"No Indication That Joseph Shine Judgment Will Apply Prospectively": Jharkhand High Court Acquits Man Convicted For Adultery In 2008

The Jharkhand High Court has set aside an order passed in 2008 by the lower court convicting and sentencing a man for the offence of adultery after observing that there is no indication of prospective application in the judgment delivered by the Supreme Court declaring adultery as unconstitutional.

Relying on the judgment of Joseph Shine v. Union of India, a single judge bench comprising of Justice Anubha Rawat Choudhary observed thus:

"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."

The observation came in a criminal revision petition challenging the judgment of the sessions court dated 1st October 2013 affirming the conviction and sentencing order passed against the petitioner for the offence of adultery under sec. 497 of IPC.

The Trial Court had vide order dated 17th July 2008 convicted the petitioner under sec. 497 IPC and had sentenced him to undergo Rigorous Imprisonment for two years.

According to the prosecution's case, a written report was lodged on 6th January 2001 by one Arun Kumar Mehta alleging that his wife was absent from his house since December 2000 and that he was informed by his sister's son that she had fled away with the petitioner. A case was thereafter registered against the petitioner under sec. 497 and 380 of IPC.

It was thus the case of the petitioner that since the provision was declared as unconstitutional by the Supreme Court in Joseph Shine -versus- Union of India decided on 27.09.2018 reported in (2019) 3 SCC 39, the conviction must be set aside as being non sustainable.

Looking at the facts of the case, the High Court observed thus:

"This Court finds that the present revision petition was admitted on 06.12.2013 and the petitioner was directed to be released on bail. During the pendency of the revision petition, the section in which the petitioner was ultimately convicted i.e Section 497 IPC , has been declared to be unconstitutional in the case of Joseph Shine -versus- Union of India decided on 27.09.2018 reported in (2019) 3 SCC 39. The said judgement is a binding precedent under Article 141 of the Constitution of India."

Furthermore it said:

"In view of the aforesaid Judgment passed by the Hon'ble Supreme Court, the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court and affirmed by the learned appellate court is legally not sustainable and accordingly, both the impugned judgments call for interference under revisional jurisdiction to prevent miscarriage of justice to the petitioner."

Accordingly, the impugned judgment dated 1st October 2013 was set aside by the High Court along with the conviction and sentencing order dated 17th July 2008.

Title: August Kumar Mehta v. The State of Jharkhand

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