An application under Section 528 of Bhartiya Nagarik Suraksha Sanhita 2023/ Section 482 of Cr.P.C. 1973 may be preferred before the Allahabad High Court with a prayer for quashing the entire proceedings arising out of a First Information Report registered under Section 80 of Bhartiya Nyaya Sanhita 2023/ Section 304B of the Indian Penal Code 1860.
What are the penal provisions regarding Dowry Death?
Section 80 of Bhartiya Nyaya Sanhita 2023 provides as follows:
“Dowry death –
- Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation: For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.
- Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
The offence is cognizable, non-bailable, and triable by the Court of Sessions.
Section 80 of the Bhartiya Nyaya Sanhita is identical to Section 304B of the Indian Penal Code 1860. Hence, the ingredients of the offence under Section 80 BNS are the same as under Section 304B of the Indian Penal Code. The ingredients are as follows:
- that soon before the death, the deceased was subjected to cruelty and harassment in connection with the demand of dowry;
- the death of the deceased was caused by any burn or bodily injury or some other circumstance which was not normal;
- such a death has occurred within 7 years from the date of her marriage;
- that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
- such a cruelty or harassment should be for, or in connection with the demand of dowry; and
- it should be established that such cruelty and harassment were made soon before her death.
Another pertinent provision when dealing with dowry death cases is Section 113B of the Indian Evidence Act or Section 118 of the Bhartiya Sakshya Adhiniyam 2023. The provisions are identical except for the necessary change of the corresponding provision in the Bhartiya Nyaya Sanhita.
Section 118 of BSA is as follows:
“118. 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 had 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 80 of the Bharatiya Nyaya Sanhita, 2023.”
The legislative intent behind the aforesaid presumption is to curb the menace of dowry deaths with a firm hand. It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to obtain. That is why the legislature has, by introducing sections 113A and 113B in the Evidence Act, tried to strengthen the prosecution’s hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage.
Writ Petition before the Allahabad High Court
A writ petition may be preferred before the Allahabad High Court praying for quashing of the First Information Report registered against the accused persons regarding the matter of dowry death.
Such a criminal writ petition must contain a prayer for quashing the first information report, on the grounds as are available under the State of Haryana vs. Bhajan Lal case.
However, it is pertinent to point out that the case of dowry death is a serious matter, and the High Court is slow in interfering with the investigation in light of the law laid down in M/s. Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra.
Application under Section 528 BNSS before the High Court for quashing the entire proceeding
An application under Section 528 of BNSS may be filed before the Allahabad High Court after the chargesheet is submitted before the concerned magistrate, and the accused has been summoned by the trial court to face trial. In this regard, the summoning order and the chargesheet are the primary documents which are challenged.
The grounds of challenge vary with respect to the facts and circumstances of the case, which include whether a cognizable offence has been made out or not, whether the ingredients of the offence have been made out or not, and whether the proceedings are a means to wreak vengeance, among other things.
Charge under Section 80 BNS (Section 304B) and Section 103(1) of BNS (302 IPC)
Many petitions under Section 528 BNSS are filed before the Allahabad High Court concerning the framing of a charge under Section 304B or Section 302 of the Indian Penal Code. This may sometimes also concern the addition or alteration of charges, or it may concern the framing of charges.
The Hon’ble Apex Court has settled the law in various judgments, wherein it has been held that mechanical addition of Section 302 of the Indian Penal Code (now Section 103(1) of BNS). This is because there are several instances where murder may not be proven, but all the conditions of dowry death are met.
In such a case, an application under Section 528 BNSS may be preferred with the prayer for quashing the proceeding to the extent of the charge of Murder, if murder is neither alleged, nor prima facie the offence is made out.
To conclude, powers under Section 528 BNSS may be exercised sparingly only in legitimate cases, as matters involving dowry death are serious and concerning matters, as our government, judiciary, and administration, collectively, are making efforts to curb the menace of dowry deaths.