1. The petitioner filed a complaint under S. 5 of the Dowry Restraint Act, 1960 (hereinafter referred to as the Act) averring therein that his grand-daughter Ranjit Kour was married to accused No. 4 Kanwaljit Singh on 25-11-1984. Accused Harbhajan Singh and Smt. Mohinder Kour are the parents-in-law of the grand-daughter while accused Satinder Singh and Smt. Pinky are her brother and sister-in-law. After narrating how the marriage was soleminised it is stated in the complaint that soon after the marriage all the accused persons started harassing and teasing the bride Ranjit Kour and pressurised her to bring more dowry of at least Rs. 5000/- for the purchase of furniture articles. That his grand-daughter wrote a letter to him but neither he nor his son could fulfill the demand of the accused. That on 22-2-1985 the husband of Ranjit Kour along with his mother and father brought his grand-daughter to Jammu to his house and told him in clear words that Ranjit Kour would be taken back to the matrimonial house only when their demand was fulfilled. That both he and his son made efforts for amicable settlement but to no avail. That accused 1, 2 and 5 thereafter left his house leaving his grand-daughter with him. The learned Chief Judicial Magistrate, on the basis of the documentary and oral evidence of the complainant and Ranjit Kour vide order dt. 31-8-1985 took cognisance of the case under S. 5 of the Act but issued process against Kanwaljit Singh only who appeared on 3-10-1985 when the complainant requested the court to summon the other accused also as prima facie case against each of the accused stood established. The court, however, vide order dt. 3-10-1985 found that Kanwaljit Singh being the husband of Ranjit Kour, alone could be summoned for an offence u/s. 5 of the Act and not the others “even as abetters” because abetment for taking dowry is no offence under the Act.
2. This order was challenged in revision and the 2nd Addl. Sessions Judge, Jammu, vide his order dt. 9-4-1986 recommended that the orders of the trial court dt. 31-8-1985 and 3-10-1985 be reversed and a direction issued to the Chief Judicial Magistrate to summon all the five accused persons and proceed in the case in accordance with law.
3. A perusal of the complaint and the preliminary statements recorded by the Chief Judicial Magistrate in support thereof, prima facie show that allegations have been made against all the five accused persons of their ‘demanding’ dowry themselves. S. 3 of the Dowry Restraint Act, 1960, reads as follows:
“Any person who takes dowry shall be punishable with simple imprisonment which may extend to six months, or with fine which may extend to the amount or value of the dowry taken, or with both.”
4. Section 5 of the Act reads as follows:
“A person who at any time within three years after the solemnisation of a marriage, demands, either directly or indirectly, from the parents or any other person who was the guardian of the woman before her marriage any payment which is in the nature of a dowry, shall be deemed to have committed an offence under S. 3 of this Act and shall be punishable accordingly.”
5. A conjoint reading of the two sections would show that any person who demands, dowry either directly or indirectly, from the parents of any other person who was the guardian of the bride before her marriage, within 3 years after the solemnisation of marriage, is punishable with simple imprisonment which may extend to six months or with fine which may extend to the amount or value of the dowry taken or with both. “Demand of dowry” within 3 years of the date of solemnisation of marriage, has been equated with taking of dowry u/s. 3 of the Act.
6. From the material on the record it is reasonable to believe that “demand” is alleged to have been made by all the accused and there were grounds to issue process against all those to whom the acts of omission and commissions were attributed. The learned Chief Judicial Magistrate, therefore was not justified in refusing to summon all the accused persons to answer the charge for an offence u/s. 5 of the Act as there is nothing in S. 5 of the Act to restrict its application to the ‘husband’ of the bride only and in doing so the court fell in error. Each of the accused was alleged to have ‘demanded’ dowry. There was no allegation that the accused, other than the husband, had abetted the demand of dowry. There was, therefore, no warrant for assumption that unless ‘abetment’ was an offence under the Act, accused, other than the husband could not be summoned for an offence u/s. 5 of the Act. There were no distinguishing features between the case of the husband and the other accused who had also allegedly demanded dowry. The orders of the trial court dt. 31-8-1985 and 3-10-1985 to the extent that the other accused were not summoned, cannot be sustained and are set aside.
7. Although the refusal to, summon the accused other than the husband amounts to dismissal of the complaint u/s. 203, Cr. P.C and the Sessions Judge was u/s. 436, Cr. P.C, himself competent to order further inquiry and ordinarily the reference should have been declined and Sessions Judge asked to proceed u/s. 436, Cr. P.C But as the case is already old, to avoid any further delay, the case is sent back to the trial court for further inquiry in accordance with the observations made above and for disposal of the complaint in accordance with law expeditiously.
8. Before parting with this judgment, I would, also like to observe that there is an ambiguity in so far as Ss. 3 and 5 of the Dowry Restraint Act, 1960 are concerned. S. 3 which has been reproduced above, prescribes penalty for any person “who takes dowry”. The section does not prescribe any penalty for “abetting” the taking of dowry. Whereas u/s. 4 of the Act, both the person who gives the dowry as well as the one who abets the giving of dowry, are punishable, there does not seem to be any reason why ‘abetment’ for taking dowry should be left out from the ambit of S. 3 of the Act. Similarly, in S. 5 of the Act, a person who abets the ‘demand’ of dowry, has been left out, for which there also does not seem to be any justification. It appears that inadvertently ‘abetment’ for taking or demanding dowry have been left out from Ss. 3 and 5 of the Act. The possibility, therefore, of the persons who abet the taking of dowry or demanding dowry, getting scot free under the Act, cannot be ruled out. The abetter is, as much guilty, as the one who actually ‘takes’ or ‘demands’ dowry and as a matter of fact, cases are not wanting where the person who “takes” or “demands” dowry does so on the instigation and or abetment of his relatives etc. The abetter must, therefore, be brought within the net of law under the Act. This is a matter for the State legislature to remedy. Since, the evil of dowry is on the rise and the evil requires to be curbed with strong hand, the earlier the legislature takes notice of this defect in Ss. 3 and 5 of the Act the better it would be for the society at large. A copy of this judgment shall be sent to the Secretary to Government, Law Department, Jammu and Kashmir Government.
9. Petition allowed.