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 [482]

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:

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.

18. The object of the provision is prevention of the dowry menace. But as has been rightly
contented by the petitioner many instances have come to light where the complaints are not
bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in
all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media
coverage adds to the misery. The question, therefore, is what REMEDIAL MEASURES can be taken to
prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and
intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash
harassment. It may, therefore, become necessary for the legislature to find out ways how the
makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts
have to take care of the situation within the existing frame work. As noted above the object is to
strike at the roots of dowry menace. But by misuse of the provision a new LEGAL TERRORISM can
be unleashed. The provision is intended to be used a shield and not an assassin's weapon. If cry of
"wolf" is made too often as a prank assistance and protection may not be available when the actual
"wolf" appears. There is no question of investigating agency and Courts casually dealing with the
allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures,
deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to
ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any pre-
conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies
and the courts start with the presumptions that the accused persons are guilty and that the
complainant is speaking the truth. This is too wide available and generalized statement. Certain
statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the
investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be
their effort to see that an innocent person is not made to suffer on account of unfounded, baseless
and malicious allegations. It is equally undisputable that in many cases no direct evidence is
available and the courts have to act on circumstantial evidence. While dealing with such cases, the
law laid down relating to circumstantial evidence has to be kept in view.

19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the
'CBI') in certain matters where the petitioner is arrayed as an accused. We do not find any substance
in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

Held : The Writ Petition is accordingly disposed of.