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2024 DIGILAW 628 (KER)

Vasudevan Namboodiri v. State of Kerala

2024-06-07

A.BADHARUDEEN

body2024
ORDER : 1. This is a petition filed under Section 482 of the Code of Criminal Procedure (‘Cr.P.C.’ for short) to quash all the further proceedings in C.C. No. 301/2022 on the files of JFCM, Malappuram arising out of Crime No. 593/2004 of Kondotty Police Station, Malappuram District. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the records available. 3. In this case, the prosecution alleges commission of offence under Section 497 of Indian Penal Code (for short “IPC”) by the accused. 4. The learned counsel for the petitioner argued that in the decision reported in Joseph Shine vs. Union of India, (2019) 3 SCC 39 , the Apex Court held that Section 497 of IPC and Section 198 of Cr.P.C. are unconstitutional and in the decision reported in Joseph Shine vs. Union of India, (2003) 5 Supreme 154 : 2003 (0) Supreme (SC) 642 the Apex Court clarified that insofar as the said offences, members of Armed Forces have their own sets of law. 5. It is also pointed out that this Court also considered the legal impact of the decision in Joseph Shine (Supra) in Sadasivan S/o Raghavan Nair vs. State of Kerala, 2019 (4) KLT 60 and held that ratio therein would apply to all pending cases. On reading Sadasivan (Supra) this Court raised a question in Para No. 9 and answered the same in Para Nos. 10 and 11 are as under: 9. The question that arises for consideration is whether the aforesaid decision of the Hon'ble Supreme Court striking down Section 497 of the I.P.C. and Section 198 of the Cr.P.C. as unconstitutional would affect the pending proceedings retrospectively. The Hon'ble Supreme Court has in Maj. General A.S. Gauraya and Another vs. S.N. Takur and Another, AIR 1986 SC 1440 held thus: Where the Sessions Court allowed a revision before it by bypassing the decision of Supreme Court on the point involved with the observation that a pronouncement as to the position of law in a judicial decision by the Supreme Court cannot be treated as a sort of legislation by the Parliament giving retrospective effect as to enjoin re-opening of all matters which have already become final and closed, the order of Sessions Court was held unjustified. There is nothing like any prospective operation alone of the law laid down by Supreme Court. There is nothing like any prospective operation alone of the law laid down by Supreme Court. The law laid down by that Court applies to all pending proceedings. If there would have been an earlier order of the High Court binding on Sessions Judge it would have been a different matter. He got rid of the effect of Supreme Court's judgment by observing that a decision by that Court cannot be treated as a sort of legislation by Parliament and thus overlooked the binding nature of the law declared by Supreme Court, mandating under Art. 141, every Court subordinate to that Court to accept it. 10. The Hon'ble Supreme Court had relied on its earlier decision in Shenoy and Co. vs. Commercial Tax Officer, (1985) 2 SCC 512 , wherein it was held thus: The law declared by the Supreme Court shall be binding on all courts within the territory of India. A mere reading of this article brings into sharp focus its expanse and is all pervasive nature. In cases like this, where numerous petitions are disposed of by a common judgment and only one appeal is filed, the parties to the common judgment could very well have and should have intervened and could have requested the Court to hear them also. They cannot be heard to say that the decision was taken by this Court behind their back or profess ignorance of the fact that an appeal had been filed by the State against the common judgment. 11. In view of the decision of the Hon'ble Supreme Court holding Section 497 of I.P.C. as also Section 198 of Cr.P.C. violative of Articles 14, 15(1) and 21 of the Constitution of India, it has to be assumed that Section 497 of the I.P.C. and the connected provisions of Section 198 of Cr.P.C. were not in the statute book and definitely would affect all pending cases, including this. The impugned judgment is not sustainable and the conviction and sentence would therefore have to be set aside. 6. In as much as Section 497 of IPC and 198 of Cr.P.C. are connected the same are declared unconstitutional by the Apex Court holding that the same would violate Articles 14, 15(1) and 21 of the Constitution of India and the said declaration of law shall have retrospective operation and the same would apply to all pending cases. 6. In as much as Section 497 of IPC and 198 of Cr.P.C. are connected the same are declared unconstitutional by the Apex Court holding that the same would violate Articles 14, 15(1) and 21 of the Constitution of India and the said declaration of law shall have retrospective operation and the same would apply to all pending cases. Although the Apex Court in Joseph Shine (2nd Case) held that the judgment in Joseph Shine vs. Union of India, (2019) 3 SCC 39 was not all concerned with sections 45 and 63 of the Army Act, 1950, Section 69 of the Navy Act and Sections 45 and 65 of the Air Force Act, the declaration of Section 497 of IPC and Section 198 of Cr.P.C. as unconstitutional, is the binding precedent to be followed. In view of the matter, the quashment sought for is liable to be allowed. 7. In the result, all further proceedings in C.C. No. 301/2022 on the files of JFCM, Malappuram arising out of Crime No. 593/2004 of Kondotty Police Station stands quashed.