house and there might be an altercation in between them, due to which the incident might have taken place. Otherwise, these appellants had nothing to do with the incident. Learned counsel for the appellants further argued that considering the role of these appellants, the learned Sessions Judge convicted them for seven years’ imprisonment only. It is further submitted that these appellants were on bail during trial and they did not misuse the bail.
Learned AGA opposed the prayer of bail of the appellants and argued that marriage of the deceased with Vinod Verma was solemnised on 23rd November 2004, whereas the incident took place on 11th June 2007 after about 2 ½ years of the marriage. The death was unnatural and there was evidence of demand of dowry.
We have considered all the facts and circumstances of the case as well as submissions made by the learned counsel for the parties. These appellants were living separately from the husband and the deceased. Hence they may be admitted to bail.
Let the appellants Omwati, Manoj Kumar, Rekha and Hridesh @ Indresh be released on bail in the above case during pendency of appeal on their furnishing a personal bond with two sureties each in the like amount to the satisfaction of trial court concerned.
Before parting with this order, we would like to point out that surprisingly the learned trial Judge has not imposed proper sentence for the offence punishable under section 3 D. P. Act. All the appellants-accused have been convicted under section 3 D.P. Act also, but sentence of imprisonment of two years only has been awarded on this count, whereas after amendment of D.P. Act vide Amending Act 43 of 1986, minimum sentence under section 3 D.P. Act is imprisonment for the period not less than five years with fine, which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. Although, in view of the Proviso to Section 3 of the Act, the Court may, for adequate and special reasons to be recorded in the judgement, impose sentence of imprisonment for a term of less than five years, but no discretion has been given to the Court to impose fine less than fifteen thousand rupees. The learned Trial Judge has not imposed any fine under section 3 D.P. Act also and without recording any adequate or special reasons sentence of imprisonment less than five years has been awarded. Thus, the sentence imposed by the learned Trial Judge under Section 3 D.P. Act is wholly illegal. No discretion is left to the courts by Legislature in the matter of imposing fine in case of conviction under section 3 D.P. Act and it is mandatory under this section to impose fine also, which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. The Hon’ble Supreme Court in the case of Kripal Singh vs. State of Haryana 2000 (40) ACC 136 has held that where minimum sentence is prescribed in the statute, then neither the Trial Court nor the High Court can bypass the minimum limit prescribed by law. It is most unfortunate that such glaring mistake has been committed by the judicial officer of the rank of Additional District & Sessions Judge.
The Registrar General is directed to send a copy of this order to Sri Kishore Kumar-1st , the then Additional Sessions Judge, Court No. 1 Bijnor for his future guidance.