No more mechanical addition of Murder charges in Dowry Death Cases
In a significant
Judgment,
the Supreme Court has practically put an end to the practice of
mechanically adding the charge of Murder (S.302 IPC) in all Dowry Death
Cases(S.304 IPC) by Trial Judges following a blanket directive of the
Supreme Court in Rajibir v. State of Haryana (AIR 2011 SC 568).
It was on 22
nd November 2010, the Bench headed by Justice
Katju, along with Justice Gyan Sudha Misra issued a direction to the
Trial Courts. The Court said;
“We further direct all Trial Courts in India to ordinarily add
Section 302 to the charge of section 304B, so that death sentences can
be imposed in such heinous and barbaric crimes against women”.
The order surprised many, as it came from a Judge who, on every occasion cautioned the Courts against judicial legislation. In
Gian Singh v. State of Punjab,
Justice Katju referred the question regarding compounding of
non-compoundable offences to larger Bench by holding that the Court
cannot amend the statute and must maintain judicial restraint in this
connection. He also reminded that the Courts should not try to take over
the function of the Parliament or Executive. Interestingly,
contradicting himself, above direction was passed to add the charge of
murder in all cases falling under Section 304B. The Bench even forgot
the legal principle that the act of framing charge is not an empty
formality. The order ignored the settled legal position that a charge
can be framed only if the records prima facie reveal facts which
constitute an offence thus charged. The direction virtually amended
Section 216 of Cr.P.C, thereby restraining the Trial Courts from
applying their minds to the facts and circumstances of each case while
framing a Court charge.
As a result, even in cases in which records reveal that the victim
has committed suicide, Trial Courts were bound to frame charge for
murder!!
The Supreme Court while considering the present case found that
though the Trial Court did not find any evidence to invoke the murder
charge, it was constrained to frame charge for murder solely to comply
with Justice Katju’s judgment. In the charge it was stated as follows;
“Even otherwise, the directions of the Hon’ble Apex Court in the
case of Rajbir @ Raju & Anr. Vs. State of Haryana in Special Leave
Petition bearing No. 9507/2010 decided on 22-11-2010 duly circulated
vide No. 33760- 69/DHC/Gaz/G-X/SCJ/2010 dated 3-12-2010, specific
directions have been issued to all the subordinate Courts in India to
ordinarily add Section 302 IPC to the charge under Section 304B IPC.
Therefore, this being the background, charge under Section 302 IPC is
being framed in alternative against the accused persons against whom
charge under Section 304 B IPC had been framed. The accused pleaded not
guilty and claimed trial.”
The Delhi High Court upheld the above order of the Trial Court
presumably to comply with the directive in Rajbir Case and the other
directions in Suganti vs. Jagdesan (AIR 2002 SC 681) in which it was
held as follows. ”
“It is impermissible for the High Court to overrule the decision
of the apex Court on the ground that Supreme Court laid down the legal
position without considering any other point. It is not only a matter of
discipline for the High Courts in India, it is the mandate of the
Constitution as provided in Article 141 that the law declared by the
Supreme Court shall be binding on all Courts within the territory of
India”
The judgment delivered on 2
nd July 2013 by the Supreme
Court Bench consisting of Justice T S Thakur and Justice Ranjana Prakash
Desai has quashed the charge framed by the Trial Court under Section
302 IPC and remitted the matter back to the Trial Court for a fresh
consideration. The Bench said;
“The Trial Court in that view of the matter acted mechanically for
it framed an additional charge under Section 302 IPC without adverting
to the evidence adduced in the case and simply on the basis of the
direction issued in Rajbir’s case (supra). The High Court no doubt made a
half hearted attempt to justify the framing of the charge independent
of the directions in Rajbir’s case (supra), but it would have been more
appropriate to remit the matter back to the Trial Court for fresh orders
rather than lending support to it in the manner done by the High
Court”.
The Supreme Court has now clarified the direction in Rajbir by observing that;
“Be that as it may the common thread running through both the
orders is that this Court had in Rajbir’s case (supra) directed the
addition of a charge under Section 302 IPC to every case in which the
accused are charged with Section 304-B. That was not, in our opinion,
the true purport of the order passed by this Court. The direction was
not meant to be followed mechanically and without due regard to the
nature of the evidence available in the case. All that this Court meant
to say was that in a case where a charge alleging dowry death is framed,
a charge under Section 302 can also be framed if the evidence otherwise
permits.”
There cannot be any scope for doubt on the directive in Rajbir and it
was so clear that the Trial Court and the High Court have no choice but
to comply with the order literally. Though Rajbir did not contain the
words “
if the evidence otherwise permits”, it has now been explained by the Supreme Court, by adding such an expression, which it did not actually contain.
But those who know the zero tolerance approach of Justice Katju’s
towards dowry deaths would easily realise that Rajbir was his final
attempt to award death penalty in all dowry death cases, against his own
advice to curb judicial legislation.
In Nathu v. State of U.P while hearing a bail application
[Application No: 12466 of 2002] Justice Katju observed, “In my opinion
dowry death is worse than murder but surprisingly there is no death
penalty for it whereas death penalty can be given for murder. In my
opinion the time has come when law be amended and death sentence should
be permitted in case of dowry deaths”. He also directed that a copy of
the order be sent by the Registrar to Law Minister and Home Minister
with a request that they might consider introducing a Bill in the
Parliament for such amendment or an ordinance by the Central Government
to the same effect.”
Pursuant to the direction in Nathu v. State the Law Commission of
India examined the question “whether Section 304B of IPC should be
amended to provide for more stringent punishment of death to curb the
menace of dowry deaths. In its 202
nd report dated 9
th
October, 2007 the Commission concluded that “we do not recommend
amendment of Section 304B of the Indian Penal Code to provide for death
sentence as the maximum punishment in case of dowry death”.
On 28
th October, 2010 in Satya Narayan Tiwari vs. State of
U.P. (2010) 13 SCC 689) while upholding the conviction of the accused
U/S 304B and 498A the Bench headed by Justice Katju wrote “”In fact, it
was really a case under S.302 IPC and death sentence should have been
imposed in such a case, but since no charge under S.302 IPC was
levelled, we cannot do so, otherwise, such cases of bride burning, in
our opinion, fall in the category of rarest of rare cases, and hence
deserve death sentence”. It seems, finally the Bench thought of
venturing into judicial legislation and
just after three weeks, the same Bench delivered the Rajbir Judgment.
http://www.livelaw.in/no-more-mechanical-addition-of-murder-charges-in-dowry-death-cases/
