Sadasivan v. State of Kerala

**“C.R.”** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** **CRL.A.No.1474 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 80/2003 DATED 09-07-2008 OF ADDITIONAL DISTRICT COURT (ADHOC)-III, TRIVANDRUM** ## **APPELLANT/ACCUSED:** **SADASIVAN, S/O RAGHAVAN NAIR SIVA SADANAM, KELESWARAM, VENGANOOR, THIRUVALLOM, VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.VIJAYABHANU (SR.) SMT.POOJA PANKAJ SRI.VIPIN NARAYAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, NEYYATTINKARA THROUGH, THE PUBLIC PROSECUTOR HIGH COURT OF KERALA.** ## **OTHER PRESENT:** **SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2019, THE COURT ON 05.09.2019 PASSED THE FOLLOWING:** _Crl.Appeal No. 1474 of 2008_ 2 ## **JUDGMENT** ## **Dated this the 5th day of September 2019** ## **J U D G M E N T** The appellant is the accused in S.C.No.80/2003 on the file of the Additional Sessions Court (Adhoc)-III, Thiruvananthapuram, who was found guilty for having committed the offence punishable under Section 497 of the I.P.C. and sentenced to undergo simple imprisonment for three years. Aggrieved, he is before this Court. 2. The facts in brief are thus: PW5, the husband of the deceased, was employed in Saudi Arabia. He had not visited the wife and daughter for more than 2½ years. His wife Sobha was a Homoeo Doctor and daughter Archana was 10 years old. The accused was employed as a Photographer in the Forensic Science Laboratory and got acquainted with the deceased Sobha. It is said that their physical intimacy led to the pregnancy of the deceased. Attempts were made by the accused and Sobha to get the pregnancy aborted. The Doctor, however, dissuaded her as the fetus was already five months old. _Crl.Appeal No. 1474 of 2008_ 3 3. The prosecution case is that the accused after having knowledge and reason to believe that Sobha was the wife of another man, without the consent or connivance of that man, had sexual intercourse with her and was therefore guilty of committing the offence of adultery punishable under Section 497 of I.P.C. 4. At some time between 18.05.1996 and 21.05.1996, the deceased Sobha somehow caused the death of her mother Krishnamma and her daughter Archana and thereafter, committed suicide by hanging herself in her house. The prosecution also accused the accused of having abetted Sobha to commit suicide, and therefore, he is guilty under Section 306 of I.P.C. 5. PW1, the brother-in-law of the deceased, gave Ext.P1 statement to PW17, the Sub Inspector of Police, Balaramapuram Police Station, stating that Sobha had become pregnant in consequence of an illicit relationship with the accused, a Photographer, and that having failed in her attempt to get the pregnancy aborted, she took the extreme step of annihilating her mother and daughter and thereafter, committed suicide _Crl.Appeal No. 1474 of 2008_ 4 in order to avoid the disgrace brought about by her to the family and herself. Initially, Crime No.121/1996 was registered at Balaramapuram Police Station under Section 174 of the Cr.P.C. Subsequent investigation implicated the accused of the aforesaid offence. 6. Surprisingly, PW5, the husband of the deceased, did not make any complaint against the accused. In the statement of PW1 also, there is no allegation that the deceased had physical intimacy with the accused without the consent or connivance of her husband. The most essential ingredient of Section 497 is that the sexual intercourse by the accused with the married lady should have been without the consent or connivance of her husband. Section 198 of the Cr.P.C. permits cognizance to be taken for an offence punishable under Section 497, coming under Chapter XX of the I.P.C. only on the basis of a complaint by the husband of the lady subjected to sexual intercourse by the accused. There is also neither any evidence to indicate that the husband serving abroad had authorised PW1 or anyone else to make a complaint, nor did the prosecution _Crl.Appeal No. 1474 of 2008_ 5 obtained sanction of the Court to prosecute the accused as is essential under Section 198(2) of the Cr.P.C. The explanation given by the investigating officer is that, in view of the fact that there is also an offence under Section 306 of the I.P.C. against the accused, sanction under Section 198, Cr.P.C. is not necessary. The learned Sessions Judge accepted that contention of the investigating officer, which I find unsustainable. 7. Though the accused was charge sheeted under Sections 497 and 306 of the I.P.C., the learned Sessions Judge came to the conclusion that there is no evidence regarding abetment to suicide, the essential requisite to attract Section 306 I.P.C. The deceased in her suicide note recovered by the prosecution does not put the blame of her death on anyone. The learned Sessions Judge rightly concluded that there is absolutely no evidence regarding the accused instigating or abetting the deceased to commit suicide. 8. As already stated, the Court below was not justified in proceeding against the accused under Section 497 for the reasons stated earlier. That 6 _Crl.Appeal No. 1474 of 2008_ apart, Advocate Sri.V.C.Sarath, representing the Counsel appearing for the appellant, drew my attention to the judgment of the Hon'ble Supreme Court in _**Joseph Shine v. Union of India, (2019) 3 SCC 39**_ , wherein a Constitutional Bench of the Appex Court struck down Section 497 of I.P.C. and also Section 198 of Cr.P.C as unconstitutional, observing thus: _“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 duly not to wait for legislation but to strike down 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_ _Crl.Appeal No. 1474 of 2008_ 7 _Constitution of India and are, therefore, struck down as being invalid.”_ 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.Genl. A.S.Gauraya &**_ _**another v. S.N.Takur & another, AIR 1986 SC 1440**_ held thus:- _“Where the Sessions Court allowed a revision before it by 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, every Court subordinate to that Court to accept it.”_ **==> picture [432 x 12] intentionally omitted <==** earlier decision in _**Shenoy and Co. v. Commercial Tax**_ _Crl.Appeal No. 1474 of 2008_ 8 ## _**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. **==> picture [432 x 12] intentionally omitted <==** conviction and sentence of the appellant vide the impugned judgment in S.C.No.80/2003 on the file of the Addl.Sessions Court (Adhoc)-III, Thiruvananthapuram, is _Crl.Appeal No. 1474 of 2008_ 9 set aside and the accused is acquitted and set at liberty, in case he is not required in connection with any other case. The bail bonds, if any, executed by him shall stand cancelled. **Sd/-** **ASHOK MENON** _dkr_ **JUDGE**