Karnataka High Court

Sri.Prakash Laxman Patil vs The State Of Karnataka on 12 February, 2024

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                                              NC: 2024:KHC-D:3173
                                              CRL.A No. 100198 of 2016




             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                 DATED THIS THE 12TH DAY OF FEBRUARY, 2024

                                     BEFORE
                     THE HON'BLE MR JUSTICE RAJESH RAI K
                    CRIMINAL APPEAL NO. 100198 OF 2016 (C)
             BETWEEN:

             SRI. PRAKASH LAXMAN PATIL,
             AGE: 31 YEARS,
             R/O: HONAPUR,
             TAL AND DIST: DHARWAD,
             NOW AT P.B. ROAD, SANKESHWAR,
             TAL: HUKKERI, DIST: BELAGAVI.
                                                          ...APPELLANT

             (BY SRI. RAJENDRA PATIL, ADVOCATE FOR
             SRI. SRINAND A. PACHHAPURE, ADVOCATE)

             AND:

             THE STATE OF KARNATAKA,
             THROUGH PSI,
             KAKATI POLICE STATION,
Digitally
signed by    REPRESENTED BY SPP.,
SHIVAKUMAR
HIREMATH     HIGH COURT OF KARNTAKA,
Date:
2024.02.17
12:22:46
             BENCH AT DHARWAD.
+0530
                                                        ...RESPONDENT

             (BY SRI. M.B. GUNDAWADE, ADDL. SPP.)

                  THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF
             CR.P.C., PRAYING TO CALL FOR THE RECORDS IN
             S.C.NO.185/2014 AND SET ASIDE THE JUDGMENT OF
             CONVICTION AND ORDER OF SENTENCE DATED 24.06.2016
             PASSED BY THE VIII ADDL. DIST. AND SESSIONS JUDGE,
             BELAGAVI    IN  S.C.NO.185/2014  FOR THE   OFFENCE
             PUNISHABLE UNDER SECTION 497 OF IPC.
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                                            NC: 2024:KHC-D:3173
                                            CRL.A No. 100198 of 2016




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

This appeal by the convicted by the accused No.1

questioning the legality and validity of the Judgment

passed in S.C.No.185/2014 dated 24.06.2016 by the VIII

Additional District and Sessions Judge, Belagavi, wherein,

the learned Sessions Judge has convicted the

accused/appellant for the offences punishable under

Section 497 of IPC, and sentenced him to undergo simple

imprisonment for a period of 3 months and to pay fine of

Rs.2,000/- and in default of payment of fine, the accused

is directed to undergo simple imprisonment for a period of

one month.

2. The factual matrix of the prosecution case are

that-

On 05.01.2014 at about 5.30 p.m. at Kakati Desai

Galli, the appellant/accused No.2 with an intention

common intention abetted the victim/complainant to come

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to Siddeshwar Temple and from that place the accused

No.2 (who is already acquitted from the charges) took her

to Sangam Lodge, at Kakati, Belagavi and illegally

restrained the victim for five days and committed forcible

sexual coitus on her. Further the accused Nos.1 and 2

compelled her to marry accused No.2. As such, a

complaint came to be registered by P.W.1- victim as per

Ex.P1 before the Kakati Police Station. The same came to

be registered in Crime No.8/2014. Subsequently, the said

police investigated and laid charge-sheet against the

accused No.1/appellant and accused No.2 for the offences

punishable under Sections 109, 506, 376 read with

Section 34 of IPC before the committal Court.

3. Post committal of the case before the Sessions

Court, the learned Sessions Judge framed the charges for

the aforesaid offences and read over the same to the

accused. However, the accused denied the charges and

claimed to be tried.

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4. In order to prove the guilt of the accused, the

prosecution has examined in total of 15 witnesses as

P.W.1 to P.W.15, so also got marked 34 documents as

Ex.P.1 to Ex.P.34 and got identified 14 material objections

as M.O.1 to M.O.14.

5. After completion of the prosecution evidence,

the learned Sessions Judge, read over the incrementing

evidence of the material witnesses to the accused as per

the provision of Section of 313 of Cr.P.C., However, the

accused denied the same. Though the accused did not

chose to examine any witness on his behalf, however, got

marked 11 documents as Ex.D1 to Ex.D11.

6. After assessment of the oral and documentary

evidence placed before the learned Sessions Judge, the

learned Sessions Judge acquitted the accused Nos.1 and 2

for the offences punishable under Sections 109, 506, 376

read with Section 34 of IPC, however convicted the

appellant/accused No.1 for the offences punishable under

Section 497 of IPC and sentenced him as stated supra.

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The legality of the said Judgment is challenged under this

appeal.

7. Heard learned counsel Sri. Rajendra Patil for

Sri. Srinand A. Pachchapure learned counsel for the

appellant so also the learned Addl. SPP and perused the

records made available before us.

8. Learned counsel for the appellant before

adverting to the facts and evidence of the case, submitted

that, the Hon'ble Apex Court has turned down Section 497

of IPC in view of its decision in the case of Joseph Shine

Vs. Union of India reported in 2018 (11) Scale 556.

Learned counsel, relying upon the decision in Maj. Genl.

A.S. Gauraya and anr. Vs. S.N.Thakur and anr.

reported in AIR 1986 SC 1440 would also submit that,

the effect of the judgment in Joseph Shine's Case

supra, is retrospective in nature and as such prays for a

relief in accordance with the settled position.

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9. Per contra, though learned Addl. SPP supported

the impugned judgment on the factual aspects but has

conceded to the findings of the Apex Court in above cited

decisions

10. The Hon'ble Apex Court in the case of Joseph

Shine Vs. Union of India (supra) has examined the

provision enshrined in Section 497 of IPC and has held

that the same is in the teeth of Constitutional mandates

enshrined in Articles 14,15 and 21 of the Constitution. The

relevant paragraph of the judgment is referred herein for

the purpose of reference -

"The moving times have not left the law behind as we have just seen, and so far as engaging the attention of law makers when reform of penal law is undertaken, we may only hasten to add that even when the CrPC was fully replaced in 1973, Section 198 continued to be on the statute book. Even as of today, Section 497 IPC continues to be on the statute book. When these sections are wholly outdated and have outlived their purpose, not only does the maxim of Roman law, cessante ratione legis, cessat ipsa lex, apply to interdict such law, but when such law falls foul of constitutional guarantees, it is this Court's solemn duty not to wait for legislation but to strike down

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such law. As recently as in Shayara Bano (supra), it is only the minority view of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait for the law to change legislatively by way of social reform. The majority view was the exact opposite, which is why Triple Talaq was found constitutionally infirm and struck down by the majority. Also, we are of the view that the statement in this judgment that stability of marriages is not an ideal to be scorned, can scarcely be applied to this provision, as we have seen that marital stability is not the object for which this provision was enacted. On all these counts, therefore, we overrule the judgment in Sowmithri Vishnu (supra). Equally, the judgment in V. Revathi (supra), which upheld the constitutional validity of Section 198 must, for similar reasons, be held to be no longer good law. We, therefore, declare that Section 497 of the Indian Penal Code, 1860 and Section 198 of the Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1), and 21 of the Constitution of India and are, therefore, struck down as being invalid."

11. Further, if the decision of the Hon'ble Apex

Court is seen juxtapose the Maj. Genl. A.S.Gauraya and

anr. Vs. S.N.Thakur and anr reported in AIR 1986 SC

1440, wherein, the Hon'ble Apex Court had clearly held

that, any orders passed by it, in exercise of the provisions

of Article 141 of the Constitution, same shall have the

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effect of retrospectively and they shall apply to all the

pending proceedings also. For the purpose of reference

paragraph No. 12 of the Order of the Hon'ble Apex Court

reads 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 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 Count 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 Courts subordinate to this Court to accept it. The

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High Court could have if it had examined the matter, corrected the error into which the Sessions Judge fell."

(Emphasis supplied by Me)

12. Further, this position of law is also reiterated by

the Hon'ble High Court of Panjab and Hariyana in the case

of Chetan Kumar Vs. State of Punjab and others,

reported in 2019 SCC Online P&H 6290, wherein, the

Hon'ble High Court while interpreting the decision of the

Hon'ble Apex Court in Joseph Shine Vs. Union of India

supra, reiterating the findings in Maj. Genl. A.S.

Gauraya and anr. Vs. S.N.Thakur and anr., has held

that, the effect of decision of the Hon'ble Apex Court in

Joseph Shine's case supra, would be retrospective in

nature and the same shall be applicable to all the pending

cases also.

13. On applying the above guidelines issued by the

Hon'ble Apex Court in the Judgments discussed supra, I

am also of the examined opinion that, the principles

envisaged in Joseph Shine's case supra, would be

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retrospective in nature and the same applies to the case

on hand also. Admittedly, in this case on hand, the

appellant/accused No.1 is also convicted for the offence

497 of IPC.

14. Hence, in view of the decision of the Hon'ble

Supreme Court, holding Section 497 of IPC is not an

offence, punishment awarded by the learned Sessions

Judge in S.C.No.185/2014 dated 24.06.2016 calls for

interference and accordingly, is liable to be set aside.

15. Accordingly, I proceed to pass the following:

ORDER

i. The appeal is allowed;

ii. The Judgment and order of sentence dated 24.06.2016 passed in S.C.No.185/2014 by the VIII Additional District and Sessions Judge, Belagavi is set aside;