Jharkhand High Court: Anubha Rawat Choudhary, J., acquitted a person convicted under Section 497 of IPC contrary to the law laid down by the Supreme Court in Joseph Shine v. Union of India, (2019) 3 SCC 39, wherein Section 497 of IPC had been declared unconstitutional by the Supreme Court. The Bench stated,
“As per Article 141 of the Constitution, the law declared by the Supreme Court is binding on all the courts within the territory of India and the law laid down by the Supreme Court applies to all pending proceedings.”
The instant revision petition had been filed to assail the judgement of Additional Sessions Judge-VII, in Criminal Appeal whereby the Sessions Court had affirmed the judgment of conviction and the order of sentence of the petitioner under Section 497 of the Penal Code, 1860 passed by the Trial Court.
The prosecution case was that the Informant’s wife namely, Nirmala Devi was absent in his house since 25-12-2000 at about 06:00 pm and he was informed by his nephew that on the same day, Nirmala Devi had fled away from the house towards south with the petitioner and when he saw her and asked her as to where she was going, they scolded him and told him not to disclose to anyone and after showing an arm, the petitioner threatened to kill him. It was further alleged that there was illicit relationship between Nirmala Devi and the petitioner. The Trial Court convicted the petitioner under Section 497 and sentenced him to undergo Rigorous Imprisonment for two years. However, the Trial Court acquitted Nirmala Devi from the charges under Sections 497 and 380 of Penal Code and also acquitted the petitioner from the charge under Section 380.
The grievance of the petitioner was that he had been convicted under Section 497 which had been declared unconstitutional by the Supreme Court in the case of Joseph Shine v. Union of India, (2019) 3 SCC 39, and therefore, once the Section itself had been declared ultra-vires to the Constitution, no conviction under Section 497 could be sustained. The Bombay High Court in Rupesh v. Charandas, 2018 SCC OnLine Bom 6292, had followed the judgment of the Supreme Court passed in the case of Joseph Shine case and had set aside the conviction and sentence under Section 497 of the Penal Code under revisional jurisdiction. The petitioner further contended that the evidences on record would show that the he had been convicted on the basis of hearsay evidence and presumption and accordingly, the prosecution had not been able to prove the case beyond all reasonable doubt.
Findings of this Court
The Court opined that the Supreme Court had struck down Section 497 as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution of India; Section 198(2) CrPC, which contains the procedure for prosecution under Chapter XX IPC was also held to be unconstitutional only to the extent that it is applicable to the offence of adultery under section 497 IPC. As per Article 141 of the Constitution, the law declared by the Supreme Court is binding on all the courts within the territory of India and such law applies to all pending proceedings.
Upon perusal of the aforesaid decision of the Supreme Court in Joseph Shine case, the Bench stated that,
“There is no indication that the same would apply prospectively and there is nothing like any prospective operation of law laid down by the Supreme Court.”
Hence, the Court was of the view that the instant revision petition was admitted on 06-12-2013 and the petitioner was directed to be released on bail. During the pendency of the revision petition, the section in which the petitioner was ultimately convicted i.e Section 497 IPC, had been declared to be unconstitutional in the case of Joseph Shine v.Union of India,(2019) 3 SCC 39. Therefore, the Court held that the conviction and sentence of the petitioner under Section 497 of was legally not sustainable and both the impugned judgments and sentence need to be interfered under revisional jurisdiction to prevent miscarriage of justice to the petitioner. Accordingly, the impugned judgment and order was set aside and the petitioner was discharged from the liability of his bail bond.[August Kumar Mehta v. State of Jharkhand, 2021 SCC OnLine Jhar 429, decided on 23-06-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Petitioner: Advocate Amit Kumar Das
For the State-Opp. Party: A.P.P. Vandana Bharti