Holding

Section 304‑B IPC is a substantive new offence and, being prospective, cannot be applied to conduct that occurred before its enactment, as that would breach Article 20(1).

Summary

The petitioner’s daughter died in August 1986 and the petitioner filed a criminal complaint under Section 498-A IPC. After the Dowry Prohibition (Amendment) Act, 1986 inserted Section 304‑B IPC (dowry death) with effect from 19 November 1986, the petitioner sought to have the case transferred to a Court of Session for trial under the new provision. Both the magistrate and the Gujarat High Court dismissed the application, holding that the amendment was prospective and could not apply to a death that occurred before its insertion. The Supreme Court examined whether Section 304‑B creates a new substantive offence or merely a rule of evidence and whether its retrospective application would violate Article 20(1) of the Constitution. The Court held that Section 304‑B is a substantive new offence, not just an evidentiary rule, and that applying it to acts committed before its enactment would contravene the constitutional protection against retrospective penal legislation. Consequently, the appeal was dismissed, leaving the respondents to be tried only under the pre‑existing Section 498‑A.

Issues considered

Whether Section 304‑B IPC, inserted in 1986, is applicable to a death that occurred prior to its insertion.
Whether Section 304‑B creates a new substantive offence or merely a rule of evidence.
Whether the prospective operation of Section 304‑B would violate Article 20(1) of the Constitution.

Legislation cited

Constitution of Indias. Article 20(1)
Criminal Law (Second Amendment) Act, 1983
Dowry Prohibition Act, 1961
Dowry Prohibition (Amendment) Act, 1986
Indian Evidence Act, 1872s. 113-B
Indian Penal Code, 1860s. 304-B, s. 34, s. 498-A

Subjects

dowry deathretrospective lawArticle 20Section 304-BSection 498-Acriminal procedureevidentiary presumptionsubstantive offenceprospective legislation

Judgment

SONI DEVRAJBHAI BABUBHAI
A
v.
STATE OF GUJARAT AND ORS.

AUGUST 28, !991

B [LAUT MOHAN SHARMA AND J.S. VERMA, JJ.]

Indian Penal Code,.~60: Section 304-B (As inserted by Act 43 DJ
1986)-Scope and object of-Dowry death-Death occuring prior to
insertion of Section 3[J4:B-Section 304-B held prospective and conse-
quently inapplicable-It contains a substantive provision creating a new
offence and does not merely effect a procedural change for trial of
c pre-existing substantive offence ..

Indian Evidence Act, 1872: Section 113-B. Presumption as to
dowry death-Section 113-B contains rule of evidence to prove the
offence of dowry death.
D
Dowry Prohibition Act, 1961: Purpose of.

Constitution of India, 1950: Article 20( 1) Protection against con-
viction for a new offence created subsequent to the commission of
offence. ·~
E
Appellant's daughter was married to respondent No. 2 on
15.12.1984. She died on 13.8;1986. The appellant filed a criminal comp-.
lain! against the respondents viz. daughter's husband and his relatives
for an offence under section 498-A, triable by a Magistrate of First
Class, read with section 34 of the Indian Penal Code, 1860 alleging that
F his daughter's. death was unnatural resulting from torture by her -l.
husband and his relatives. By Act No. 43 of 1986, the Indian Penal Code
was amended and Section 304-B, offence of dowry death, was inserted
in the Code w.e.f. 19.11.'1986. Since the newly inserted offence of dowry
death was triable by a Court of Session, the appellant filed an applica-
tion. before the Magistrate for committing the case to the Court of
G Session for trial of offence under section 304-B. The Magistrate dismis-
sed his application by holding that the amendment being prospective
was inapplicable to the case because the death had occurred prior to the
amendment. Thereafter the appellant filed an application in the High
Court for a direction to commit the case of dowry death to the Court of.
Session ..The High Court also dismissed his application by holding that
H since the offence was committed prior to the date of inser.tion of section

812
DEVRAJBHAI v. STATE OF GUJARAT 813

304-B, the section was not applicable to the case. In appeal to this Court
A
on the question whether section 304-B of the Indian Penal Code was
-I applicable to a case of dowry death where the death has occurred prior
to the insertion of Section 304-B, it was contended on behalf of the
appellant that section 304-B of the Indian Penal Code does not create a
new offence and contains merely a rule of evidence.
B
Dismissing the appeal, this Court,

-
HELD: I. The offence of dowry death punishable under section
304-B of the Indian Penal Code is a new offence inserted in the Code
with effect from 19.11.1986 when Act No. 43 of 1986 came into force.
~
The said offence is punishable with a minimum sentence of seven years
which may extend to life imprisonment and is triable by Court of c
Session. The corresponding amendments made by Act No. 43 of 1986 in
the Code of Criminal Procedure and the Indian Evidence Act relate to
· the trial and proof of the offence. Section 498-A inserted in the Indian
Penal Code by the Criminal Law (Second Amendment) Act, 1983 is an
offence triable by a Magistrate of the First Class and is punishable with D
imprisonment for a term which may extend to three years in addition to
line. The offence of dowry death punishable under section 304-B pro-
\ vides for a more stringent offence than section 498-A. Section 304-B is a
substantive provisiOn creating a new offence and not merely a provision
effecting a change in procedure for trial of a pre-existing substantive
offence. The rule of evidence to prove the offence of dowry death is E
contained in section 113-B of the Indian Evidence Act providing for
presumption as to dowry death which was a simultaneous amendment
made in the Indian Evidence Acf for proving the offence of dowry
~~ death. The fact that the Indian Evidence Act was so amended simnl-
taneously with the insertion of section 304-B in the Indian Penal Code
by the same Amendment Act is another pointer in this direction. There- F
fore, it cannot be held that section 304-B does not create a new offence
and contains merely a rule of evidence. [818D-F, 819C-D]

2. The respondents are being tried in th,e Court of Magistrate of
.the First Class for the offence punishable under section 498-A which
was in the statute book on the date of death of Appellant's daughter. G
•• Their trial and punishment for the offence of dowry death provided in
section 304-B of the Indian Penal Code with the minimum sentence of
seven years' imprisonment for an act done by them p~ior to creation of ·
the new offence of dowry death would clearly deny lo them the protec-
tion afforded by clause (1) of Article 20 of the Constitution. Accord-
ingly, the view taken by the High Court that the respondents cannot he H
814 SUPREME COURT REPORTS [1991] 3 S.C.R.

tried and punished for the offence provided in section 304-B of the
A
Indian Penal Code which is a new offence treated subsequent to the
commission of the offence attributed to the respondents does not suffer
from any infirmity. l818E, G, 819E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
B No. 533 of 1991.

From the Judgment and Order dated 10.1.1989 of the Gujarat
High Court in Miscellaneous Criminal Application No. 32 of 1989.

H.S. Zaveri for the Appellant.
c Dushayant Dave,. Ashish Verma and Anip Sachthey for the
Respondents.

The Judgment of the Court was delivered by

D VERMA, J. Petitioner's daughter Chhaya was married to
Respondent No. 2 Satish on 5.12.1984 and they started living together
in their marital home at Bagasara. On 13.8. 1986, Chhaya died at
Bagasara. The petitioner and his wife got some vague information
about their daughter Chhaya and went to Bagasara, the same day but
were unable to meet or see their daughter who had died. The
E petitioner suspected that their daughter's death was unnatural result-
ing from torture by her husband and his relatives. The petitioner filed
a criminal complaint against Respondent Nos. 2 to 5, who are the
husband, his parents and sister which was transferred to the Court of
Judicial Magistrate First Class at Dhari and registered as Criminal , ,.,
Case No. 382 of 1988 for an offence under section 498-A read with
F section 34 I.P.C. The petitioner filed an application for committing the
case to the Court of Session for trial for an offence punishable under
section 304-B 1.P.C. which was inserted in the Indian Penal Code by
Act No. 43 of 1986 w.e.t. 19.11.1986. On 29.11.1988, the Learned
Magistrate dismissed the petitioner's application holding that this
amendment being prospective was inapplicable to a death which occur-
G red on 13.8.1986, prior to the amendment. Aggrieved by this order,
the petitioner moved an application (Misc. Criminal Application No.
· 32 of 1989) in the High Court of Gujarat for a direction to c0 mmit this
case of dowry death to the Court of Session since an offence punish-
able under section 304-B is triable by the Court of Session. By the
impugned order dated January 10, 1989, the High Court has dismissed
H that application. Hence this special leave petition.
DEVRAJBHAI v. STATE OF GUJARAT (VERMA, J.] 815

Leave is granted.
A
The point arising for our decision is the applicability of section
304-B of the Indian Penal Code to the present case where the death
alleged to be ·a dowry death occurred prior to insertion of section
304-8 in the Indian Penal Code. This is the only ground on which the
appellant claims trial of the case in the Court of Session. B

The reason given by the High Court to support its view is that the
offence was committed prior to the date of insertion of section 304-B
in the Indian Penal Code on account of which the section can have no
application to the present case. None of the courts below has examined
the applicability of any other pre-existing more stringent provision
even if section 304-B does not apply. As such affirmation of the view
c
that section 304-B does not apply, will not preclude the appellant from
contending that any other more stringent provision is attracted on the
accusation made. If that point is raised, the courts below wiil have to
decide the same on merits on the basis of accusation made. It is in this
background that the point raised by the appellant regarding applicabi- Q
lity of section 304-B is decided by us.

Section 304-B and the cognate provisions are meant for eradica-
tion of the social evil of dowry which has been the bane of Indian
society and continues unabated in spite of emanicipation of women
and the women's liberation movement. This all prevading malady in j
our society has only a few lucky exception in spite -:>f equal treatment
and opportunity to boys and girls for education and career. Society
continues to perpetuate the difference between them for the purpose
- _.k of marriage and it is this distinction which makes the dowry system
thrive. Even though for eradication of this social evil, effective steps
can be taken by the society itself and the social sanctions of the com- f
munity can be more deterrent, yet legal sanctions in the form of its
prohibition and punishment are some steps in that direction, The
Dowry · Prohibition Act, 1961 was enacted for this purpsoe. The
Report of the Joint Committee of Parliament quoted the observations
of Jawaharlal Nehru to indicate the role of legislation in dealing with
the social evil as under: G

.. Legislation cannot by itself normally solve deep-rooted
social problems. One has to approach them in other ways
too, but legislation is necessary and essential, so that it may
give that push and have that educative factor as well as the
legal sanctions behind it which help. public opinion to be H
given a certain shape. "
816 SUPREME COURT REPORTS [19911 3 S.C.R.

A The enactment of Dowry Prohibition Act, 1961 in its original
form was found inadequate. Experience shows that the demand of
dowry and the mode of its recovery takes different forms to achi~ve
the same result and various indirect and sophisticated methods are
being used to avoid leaving any evidence of the offence. Similarly, the
consequences of non-fulfilment of the demand of dowry meted out to
B
the unfortunate bride takes different forms to avoid any apparent
. ca:isal connection ~etween the demand of dowry .and its prejudicial
effect on the bride. This experience has led to several other legislative
measures in .t he continuing battle to combat this evil.

The Criminal Law (Second Amendment) Act, 1983 (No. 45 of
C 1983) was an act further to amend the Indian Penal Code, the Code of
Criminal Procedure, 1973 and the Indian Evidence Act, 1872. Secti~n
498-A was inserted in the Indian Penal _Code and corresponding
amendments were made in the Code of Criminal Procedure which
included section 198A .therein and also inserted section ·113A in the
b. Indian Evidence Act, 1872. Thereafter; the Dowry Prohibition
(Amendment) Act, 1986 (No. 43 of 1986) was enacted further to
amend the Dowry Prohibition Act, 1961 and to make certain necessary
changes in the Indian Penal Code," the Code of Criminal Procedure,
1973 and the Indian Evidenc~ Act, 1872.

Two .of the salient features of the Dowry Prohibition (Amend-
ment) Act, 1986 (No. 43 of 1986) stated in the Statement of Objects
and Reasons of the Bill are as under:

"(e) Offences under the Act are proposed to be
made non-bailable.
F " (g) A new offence of "dowry death" is proposed to
be included in the Indian Penal Code and the necessary
consequential amendments in the Code of Criminal Proce-
dure, 1973 and in the Indian Evidence Act, 1872 have also
been proposed."

G Accordingly by section 7 of the Amendment Act, section 8 of the
Dowry Prohibition· Act, 1961 was amended to make every offence
under this Act non-bailable while continuing it to be non-compoun-
dable. By sections 10, 11 and U, amendments were made in the Indian
Penal Code, Code of Criminal Procedure, 1973 and the Indian
H Evidence Act, 1872, as part of the same scheme as follows:
DEVRAJBHAI v. STATE OF GUJARAT [VERMA, J.) 817

"10. In the Indian Penal Code, after, section 304-A,
A
the following section shall be inserted, narnely:

'304-B. Dowry death. (1) Where the death of a
woman is caused by any burns or bodily injury or occurs
otherwise then .under normal circumstances within seven
years of her marriage and it is shown that soon before her B
death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connec-
tion 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,
c
"dowry" shall have the same meaning as m section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less than D
seven years but which may extend to imprisonment for
life'."

"11. In the Code of Criminal Procedure, 1973, in the
First Schedule after the entries relating to section 304-A,
the following entries shall be inserted, namely: E

Section Offence Punishment Cognizable Bailable or By what
or non- non-bail- Court
cognizable able tribale
--------------------------------------------------------------------------------------------- F
1 2 3 4 5 6

"304-B Dowry Imprison- Ditto Non- Court of
death mentofnot bailable · Session."
less than
seven years G
butwhiCh
may extend
to imprison-
ment for life.

"12. In the Indian Evidence. Act, 1872, after section H
818 SUPREME COURT REPORTS· [1991] 3 S.C.R.

113-A, the following section shaHbe inserted, namely:-

·'113-B. 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
B death such woman has been subjected by such person to
cruelty or harassment for, or in connecting with, any
demand for dowry, the Court shall. presume that such
person had caused the dowry death.

Explanation.-For the purpose of this section, "dowry
death" shall have the same meaning as in section 304-B of
c the Indian Penal Code (45of1860)."

It is clear from the above historical background that the offence
of dowry death. punishable under section 304-B of the Indian Penal
Code is a new offence inserted in the Indian Penal Code with effect
D from 19.11.1986 when Act No. 43 of 1986 came into force. The offence
under section 304-B is punishable with a minimum sentence of seven
years which may extend to life imprisonment and is triable by Court of
Session. The corresponding amendments made in the Code of Crimi-
nal Procedure and the Indian Evidence Act relate to the trial and proof
of the offence. Section 498-A inserted in the Indian Penal Code by the
Criminal Law (Second Amendment) Act, 1983 (Act No. 46 of 1983) is
E
an offence triable by a Magistrate of the First Class and is punishable
with imprisonment for a term which may extend to three years in
addition to fine. It is for the offence punishable under section 498-A
which was in the statute book on the date of death of Chhaya that the
respondents are being tried in the Court of Magistrate of the First
Class. The offence punishable under section 304-B, known as dowry
F
death, was a new offence created with effect from 19.11.1986 by inser-
tion of the provision in the Indian Penal Code providing for a more
stringent offence than section 498-A. Section 304-B is a substantive
provision creating a new offence and not merely a provision effecting a
change in procedure for trial of a pre-existing substantive offence.
Acceptance of the appellant's contention would amount to holding
G
that the respondents can be tried and punished for the offence of
dowry death provided in section 304-B of the Indian Penal Code with
the minimum sentence of seven years' imprisonment for an act done t>y
them prior to creation of the new offence of dowry death. In O\lr
opinion, this would clearly deny to them the protection afforded by
H clause ( 1) of Article 20 of the Constitution which reads as under:
DEVRAJBHAI v. STATE OF GUJARAT (VERMA, J.J 819

"20. Protection in respect of conviction for offences. A
-( 1) No person shall be convicted of any offence except
for violation of the law in force at the time of the commis-
sion of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted
.under the law in force at the time of the commission of the
B
offence."

In our opinion, the protection given by Article 20(1) is a complete
answer to the appellant's contention. The contention of learned
counsel for the appellant that section 304-B inserted in the Indian
Penal Code does not create a new offence and contains merely a rule
of evidence is untenable. The rule of evidence to prove the offence of c
dowry death is contained in section 113-B of the Indian Evidence Act
providing for presumption as to dowry death which was a simultaneous
amendment made in the Indian Evidence Act for proving the offence
of dowry death. The fact that the Indian Evidence Act was so amended
simultaneously with the insertion of section 304-B in the Indian Penal
Code by the same Amendment Act is another pointer in this direction.
This contention is, therefore, rejected.

In follows that the view taken by the High Court that the respon-
dents cannot be tried and punished for the offence provided in section
304-B of the Indian Penal Code which is a new offence created subse-
quent to" the commission of the offence attributed to the respondents E
does not suffer from any infirmity. However, as earlier indicated, in
case the accusation against the respondents discloses commission of
any other more stringent pre-existing offence by the respondents than
section 498-A of the Indian Penal Code, the appellant would be
entitled to raise that question and the Court will then consider and
decide it on that basis. No such argument having been advanced before F
us or any of the courts below so far, the same does not arise for
consideration in the present proceeding. With these observations, the
appeal is dismissed.

T.N.A. '
Appeal dismissed.