JUDGMENT
Anand Prasad Sinha, J.
1. This application is directed against the order dated 13.6.1982 passed by Sri S.K. Sinha, Judicial Magistrate 1st Class, Sahibganj, in P.C.R. Case No. 26 of 1982 by which the learned Magistrate has taken cognizance for the offences punishable under Section 4 of the Dowry Prohibition Act, 1961 (hereinafter to be referred to as ‘the Act’).
2. It appears that the case has been initiated on the basis of a complaint petition filed by opposite party No. 2 in which he had alleged that the petitioners had demanded dowry for the marriage of petitioner Gurucharan Paswan with the cousin sister of the complainant. Being aggrieved by this demand and that being illegal, the complaint has been filed, as stated above. The matter was sent for enquiry and after examination of four witnesses, the cognizance has been taken by the impugned order, as mentioned above.
3. Section 4 of the Act reads as follows:
4. Penalty for demanding dowry:–If any person, after the commencement of this Act, demands, directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be, punishable with imprisonment which may extend to six months, or with One which may extend to five thousand rupees, or with both:
Provided that no Court shall take cognizance of any offences under this Section except with the previous sanction of the State Government or of such officer as the State Government may by general or special order, specify in this behalf.
4. Learned Counsel appearing on behalf of the petitioners has challengedthe impugned order on the ground that no previous sanction had been obtained from the State Government as provided under the proviso to Section 4 of the Act.
5. It appears that by notification No. S.O. 178 dated the 28th January, 1977 published in Bihar Gazette Part II dated February 2, 1977 at page 124, the State Government has conferred the power upon the District Magistrate for according sanction in such cases. The said notification reads as follows:
S.O. 178, dated the 28th January, 1977, published in Bihar Gazette, Part II, dated February 2, 1977 at page 124–In exercise of the powers conferred by Section 4 of the Dowry Prohibition Act, 1961 (Act XXVII of 1961) as substituted by Section 3 of the Dowry Prohibition (Bihar Amendment) Act, 1975 (Bihar Act IV of 1976), the Governor of Bihar is pleased to order that the District Magistrate of all the district shall exercise the powers to accord previous sanction for prosecution in respect of offences under this section within the local limits of their respective jurisdiction.
6. It may be appreciated that the question of sanction does not arise, if the offence is committed under Section 3 of the Act. Section 3 of the Act reads as follows:
3. Penalty for giving or taking dowry–If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.
7. That being so, the provision of sanction has been incorporated specially for the offence under Section 4 of the Act, which must be for safeguarding against false and fictitious allegations which are expected under certain circumstances to evolve when there is failure of negotiations for marriage. Under the circumstances, the intention of the Act appears to be that sanction should be a condition precedent and that also springs from the language of the proviso to Section 4 of the Act as there Is mention of a word ‘previous sanction’.
8. That being so, I have no hesitation in saying that the impugned order, in absence of the sanction, is definitely bad in law. In other words, such prosecution can be only be initiated, if previous sanction is obtained by the District Magistrate.
9. In the result, the application is allowed and the impugned order of cognizance is hereby set aside.