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2019 DIGILAW 1772 (JHR)

Parwati Devi v. State of Jharkhand

2019-10-18

DEEPAK ROSHAN

body2019
JUDGMENT : The instant application is directed against the judgment dated 21.07.2014, passed by the learned District & Additional Sessions Judge, Koderma in Criminal Appeal No. 09 of 2012, whereby the appeal preferred by the petitioner-Meghlal Singh was dismissed and the judgment of conviction and order of sentence passed by SDJM, Koderma in Jai Nagar P.S. Case No. 48 of 2002 corresponding to G.R. Case No. 266 of 2002 (T.R. No. 55 of 2012), whereby the petitioner-Meghlal Singh was convicted and sentenced for R.I. of 3 years under Section 497 of the Indian Penal Code, has been affirmed. 2. During pendency of this application, the original petitioner-Meghlal Singh has expired and a substitution petition was filed by his wife and the said petition (I.A. No. 8373 of 2019) was allowed and the name of the wife namely, Parwati Devi wife of Meghlal Singh was substituted. 3. The learned counsel for the petitioner submits that now the Hon’ble Apex Court has turned down Section 497 of the Indian Penal Code and as such, the impugned orders passed by the courts below should be set aside. 4. Per contra, the learned APP submits that the instant case is of 2002 and the judgment of Hon’ble Apex Court striking down Section 497 IPC has been passed recently. 5. Having heard learned counsel for the parties and perusing the materials available on record including the LCR, the only question remains to be decided as to whether the judgment passed by the Hon’ble Apex Court in the case of Joseph Shine Vs. Union of India reported in (2019) 3 SCC 39 holding Section 497 of IPC as unconstitutional will have a retrospective effect and whether it will affect the pending proceedings as well. 6. In this regard, the Hon’ble Apex Court in the 1986 itself has laid down the law by holding that Article 141 mandates every court subordinate to the Supreme Court to accept the law laid down by it. There is nothing like any prospective operation alone of the law laid down by the Supreme Court but such law applies to all pending proceedings. 7. In this regard, para-12 of the judgment passed in the case of Maj. Genl. A.S. Gauraya And Another Vs. S.N. Thakur And Another reported in (1986) 2 SCC 709 , where the law has been laid down as under: “12. 7. In this regard, para-12 of the judgment passed in the case of Maj. Genl. A.S. Gauraya And Another Vs. S.N. Thakur And Another reported in (1986) 2 SCC 709 , where the law has been laid down as under: “12. When the matter went before the High Court, the decision of this Court referred above must have been brought to its notice, since the order by the Additional Sessions Judge refers to it. We would have been happy if the High Court had considered the matter in some detail especially when its attention was drawn to this decision instead of dismissing the revision in limine. The observations of the Sessions Judge, extracted above, discloses a confusion of thought about the effect of a decision rendered by this Court and a misreading of Article 141 of the Constitution. There is nothing like any prospective operation alone of the law laid down by this Court. The law laid down by this Court applies to all pending proceedings. If the Sessions Judge had expressed his helplessness because of the earlier order of the High Court binding on him and had allowed the revision on that ground, we could have understood the reasoning behind it. He got rid of the effect of this Court's judgment by observing that a decision by this Court cannot be treated as “a sort of legislation by Parliament” and thus overlooked the binding nature of the law declared by this Court, mandating under Article 141, every court subordinate to this Court to accept it. The High Court could have, if it had examined the matter, corrected the error into which the Sessions Judge fell.” 8. Recently, the High Court of Bombay in the case of Rupesh Vs. Shri Charandas And Another reported in 2018 SCC OnLine Bom. 6292 dealing similar issue reiterated the law and held that the decision of the Supreme Court is binding in all the pending proceedings. In this regard, para nos. 5 and 7 of the said judgment is quoted here-in-below: “5. As per the submissions of learned counsel for the applicant that now Hon'ble Apex Court has turned down Section 497 of the Indian Penal Code. Learned counsel pointed out the judgment in the case of Joseph Shine v. Union of India reported in 2018 (11) Scale 556 . 5 and 7 of the said judgment is quoted here-in-below: “5. As per the submissions of learned counsel for the applicant that now Hon'ble Apex Court has turned down Section 497 of the Indian Penal Code. Learned counsel pointed out the judgment in the case of Joseph Shine v. Union of India reported in 2018 (11) Scale 556 . Learned counsel has submitted that it has a retrospective effect in view of the judgment in the case of Maj. Genl. A.S. Gauraya v. S.N. Thakur reported in (1986) 2 SCC 709 : AIR 1986 SC 1440 . 7. Hon'ble Apex Court in Maj. Genl. A.S. Gauraya v. S.N. Thakur (supra) has held that law laid down by the Supreme Court applies to all pending proceedings even with retrospective effect.” 9. In view of the aforesaid settled principle of law and in view of the fact that the Hon’ble Apex Court in the case of Joseph Shine Vs. Union of India reported in (2019) 3 SCC 39 has turned down Section 497 of the Indian Penal Code, the judgment of conviction passed by the trial court and upheld by the appellate court is, hereby, set aside. In the result, the application is allowed. 10. Let the lower court record be sent to the court concerned forthwith.