STATE Vs. CHAMPALAL SAH AND ORS.

JUDGEMENT

(1.) Whether the single Judge judgment in Jhapsi Choudhary and another vs. The State of Bihar and another ( : 1983 PLJR 358) has been rendered per incuriam - -is the solitary, though significant, question in this criminal reference under Sec. 395 of the Code of Criminal Procedure. In view of the pristinely legal nature of the question involved, it is unnecessary to recount the facts in any great detail. It suffices to mention that the reference arises from a proceeding under the Dowry Prohibition Act of 1961. When the accused persons put in appearance in compliance with the issue of process against them, a preliminary objection was sought to be raised under Sec. 7(b) of the said Act. It was argued that cognizance could be taken only on the basis of a complaint within one year and therefore, the cognizance taken on the basis of the police report, as was the case, stood vitiated. Firm reliance for this position was placed on Jhapsi Choudhary and another v/s. The State of Bihar and another ( : 1983 PLJR 358). On the other hand, the prosecution pointed out the changes wrought in the Act by the Dowry Prohibition (Bihar Amendment) Act, 1975 which had made the offence under the Act both cognizable and non -bailable. The learned Magistrate took notice of the fact that apparently the provisions of the subsequent amending Act had not been brought to the notice of the Bench in Jhapsi Choudhary's case and, therefore, took the view that substantial question of law had arisen necessitating the reference of the matter to the High Court.

(2.) It would appear that the present reference is indeed well merited. It suffices to recall that the Dowry Prohibition Act, which is a Central statute, was enacted a quarter century ago in 1961. However, its actual application within the State did not seem to have come at par with the expectations of curbing the evil of dowry therein. The State Government, therefore, brought certain amendments in the Central Act with a view to making it more stringent and expressly made the offences thereunder cognizable, non -bailable and non -compoundable. To meaningfully notice the "changes brought by the amending Act, it would be apt to juxtapose the provisions of law before and after amendment. - -

(3.) It would be manifest from the above that the amending Act has expressly deleted clause (b) of the principal Act which laid down the twin conditions that no court shall take cognizance of any such offence except on a complaint and further spelt out the period of limitation of one year from the date of offence therefor. Equally significant it is that Sec. 8 completely reverses the position by making the offences cognizable by the police and also non -bailable and non -compoundable.