As provided in Article 141 of the constitution of India, all courts within the territory of India have a law declared binding under the Hon’ble Supreme Court and all pending proceedings have a law established by the Hon’ble Supreme Court. When the above-mentioned decision of the Hon’ble Supreme Court has been examined, there is no sign that it will apply in the future, and no prospective operation of the law established by the Hon’ble Supreme Court is the same. The case of Mayor Genl. A.S. Gauraya and Another – versus- S.N. Thakur, was referred to in this respect by Justice Anubha Rawat of the Jharkhand High Court in the matter of August Kumar Mehta versus State of Jharkhand [Cr. Rev. No. 1081 of 2013].
This order was passed for the facts that the learned counsel appearing at the beginning submitted that the petitioner was found to be unconstitutional in the case Joseph Shine – versus- Union of India on 27 September 2013, (2019) 3 SCC 39 and therefore once the Section itself was ultra vires, it was convicted of a conviction in accordance with the terms of Section 497 of the Indian Penal Code. The petitioner was found unconstitutional in that case.
Learned counsel for the petitioner also referred to the judgement passed by the Hon’ble Bombay High Court in the case of Rupesh -versus- Shri Charandas , 2018 SCC OnLine Bombay 6292 wherein the Judgment of the Hon’ble Supreme Court passed in the case of Joseph Shine (Supra) has been followed and the conviction and sentence under Section 497 of the Indian Penal Code has been set aside under revisional jurisdiction.
Learned counsel appearing on behalf of the State, on the other hand, objected to the prayer and argued that both the following learned courts had recorded concurrent findings of facts, which is why in this case no interference is required under review. However, in the event of Joseph Shine versus the Union of India the Hon’ble Supreme Court has made Section 497 of the Indian Penal Code unconstitutional.
After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case the Court has concluded that this proceeding has been based on a written report of 06/01/2001 lodged with the Information Man, namely that Arun Kumar Mehta (PW-8) has alleged inter alia that the Informant’s wife Nirmala Devi, who had been absent from the house since 25 December 2000 at around 6:00 p.m. Nirmala Devi and the petitioner allegedly had illegal relations.
The Court considered the oral and documentary evidence submitted on behalf of the prosecution as well as documentary evidences submitted on behalf of the petitioner, and condemned the petitioner for a two-year offence pursuant to Article 497 of the Indian Penal Code, and sentenced him to Rigorous Imprisonment. However, Nirmala Devi was acquitted of charges laid down in Articles 497 and 380 of the Indian Penal Code by the learned court and also acquitted the petitioner of the charge under the Indian Penal Code of Section 380.
After going through the judgements passed by the Hon’ble Supreme Court in the case of Joseph Shine (supra), this Court finds that the Hon’ble Supreme Court has struck down Section 497 IPC as unconstitutional being violative of Articles 14,15 and 21 of the Constitution of India; Section 198(2) Cr.P.C., 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 AND decision passed in the case of Sowmithri Vishnu versus Union of India 1985 Supp SCC 137, V. Revathi versus Union of India (1988)2 SCC 72 and W. Kalyani versus State (2012) 1 SCC 358 were overruled.
The impugned Judgment of 01.2013, adopted in accordance with Section 497 of the Indian Penal Code by the learned judicial magistrate of the first class, Dalonganj, Palawa’s conviction, and the sentence, passed under Section 497 of the Independent Penal Code, is the same as that of the learned judge in the Daltonj Criminal Appeal No. 90/2008. The petitioner is therefore released from his bail bond liability.
