Reji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 11TH DAY OF MARCH 2020/21ST PHALGUNA, 1941** **Crl.Rev.Pet.No.3465 OF 2005** **AGAINST THE JUDGMENT IN Crl.A.141/2000 OF I ADDITIONAL SESSIONS COURT, KOLLAM DTD.30.11.2005** **AGAINST THE JUDGMENT IN CC 914/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM DTD.27.7.2000** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **REJI, S/O.CHELLAPPAN PILLAI, AMBUJAMANDIRAM, THOTTUMUGHAM, MYNAGAPPALLY SOUTH, KOLLAM DISTRICT.** **BY ADV. SRI.S.SREEKUMAR** ## **- RESPONDENT/RESPONDENTS/COMPLAINANT STATE:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 DR.K.VASUDEVAN PILLAI, S/O.KESAVA PILLAI, KARIGOTTU VEEDU, NJARAKKAL, TRIKKARAVU, KOLLAM.** **R1 SR.PUBLIC PROSECUTOR SRI.M.S.BREEZE R2 BY ADV.SRI.ALAN PAPALI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.03.2020, ALONG WITH Crl.Rev.Pet.868/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.Nos.3465/2005 & 868/2006 ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 11TH DAY OF MARCH 2020/21ST PHALGUNA, 1941** ## **Crl.Rev.Pet.No.868 OF 2006** **AGAINST THE JUDGMENT IN Crl.A.141/2000 OF I ADDITIONAL SESSIONS COURT, KOLLAM DTD.30.11.2005** **AGAINST THE JUDGMENT IN CC 914/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM DTD.27.7.2000** ## **nd REVISION PETITIONER/2 RESPONDENT/COMPLAINANT:** **DR.K.VASUDEVAN PILLAI, S/O.KESAVA PILLAI, KARINGOTTU VEEDU, NJARAKKAL, THRIKKARUVA, KOLLAM.** **BY ADVS. SRI.ALAN PAPALI SRI.PRASUN.S** > **st - RESPONDENT/APPELLANT & 1 RESPONDENT STATE/** **ACCUSED & STATE:** **1 REJI, S/O.CHELLAPPAN PILLAI, AMBUJA MANDIRAM (THEKKEVILAYIL), THOTTUMUGHAM, MYNAGAPPALLY SOUTH, KOLLAM DISTRICT.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.A.JANI(KOLLAM) R1 BY ADV. SMT.NISA FASIL(KOLLAM) R2 BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.03.2020, ALONG WITH Crl.Rev.Pet.3465/2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.Nos.3465/2005 & 868/2006 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** By judgment dated 27.7.2000 in C.C.No.914/1996, the learned Judicial First Class Magistrate-I, Kollam convicted and sentenced the accused to undergo rigorous imprisonment for two years and also to pay a fine of Rs.5,000/-, in default of payment of fine to undergo simple imprisonment for a period of three months more for the offence punishable under Section 497 of IPC. 2. Challenging the conviction and sentence imposed by the trial court, the accused preferred Crl.A.No.141 of 2000 before the Sessions Court, Kollam. The first Additional Sessions Judge, Kollam, to whom the appeal was made over for hearing and disposal, confirmed the conviction, but modified the sentence to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of one month more for the offence punishable under Section 497 of IPC. Crl.R.P.Nos.3465/2005 & 868/2006 **==> picture [22 x 8] intentionally omitted <==** 3. Feeling aggrieved by the judgment dated 30.11.2005 in Crl.A.No.141/2000 of the first Additional Sessions Judge, Kollam, the accused preferred Crl.R.P.No.3465/2005 before this Court. On the other hand, the de facto complainant preferred Crl.R.P.No.868/2006 before this Court seeking to enhance the sentence modified by the first Additional Sessions Court, Kollam in Crl.A.No.141/2000 so as to secure the ends of justice. Parties are hereinafter referred to as the de facto complainant and the accused according to their status in the trial court unless otherwise stated. 4. The de facto complainant filed a private complaint before the Judicial First Class Magistrate Court, Kollam against the accused alleging offences punishable under Sections 363, 379, 448 and 497 of the IPC. The learned Magistrate forwarded the complaint under Section 156(3) of Cr.P.C. to the Station House Officer, Anchalumoodu Police Station for investigation and report. After investigation, the case was referred by the police. Consequently, the de facto complainant Crl.R.P.Nos.3465/2005 & 868/2006 **==> picture [22 x 8] intentionally omitted <==** filed a protest complaint before the learned Magistrate. Upon conducting an enquiry, the learned Magistrate took cognizance of offences punishable under Sections 363, 379 and 497 of the IPC and issued summons to the accused. 5. The case of the complainant in brief is that, the accused, who had been residing near the house of the de facto complainant, was acquainted with the de facto complainant and his family. It was further alleged that, while so, the accused had enticed and developed an illicit relationship with the wife of the de facto complainant with the knowledge that the de facto complainant is none other than her husband. It was further alleged that, on 02.02.1995 at about 6.30 pm., the accused enticed and kidnapped the wife of the complainant and his minor daughter from his lawful custody and had stolen away household articles and gold ornaments owned and possessed by the de facto complainant and thereby committed the offences aforesaid. 6. During the trial, PWs.1 to 4 were examined on the side of the de facto complainant and Exts.P1 to P5 were Crl.R.P.Nos.3465/2005 & 868/2006 **==> picture [22 x 8] intentionally omitted <==** marked. DW1 was examined on the side of the accused and marked Ext.D1 on his side. 7. After hearing both sides, the learned Magistrate convicted and sentenced the accused under Section 497 of IPC. However, the accused was acquitted of all other offences. 8. Sri.Jani.A., learned counsel for the accused submitted that in view of the decision of the Supreme Court in **Joseph Shine v. Union of India (2019 (3) SCC 39)** holding Section 497 of IPC as also Section 198 of Cr.P.C. violative of Article 14, 15(1) and 21 of the Constitution of India, Section 497 of the IPC connected provisions of 198 of Cr.P.C. were not in the statute book right from the very beginning and definitely would affect all pending cases including the present one. 9. Heard Sri.Jani.A., learned counsel for the accused and Sri.M.S.Breeze, learned Senior Public Prosecutor for the State. 10. The question arising for consideration in this case is as to whether the aforesaid decision of the Apex Court striking down Section 497 of the IPC and Section 198 of the Cr.P.C. as Crl.R.P.Nos.3465/2005 & 868/2006 ..7.. unconstitutional would affect the pending proceedings retrospectively. This position has been answered by the Apex Court in **Major General A.S.Gauraya & another v. S.M.Takur & another [1986 (2) SCC 709]** as follows:- _“Where the Sessions Court allowed a revision before it by - passing 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. 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,_ Crl.R.P.Nos.3465/2005 & 868/2006 **==> picture [22 x 8] intentionally omitted <==** _every Court subordinate to that Court to accept it.”_ The above legal position has been followed by a Single Bench of this Court in **Sadasivan v. State of Kerala [2019 KHC 678]** . 11. In view of the above, it is settled principle of law that Section 497 of IPC and Section 198 of Cr.P.C. are violative of Article 14, Article 15(1) and Article 21 of the Constitution of India. Thus, it goes without saying that Section 497 of IPC and the connected provisions under Section 198 of Cr.P.C. were not in the statute book and definitely would affect all pending cases, including the present one which is impugned in the revision. The impugned judgment is not sustainable and the conviction and the sentence are liable to be set aside. 12. In the result, Crl.R.P.No.3465/2005 is allowed. The conviction and sentence imposed by judgment dated 30.11.2005 in Crl.A.No.141/2000 by the first Additional Sessions Court, Kollam which arose from judgment dated 27.7.2000 in C.C.No.914/1996 by the Judicial First Class Crl.R.P.Nos.3465/2005 & 868/2006 **==> picture [22 x 8] intentionally omitted <==** Magistrate-I, Kollam stand set aside. Consequently, Crl.R.P.No.868/2006 stands dismissed. The accused (revision petitioner in Crl.R.P.No.3465/2005 & 1[st] respondent in Crl.R.P.No.868/2006) is acquitted of the offence punishable under Section 497 of IPC. Cancelling his bail bond, this Court directs that he be set at liberty. Sd/- **N.ANIL KUMAR, JUDGE** skj