Justice K C Bhanu from AP High Court has held as follows:
From Para 2,
2. Petitioner is an accused in C.C. No. 224/1995. Chinna Chowk Police laid a charge-sheet against him, his parents and three sisters for an offence punishable under Section 498-A of the Indian Penal Code and for offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, for short, hereinafter to be referred to as “the Act”. A single charge under Sections 3 and 4 of the Act was framed against petitioner and A-2. After conclusion of trial and before judgment, the learned Magistrate framed separate charges under Sections 3 and 4 of the Act against petitioner and A-2 and recalled P.Ws. 1 to 3 and cross-examination them. During their cross-examination, P.Ws. 1 to 3 admitted that they had given Rs. 1 lakh as dowry and presented gold jewels worth Rs. 50,000/- to the petitioner and his father. At that stage, petitioner filed Crl. M.P. No. 4073/1998 before the Trial Court under Section 319, Cr.P.C, to implead P.Ws. 1 to 4 as accused for the offence under Sections 3 and 4 of the Act, to be tried along with the other accused in the case, since both the giver and taker of dowry are equally liable for punishment under the Act. The learned Magistrate dismissed that application against which petitioner filed Crl. R.P. No. 15/1999 before the Sessions Court. The learned Sessions Judge has dismissed the revision holding that P.Ws. 1 to 4 cannot be tried as accused in the same trial as they are protected under Section 7(3) of the Act. It is as against the order of dismissal of the revision, A-1 filed the present petitioner to quash the said order.
From Para 7,
7. A plain reading of the above provision would go to show that giving or taking of dowry as well as abetment of giving or taking of dowry is an offence punishable under the Act. On the basis of the statements made before the Court by P.Ws. 1 to 3 admitting that they gave dowry, can they be tried as accused in the same trial, is the question.
From Para 10,
10. If P.Ws. 1 to 4, who were examined as witnesses, are added as accused and arrayed in the list, of the accused persons, the proceedings in respect of them shall have to be commenced afresh and thewitnesses reheard. It means they have to give evidence against themselves, which is not permissible under law. Clause (3) of Article 20 of the Constitution provides that no person accused of any offenceshall be compelled to be a witness against himself. This protection is available to the person accused ofan offence not merely with respect to the evidence to be given in the Court-room in the course of trial butis also available to him at the previous stages, if an accusation has been made against him which might, in the normal course, result in his prosecution. It follows that the protection is available to a person againstwhom the formal accusation has been made though the actual trial may not have commenced as yet andif such an accusation relates to the commission of an offence which in the normal course may result in prosecution. In view of the above provisions, the witnesses cannot be compelled to give evidence against themselves. Therefore, P.Ws. 1 to 4, cannot be arrayed as accused along with petitioner and others in the same proceedings. If the Court wants to proceed against the persons of giving dowry, then it has to resort to the provision under Section 7 of the Act. Section 7(1)(b) of the Act provides that no Court shall take cognizance of an offence under this Act except upon its own knowledge, or a police report of the facts which constitute such offence, or a complaint by the person aggrieved by the offence or other relative of such person or by any recognized welfare institution or organization.
Further Section 7(3) of the Act provides that notwithstanding anything contained in any law for the timebeing in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.
Fundamental mistake in this case is, why police are NOT booking the Dowry givers asmushas Dowry takers in the FIR? Because in some States, Police circulars were issues precluding the Dowry givers from prosecution. So Police themselves decided that Dowry givers are not to be booked, which is totally contrary to what is said in Section 3(1).
Citations: [2004 DMC 2 49], [2003 ALD 2 91], [2003 ALT CRI 2 253]
Other Source links:
https://www.casemine.com/judgement/in/5608f83ce4b0149711141d5d
https://indiankanoon.org/doc/91122848/
