Allowed

Binod Oraon v. State of Jharkhand

Jharkhand HC7 Mar 2024Cr.A(SJ)/236/2012

Case brief

AI extract

What is this about?

Appeal against conviction under Section 497 IPC for adultery. Relying on Joseph Shine, which struck down Section 497 IPC as unconstitutional, and on the principle of retrospective application of Supreme Court declarations, the High Court set aside the conviction and sentence.

What did the court decide?

Conviction and sentence under Section 497 IPC set aside; appellant on bail; sureties discharged from bail bond liability.

Binod Oraon Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2024)

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Criminal Appeal (S.J.) No. 236 of 2012

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[ Against the judgment of conviction order of sentence dated 17.01.2012 passed by learned Sessions Judge, Palamau at Daltonganj in Sessions Trial No.130 of 2007]

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Binod Oraon @ Vinod Oraon .... .... …. Appellant --Versus-The State of Jharkhand …. …. …. Respondent For the Appellant : Ms. Supriya Dayal, Advocate Mr. Anurag Kashyap, Advocate For the State : Ms. Nehala Sharmin, A.P.P.

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----- PRESENT

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HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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By Court

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Judgment of conviction and sentence under Section 497 of the Indian Penal Code is under challenge in the instant criminal appeal.

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As per the fardbeyan of Prayag Mistry recorded on 25.04.2006, he was married to Sushma Devi fifteen years ago and had five children also. He was working for his livelihood outside and used to give his earnings to his wife. In January, 2006 when he returned, he found some changes in his wife towards his neighbor Binod Oraon. On 08.02.2006, Binod Oraon with intention to marry persuaded her wife and fled away with her along with their four children. Due to social stigma, he could not intimate the matter to the police, but when all steps failed, he filed this application.

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On the basis of fardbeyan, Patan P.S. Case No.64/2006 was registered under Sections 366 and 497 of the Indian Penal Code against Binod Oraon. The police, on investigation, found the case true and submitted charge sheet. After cognizance, he was put on trial under Sections 366 and 497 of the Indian Penal Code.

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Altogether five witnesses were examined. The defence of the accused is of innocence and false implication.

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Learned counsel appearing for the petitioner submitted that the petitioner has been convicted under Section 497 of the Indian Penal Code which has been declared unconstitutional by the Hon’ble Supreme Court in the case of Joseph Shine -versusUnion of India , (2019) 3 SCC 39 and therefore, once the Section itself has been declared ultra-vires to the Constitution, no conviction under Section 497 of the Indian Penal Code can be sustained.

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Learned counsel for the petitioner also referred to the judgement passed by the Hon’ble Bombay High Court in the case of Rupesh Versus Shri Charandas &Another , 2018 SCC OnLine Bombay 6292 wherein the Judgment of the Hon’ble Supreme Court passed in the case of Joseph Shine (Supra) has been followed and the conviction and sentence under Section 497 of the Indian Penal Code has been set aside under revisional jurisdiction.

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Learned A.P.P. has defended the judgment of conviction and sentence.

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After going through the judgment passed by the Hon’ble Supreme Court in the case of Joseph Shine (Supra), this Court finds that the Hon’ble Supreme Court has struck down Section 497 of the Indian Penal Code as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution of India; Section 198(2) Cr.P.C., which contains the procedure for prosecution under Chapter XX IPC was also held to be unconstitutional only to the extent that it is applicable to the offence of adultery under Section 497 IPC and decision passed in the case of Sowmithri Vishnu versus Union of India, 1985 Supp SCC 137 , V. Revathi versus Union of India , (1988)2 SCC 72 and W. Kalyani versus State , (2012) 1 SCC 358, were overruled.

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As per Article 141 of the Constitution of India, the law declared by the Hon’ble Supreme Court is binding on all the Courts within the territory of India and the law laid down by the Hon’ble Supreme Court applies to all pending proceedings. Upon perusal of the aforesaid decision of the Hon’ble Supreme Court, there is no indication that the same would apply prospectively and there is nothing like any prospective operation of law laid down by the Hon’ble Supreme Court. In this regard, reference may be made to the case of Maj. Genl. A.S. Gauraya and Another Versus S.N. Thakur , (1986) 2 SCC 709

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In view of the aforesaid Judgment passed by the Hon’ble Supreme Court, the conviction and sentence of the appellant under Section 497 of the IPC passed by the learned Court below is not sustainable.

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The judgment of conviction and sentence under Section 497 of the IPC cannot be sustained and is accordingly, set aside.

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The appeal is allowed. The appellant is on bail and the sureties shall be discharged from their liability of bail bond.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated, 7^th March, 2024 NAFR/Anit

Binod Oraon v. State of Jharkhand

Case brief

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Binod Oraon v. State of Jharkhand

Case brief

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