Conviction or sentence under a revoked law is not sustainable: High Court of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 10813 August Kumar Mehta son of Lalan Mehta resident of Village Lohra P.O. & P.S. Lesliganj District Palamau … … Versus The State of Jharkhand CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY … … Opp. Party For the Petitioner For the State Opp. Party Mr. Amit Kumar Das Advocate Mrs. Vandana Bharti A.P.P. Through Video Conferencing 1. Heard Mr. Amit Kumar Das the learned counsel appearing for the petitioner. 2. Heard Mrs. Vandana Bharti the learned A.P.P. appearing on behalf of the State Opposite Party. The present criminal revision petition is directed against the Judgement dated 01.10.2013 passed by the Additional Sessions Judge VII Palamau at Daltonganj in Criminal Appeal No. 90 2008 whereby the learned appellate court affirmed the Judgment of conviction and the order of sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court and dismissed the criminal appeal. The learned trial court vide Judgment of conviction and the order of sentence dated 17.07.2008 passed by the learned Judicial Magistrate 1st Class Daltonganj Palamau in G.R. Case No. 301 Trial No. 1608had convicted the petitioner for the offence under Section 497 of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for two years under Section 497 of the Indian Penal Code. Arguments on behalf of the petitioner Learned counsel appearing for the petitioner at the outset submitted that the petitioner has been convicted under Section 497 of the Indian Penal Code which has been declared unconstitutional by the Hon’ble Supreme Court in the case of Joseph Shine versus Union of India decided on 27.09.2018 reported in3 SCC 39 and therefore once the Section itself has been declared ultra vires to the Constitution no conviction under Section 497 of the Indian Penal Code can be sustained. 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 reported in 2018 SCC OnLine Bombay 6292 wherein the Judgment of the Hon’ble Supreme Court passed in the case of Joseph Shine has been followed and the conviction and sentence under Section 497 of the Indian Penal Code has been set aside under revisional jurisdiction. 7. He further submitted that for securing the ends of justice the conviction and sentence of the petitioner under Section 497 of Indian Penal Code is fit to be set aside. The learned counsel for the petitioner further submitted that otherwise also the petitioner has a good case on merit as evidences on record show that the petitioner has been convicted on the basis of hearsay evidence and on presumption and accordingly the prosecution has not been able to prove the case beyond all reasonable doubt. Arguments on behalf of the Opposite Party State Learned counsel appearing on behalf of the State on the other hand opposed the prayer and submitted that both the learned courts below have recorded concurrent findings of facts and accordingly no interference is called for in the present case under revisional jurisdiction. However it is not in dispute that Section 497 of the Indian Penal Code has been declared unconstitutional by the Hon’ble Supreme Court in the case of Joseph Shine versus Union of India. Findings of this Court 10. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case this Court finds that the prosecution case is based on the written report dated 06.01.2001 lodged by the Informant namely Arun Kumar Mehta alleging inter alia that the Informant’s wife namely Nirmala Devi was absent in his house since 25.12.2000 at about 06:00 P.M. and he was informed by his sister’s sonthat on the same day the Informant’s wife has fled away from the house towards south with the petitioner and when he saw her and asked her as to where she is going then 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. 11. On the basis of the written report the case was registered as Lesliganj P.S. Case No. 01 2001 dated 06.01.2001 under Sections 497 380 of the Indian Penal Code against the petitioner and Nirmala Devi. 12. After completion of investigation the Investigating Officer submitted charge sheet under the same sections against the petitioner and Nirmala Devi. Accordingly the learned I C C.J.M. Palamau at Daltonganj took cognizance of the offence under the same sections against them on 24.04.2001. 13. On 21.09.2001 the charges under Sections 497 380 of the Indian Penal Code were framed against the petitioner and Nirmala Devi which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. In course of trial the prosecution examined altogether 08 witnesses to prove its case. P.W. 1 is Girja Devi P.W. 2 is Anirudh Mehta P.W. 3 is Nathuni Mahto P.W. 4 is Anup Mahto P.W. 5 is Rupwant Kumar P.W. 6 is Ram Kumar Mehta P.W. 7 is Basisth Kumar Mehta and P.W. 8 is Arun Kumar Mehta who is the Informant himself. The prosecution exhibited the written report of the Informant as Exhibit 1. 15. On 07.04.2008 and 26.04.2008 the statements of the petitioner and Nirmala Devi were recorded under Section 313 of Cr.P.C. wherein the petitioner denied the incriminating evidences put to him and claimed to be innocent. The petitioner did not adduce any oral evidence in his defence but exhibited certified copy of order dated 06.05.2003 passed by the District Judge Palamau in Matrimonial Case No. 5 2001 as Exhibit A. 16. The trial court considered the oral and documentary evidences adduced on behalf of the prosecution and the documentary evidence adduced on behalf of the petitioner as well as the arguments advanced on behalf of the parties and convicted the petitioner for the offence under Section 497 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for two years. However the learned trial court acquitted Nirmala Devi from the charges under Sections 497 and 380 of the Indian Penal Code and also acquitted the petitioner from the charge under Section 380 of the Indian Penal Code. 17. This Court further finds that the learned appellate court also considered the evidences adduced on behalf of the parties and the arguments advanced on their behalf and affirmed the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court. 18. After going through the judgment passed by the Hon’ble Supreme Court in the case of Joseph Shine decided on 27.09.2018 this Court finds that the Hon’ble Supreme Court has struck down Section 497 of the Indian Penal Code 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 V. Revathi versus Union of Indiaand W. Kalyani versus State 1 SCC 358] were overruled. 19. As per Article 141 of the Constitution of India the law declared by the Hon’ble Supreme Court is binding on all the courts within the territory of India and the law laid down by the Hon’ble Supreme Court applies to all pending proceedings. Upon perusal of the aforesaid decision of the Hon’ble Supreme Court there is no indication that the same would apply prospectively and there is nothing like any prospective operation of law laid down by the Hon’ble Supreme Court. In this regard reference may be made to the case of Maj. Genl. A.S. Gauraya and Another versus S.N. Thakur reported in2 SCC 709. 20. This Court finds that the present 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 has been declared to be unconstitutional in the case of Joseph Shine versus Union of India decided on 27.09.2018 reported in3 SCC 39. The said judgement is a binding precedent under Article 141 of the Constitution of In view of the aforesaid Judgment passed by the Hon’ble Supreme Court the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court and affirmed by the learned appellate court is legally not sustainable and accordingly both the impugned judgments call for interference under revisional jurisdiction to prevent miscarriage of justice to the petitioner. 22. Accordingly the impugned Judgment dated 01.10.2013 passed by the learned Additional Sessions Judge VII Palamau at Daltonganj in Criminal Appeal No. 90 2008 as well as the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class Daltonganj Palamau vide Judgment of conviction and the order of sentence dated 17.07.2008 in G.R. Case No. 33 of 2001 Trial No. 165 of 2008 is hereby set aside. Consequently the petitioner is discharged from the liability of 23. Accordingly this criminal revision petition is hereby his bail bond. 24. The office is directed to send back the Lower Court Records to the court concerned. 25. Let a copy of this Judgment be communicated to the court concerned through ‘FAX email’. 

Summary: Once a law that has been declared unconstitutional by the Supreme Court of India, no one can be convicted or sentenced under it and furthermore any prior conviction may be set aside through a revision petition. This was held by a single member bench of the High Court of Jharkhand consisting of Justice Anubha Rawat Choudhary in the case of August Kumar Mehta v The State of Jharkhand [Cr. Rev No. 1081 of 2013] on 23rd June 2021. The petitioner, Mr August Kumar Mehta was convicted on 1st October 2013 by an Additional Sessions Judge at Daltonganj under Section 497 of the Indian Penal Code for allegedly engaging in adultery with his neighbour’s wife. He was also sentenced to two years of rigorous imprisonment for the same. The present revision petition was admitted on 6th December 2013 and the petitioner as released on bail. On 27th September 2018, the Supreme Court, in the case of Joseph Shine v Union of India [(2019) 3 SCC] declared Section 497 of the IPC to be unconstitutional. The petitioner contended that since Section 497 was declared as ultra-vires to the constitution, the conviction should not be sustained. The case of Rupesh v Shri Charandas [2018 SCC OnLine Bombay 6292] was cited was cited where the Bombay High Court set aside a conviction under Section 497 of the IPC using the case of  Joseph Shine as a precedent despite adultery being a crime when the accused person had committed it.  The petitioner also added that he had been convicted on just hearsay evidence and assumptions and the prosecution’s case had not been proved beyond all doubt.