Sushil Kumar Sharma Vs. Union of India (UOI) and Ors - Jul 19 2005
Citation: JT 2005 (6) SC 266
Honourable Judges: Arijit Pasayat and H.K. Sema, JJ.
Issue:
Evidence Act, 1872 - Section 113B; Criminal Law (Second Amendment) Act,
1983; Dowry Prohibition Act, 1961; Indian Penal Code, 1860 -
Sections 304B, 306 and 498A; Criminal Procedure Code (CrPC), 1973; Constitution of India - Articles 14 and 32
Date Of Judgment: Jul 19 2005
Case No: Writ Petition (C) No. 141 of 2005
More cases on : Evidence Act Total [592]
Cases Referred:A. Thangal Kunju Musaliar v. M. Venkatachalam Potti,
Authorised Official and Income-Tax Officer and Anr.; Budhan Choudhry and Ors. v. State of Bihar.
Judgment:
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By
this petition purported to have been filed under Article 32 of the
Constitution of India, 1950 (in short 'the Constitution') prayer is to
declare
Section 498a of Indian Penal Code, 1860 (in short 'the IPC') to be
unconstitutional and ultra vires in the alternative to formulate
guidelines so that innocent persons are not victimized by unscrupulous persons making false accusations.
2.
Further prayer is made that whenever, any court comes to the conclusion
that the allegations made regarding commission of offence under
Section
498a IPC are unfounded, stringent action should be taken against person
making the allegations. This, according to the petitioner, would
discourage
persons from coming to courts with unclean hands and ulterior motives.
Several instances have been highlighted to show as to how
commission
of offence punishable under Section 498a IPC has been made with oblique
motives and with a view to harass the husband, in-laws and
relatives.
3.
According to the petitioner there is no prosecution in these cases but
persecution. Reliance was also placed on a decision rendered by a
learned
Single Judge of the Delhi High Court wherein concern was shown about
the increase in number of false and frivolous allegations made. It
was pointed out that accusers are more at fault than the accused.
Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.
4. Section 498a appears in Chapter XXA of IPC.
5.
Substantive Section 498a IPC and presumptive Section 113B of the Indian
evidence Act, 1372 (in short 'evidence Act') have been inserted in
the respective statutes by Criminal Law ( Second Amendment) Act, 1983.
6.
Section 498a IPC and Section 113B of the evidence Act include in their
amplitude past events of cruelty. Period of operation of Section
113B
of the evidence Act is seven years, presumption arises when a woman
committed suicide within a period of seven years from the date of
marriage.
7. Section 498a reads as follows:
"498a:
Husband or relative of husband of a woman subjecting her to cruelty-
Whoever, being the husband or the relative of the husband of a
woman,
subjects such woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be liable to
fine.
Explanation - For the purpose of this section 'cruelty' means -
(a)
any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life,
limb or health whether mental or physical of the woman; or
(b)
harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for
any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Section 113B reads as follows:-
"113B:
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 connection with, any demand for dowry, the
Court shall presume that such person had caused the dowry death.
Explanation
- For the purposes of this section 'dowry death' shall have the same
meaning as in Section 304B of the Indian Penal Code (45 of
1860)."
8.
Consequences of cruelty which are likely to drive a woman to commit
suicide or to cause grave injury or danger to life, limb or health,
whether
mental or physical of the woman is required to be established in order
to bring home the application of Section 498a IPC. Cruelty has
been
defined in the explanation for the purpose of Section 498a. It is to be
noted that. Sections 304B and 498a, IPC cannot be held to be
mutually
inclusive. These provisions deal with two distinct offences. It is true
that cruelty is a common essential to both the Sections and that has
to
be proved. The explanation to Section 498a gives the meaning of
'cruelty'. In Section 304B there is no such explanation about the
meaning
of 'cruelty'. But having regard to common background to these
offences it has to betaken that the meaning of 'cruelty' or
'harassment' is the
same as prescribed in the Explanation to Section 498a under which 'cruelty' by itself amounts to an offence.
9.
The object for which Section 498a IPC was introduced is amply reflected
in the Statement of Objects and Reasons while enacting Criminal Law
(Second
Amendment) Act No. 46 of 1983. As clearly stated therein the increase
in number of dowry deaths is a matter of serious concern. The
extent
of the evil has been commented upon by the Joint Committee of the Houses
to examine the work of the Dowry Prohibition Act, 1961. In some
cases,
cruelty of the husband and the relatives of the husband which culminate
in suicide by or murder of the helpless woman concerned, which
constitute
only a small fraction involving such cruelty. Therefore, it was
proposed to amend IPC, the Code of Criminal Procedure, 1973 (in
short
'the Cr.P.C.') and the evidence Act suitably to deal effectively not
only with cases of dowry deaths but also cases of cruelty to married
women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.
10.
One other provision which is relevant to be noted is Section 306 IPC.
The basic difference between the two Sections i.e. Section 306 and
Section
498a is that of intention. Under the latter, cruelty committed by the
husband or his relations drag the women concerned to commit
suicide, while under the former provision suicide is abetted and intended.
11.
It is well settled that mere possibility of abuse of a provision of law
does not per se invalidate a legislation. It must be presumed,
unless
contrary is proved, that administration and application of a particular
law would be done "not with an evil eye and unequal hand" (see: A.
Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)
12.
In Budhan Choudhry and Ors. v. State of Bihar a contention was raised
that a provision of law may not be discriminatory but it may land
itself
to abuse bringing about discrimination between the persons similarly
situated. This court repelled the contention holding that on the
possibility
of abuse of a provision by the authority, the legislation may not be
held arbitrary or discriminatory and violative of Article 14 of
the Constitution.
13.
From the decided cases in India as well as in United States of America,
the principle appears to be well settled that if a statutory
provision
is otherwise intra-vires, constitutional and valid, mere possibility of
abuse of power in a given case would not make it objectionable,
ultra-vires
or unconstitutional. In such cases, "action" and not the "section" may
be vulnerable. If it is so, the court by upholding the
provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.
14.
In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a
Bench of 9 Judges observed that mere possibility of abuse of a
provision
by those in charge of administering it cannot be a ground for holding a
provision procedurally or substantively unreasonable. In Collector of
Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed:
"The
possibility of abuse of a statute otherwise valid does not impart to it
any element of invalidity." It was said in State of Rajasthan v.
Union
of India "it must be remembered that merely because power may sometimes
be abused, it is no ground for denying the existence of power.
The
wisdom of man has not yet been able to conceive of a Government with
power sufficient to answer all its legitimate needs and at the same
time
incapable of mischief." (Also see: Commissioner, H.R.E. v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).
15.
As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat.
Unique Butle Tube Industries (P) Ltd. v. U.P. Financial
Corporation
and Ors. and Padma Sundara Rao (dead) and Ors. v. State of Tamil and
Ors., while interpreting a provision, the Court only interprets the law
and
cannot legislate it. If a provision of law is misused and subjected to
the abuse of the process of law, it is for the legislature to amend,
modify or repeal it, if deemed necessary.
16.
The judgment of the Delhi High Court on which reliance was made was
rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that
case
while holding that the allegations regarding commission of offence
punishable under Section 498a IPC were not made out. Certain
observations in general terms were made about the need for legislative changes.
The
complainant had moved this Court against the judgment on merits in
SLP(Crl)......of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By
order dated 28.11.2003 this Court observed, as follows:
"Heard learned counsel for the petitioner.
Delay condoned.
We
do not see any merit in the challenge made to the order of the High
Court in Criminal Revision No. 462 of 2002, on the facts of the case.
The special leave petition is, therefore, dismissed.
At
the same time, we express our disapproval of some of the generalized
views expressed in paragraphs 23 to 32 of the judgment of the High
Court
by the learned Single Judge. The learned Judge ought to have seen that
such observations, though may be appropriate for seminars or
workshops,
should have been avoided being incorporated as part of a court
judgment. Some of the views also touch upon Legislative measures and
wisdom
of legislative policy in substance, which according to the
learned Judge need to be taken into account. There was no scope for
considering all
such matters in the case which was before the learned
Judge. It is, therefore, appropriate that such generalized observations
or views should
meticulously avoided by Courts in the judgments."
17. Above being the position we find no substance in the plea that Section 498a has no legal or constitutional foundation.
