Single judge bench of Allahabad High Court made pertinent comments on how not to interpret a provision of law.
From Para 6,
6. It is not disputed that the learned Magistrate had taken cognizance on the complaint filed by Dowry Prohibition Officer. Section 7(1)(b) of Dowry Prohibition Act bars taking cognizance of an offence under this Act except upon a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation. In this case undisputedly, the complaint was not filed by opposite party No. 2, or her parents or other relatives. Dowry Prohibition Officer has not been authorised by above section to file complaint. No doubt, Section 8B of Dowry Prohibition Act says that the State Government may appoint as many Dowry Prohibition Officer as it thinks fit and specified area in respect of which they shall exercise their jurisdiction and powers under this Act.
From Paras 8-11,
8. The learned Additional Sessions Judge has observed that though the Dowry Prohibition Officer was not authorised to file complaint, but he had power to collect evidence as may be necessary for the prosecution of persons committing offence under the Act and it appears that it was the intention of the Legislature to empower the District Dowry Prohibition Officer to move to the Court for prosecution of the person, who is found guilty of taking or demanding dowry. He further observed that if he was not empowered to file complaint for prosecution of guilty person, he cannot prevent the taking of dowry and his act of collecting evidence will go waste. In these circumstances, the Dowry Prohibition Officer has got power to collect evidence and also got powers to file complaint. The above observation of the learned Additional Sessions Judge shows that he acted beyond the scope of Section 7(1)(b) of the Act. If the Legislature actually intended to confer power of filing complaint on Dowry Prohibition Officer, it ought to have been mentioned in Section 7(1)(b) of the Act itself.
9. The power to file complaint, therefore, cannot be inferred from the analogy of the powers of Dowry Prohibition Officer enumerated in Section 8B. Anything which is not in the Act cannot be inserted by Courts. The Court does not possess law-making power. The Courts may interpret the law contained in the Act and not insert any fresh provision, which has deliberately not been incorporated by the Legislature. Therefore, the above observation of the learned Additional Sessions Judge that Dowry Prohibition Officer has got power to file the complaint is against the provisions of law.
10. The learned Additional Sessions Judge has further observed that Section 7(1)(b)(ii) and the Explanation to said section says that Court shall take cognizance of a complaint filed by a recognised welfare institution or organisation. The Harijan Welfare Department of the State of U.P. is a welfare institution and if its officer has filed complaint under the provisions of Dowry Prohibition Act, the Magistrate will take cognizance over it under Section 7(1)(b)(ii). This observation of the learned Additional Sessions Judge is also against the provisions of law. The complaint was not filed by Harijan Welfare Department allegedly a recognised welfare institution, but by Dowry Prohibition Officer. If the law requires that complaint should be filed by an institution, then it must be filed by institution and not by other Authority. It may be true that Dowry Prohibition Officer was appointed by Harijan Welfare Department, but that officer did not become the Department itself and no action has been taken by the Department, as there is no such indication in the complaint that it was filed by Harijan Welfare Department through Dowry Prohibition Officer. Therefore, above observations of the learned Additional Sessions Judge are against the provisions of law and cannot be accepted.
11. In the result it is clear that complaint was not filed by person enumerated in Clause (b) of Sub-section (1) of Section 7 of Dowry Prohibition Act and, therefore it was without authority. Therefore, the cognizance against the applicants on the complaint filed by unauthorised person could not have been taken. Therefore, there was legal bar for taking cognizance against the applicants and cognizance was wrongly taken. The prosecution of applicants on the complaint of unauthorised and incompetent person was nothing but abuse of process of law and on this ground the cognizance as well as proceedings arising out of it are liable to be quashed under the exercise of powers conferred under Section 482, Cr.P.C. Thus, the application succeeds.
Indian kanoon version:
Yogesh Chhibbar Vs State of U.P. on 6 Dec 1999 (IK Ver)
Yogesh Chhibbar Vs State of U.P. on 6 Dec 1999 (CM Ver)
Citations : [2000 ACR 1 65], [2000 ALLCC 40 459], [2000 RCR CRIMINAL 3 206], [2000 DMC 2 537], [2000 JIC 2 575], [1999 SCC ONLINE ALL 1527], [2000 ALL LJ 1053], [2000 CRI LJ 2849], [2001 HLR 1 676]
Other Sources :