BAIKUNTHANATH JENU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner and proforma opposite party No.2 are accused in case under Section 3 and 4 of the Dowry Prohibition Act (for short the 'Act') and have challenged the order of cognizance dated 6 -21985 passed by the learned Sub -Divisional Judicial Magistrate, Bhubaneswar.

(2.) PROSECUTION case, which is a very unfortunate one, is narrated below. The marriage negotiation between Sanjukta, an educated young girl, with the petitioner who was serving as Judicial Magistrate at Bhubaneswar was started by some negotiators in January, 1982. During negotiation, on behalf of the petitioner and proforma opposite party No.2 demand of dowry of cash of Rs. 35,000/ - and costly articles, such as, television, H.M.T. watch, refrigerator, 15 Tolas of gold ornaments and a piece of land at Bhubaneswar, was made. The parents of Sanjukta willy -nilly agreed for giving the dowry and as a matter of fact, on 10 -2 -1982 at the time of Nirbandha ceremony, a sum of Rs. 15,000/ - was paid by her parents to the petitioner and pro forma opposite party No.2. Again on 28 -4 -1982 a sum of Rs. 5,000/ - and on 28 -4 -1982 a sum of Rs. 11,500/ -in cash and Rs. 3,500/ - in cheque was paid to them. The marriage was performed on 1 -5 -1982 during which costly presents as per the demand were given. After the marriage, Sanjukta lived in the village of the petitioner and far from leading a happy married life was constantly tortured, because the present of gold ornaments given to Sanjukta was less than 15 Tolas. In the meantime, the petitioner was transferred as Judicial Magistrate to Sambalpur and was living in a rented house. Sanjukta went to live with him and on 30 -9 -1982 she was found dead hanging from the ceiling of a room of the house. The records of the case do not disclose as to the proceeding that followed and whether any case was initiated to find out whether death was suicidal or was a result of homicide. It is further not known, on whom the responsibility for death of Sanjukta was fixed, but in U.I. Case No. 652 of 1983 the Chief Judicial Magistrate, Sambalpur, passed on order on 18 -8 -1983 saying that the prosecution report should be sent to the prosecutor by registered post with A.D. for presentation in the proper Court. On 6 -2 -1985 the prosecution report which was returned to the Prosecutor was presented before the learned Sub -Divisional Judicial Magistrate, Bhubaneswar, and it is not known where it was lying for about two and half years in between. Even thereafter the case did not make any headway till 27 -4 -1987 when the elder sister of Sanjukta was examined in part as P.W. -1. On 7 -7 -1987, however, a petition was filed challenging the order of cognizance on the ground that Section 468 of the Code of Criminal Procedure, (for short 'Code') was a bar and cognizance was taken long after expiry of the limitation prescribed under it. The petition was heard arid by order dated 30 -7 -1988 the learned Additional Chief Judicial Magistrate, Bhubaneswar, to whose Court the case was transferred, rejected the petition on the ground that he had no power of review of the earlier order, and so could not quash the order of cognizance taken earlier.

(3.) ACCORDING to Mr. N.C. Panigrahi who appeared for the petitioner, Section 7 of the Act as amended is prospective and not retrospective in operation. Therefore, all offences under the Act after Section 7 become effective on 2 -10 -1985 shall be governed by the provisions the roof having no bar of limitation for taking cognizance. But for offences prior to the amendment, the limitation for taking cognizance was one year from the date of offence according to the old Section 7(b) of the act. This is a crucial question which needs examination, Section 6 of the amendment Act No. 63 of 1984 reads: "For section 7 of the principal Act, the following section shall be substituted, namely." There is no indication in the Section nor any where in the Amendment Act to show that the new Section is retrospective in operation. It was held in Arjan Singh & anr. v. State of Punjab and ors.1 that it is a well settled rule of construction that no provision in a statute should be given retrospective effect unless the legislature by express terms or by necessary implication has made it retrospective and that where a provision is made retrospective, care should be taken not to extend its effect beyond what was intended. In view of the aforesaid principle and in the absence of indication of intention of the legislature to give retrospective operation to the amended Section 7 of the Act, manifestly, cognizance of offence under the Act which took place in 1982 could not be taken on 6 -2 -1985 according to Section 7(b) as it stood prior to the amendment. This view finds support from a decision reported in K. Ramalingam v. The State.2