I recently came across two decisions of the Supreme Court in the context of Section 304-B IPC - Rajbir & Ors v. State of Haryana [the relevant interim order being reported as AIR 2011 SC 568] and Jasvinder Saini v. State [AIR 2014 SC 841]. Not only do these decisions present an interesting and important question of law, but also raise important questions of how the Supreme Court chooses to exercise its vast powers in our hierarchical judicial system.
In Rajbir, Petitioner No. 1 was convicted inter alia under Section 304-B, and High Court had reduced a sentence of life imprisonment to rigorous imprisonment for ten years. While issuing notice to the First Petitioner for why his sentence ought not to be enhanced to life imprisonment, a Division Bench of the Supreme Court passed some very interesting observations in the interim order: "We further direct all trial courts in India to ordinarily add Section 302 to the charge of Section 304B [IPC], so that death sentences can be imposed in such heinous and barbaric crimes against women".
Not surprisingly, trial courts adhered to these observations and begun to add charges under Section 302 IPC when faced with cases under Section 304B. It was against one such order of additional charges that the Petitioner moved the Supreme Court in Jasvinder Saini. The Supreme Court clarified that there could be no mechanical application of the observations in Rajbir. The observations merely warranted trial courts to investigate the material carefully to discern whether charges under Section 302 could be framed.
The Legal Issue
The dictum in Rajbir brought forth a difficult situation because of the different ingredients required for proving an offence under Section 302 and Section 304-B IPC. The latter significantly reduces the burden on the prosecution to prove its case; shifting the burden on an accused when the prosecution establishes the facts made relevant by the provision. No such reverse burden is placed by Section 302. But following Rajbir, the prosecution can establish a case under Section 304-B, to actually secure a conviction for both Section 304-B and 302 IPC and possibly merit a death sentence.
Thankfully, the Court in Jasvinder Saini was aware of this problem and specifically addressed it:
"If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 Indian Penal Code the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 Indian Penal Code, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established".
Thus, the Prosecution was disabled from taking undue advantage of the reverse burden imposed purely to serve the peculiar cases of dowry deaths.
The Policy Conundrum
A larger issue came to the fore in this exchange: the Supreme Court's displeasure at the supposedly lenient penalties carried by Section 304-B. This was not the first occasion where the Court expressed its hesitation, nor will it be the last. Unlike most of us, the Apex Court can do something when it doesn't like the law through Article 141. It doesn't require much argument to convince someone that criminal law and possible deprivation of liberty should not be open to judicial legislation. But history points to the contrary for India, with the Court having to step in to cover legislative lethargy far too often. Elected representatives took 15 years to replace the judicial laws of Vishaka, and have never bothered to incorporate the amendments initially sought by the bench in Velliappa Textiles [its later overruling notwithstanding].
With the boundaries of criminal law ever-expanding, one can only wait and see how active a mantle the legislature assumes in settling the disputes raised before the courts.