CHANDRA DUTTA @ CHANDRA KUMAR DUTTA v. DHIREN DUTTA

Advocate for the Petitioner : MR.P J SAIKIA, MR.K BARUAH Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date : 04-11-2025 ORDER Heard Ms. M. Nirola, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Addl. P.P. Assam appearing for the State/ respondent No. 2. None has appeared for the respondent No. 1 on call. Page No.# 2/5

2. The present revision petition has been instituted assailing the Judgment dated 07- 06-2014 passed by the learned Session Judge, Dibrugarh, in Criminal Appeal No. 47(3)/2013, dismissing the same and thereby upholding the judgement dated 29-05-2013 passed by the learned Judicial Magistrate, First Class, Dibrugarh in C.R. No. 419C/2010 convicting the petitioner, herein, under Section 497 IPC and sentencing him to undergo rigorous imprisonment for 03 (three) years along with payment of fine of Rs. 10,000/- (Rupees Ten Thousand), in default to suffer further rigorous imprisonment for 01 (one) month.

3. Respondent No. 1, herein, had instituted a complaint petition, inter-alia, alleging, therein, that the younger brother of the complainant had developed illicit relationship with his wife while he was away serving in the paramilitary force. The learned Judicial Magistrate First Class on conclusion of the trial, on appreciating the evidences coming on record, vide judgment dated 29-05-2013 proceeded to convict the petitioner, herein, under Section 497 IPC and sentence him as noticed, hereinabove. The petitioner herein being aggrieved by his conviction by the learned Trial Court vide the judgment dated 29-05-2013, assailed the same before the Court of the learned Sessions Judge, Dibrugarh, by way of filing an appeal, being Criminal Appeal No. 47(3)/2013. The Appellate Court upon appreciating the evidences coming on record, proceeded vide judgment dated 07-06-2014, to dismiss the appeal and thereby uphold the conviction of the petitioner, herein, by the learned Trial Court under Section 497 IPC. Being aggrieved the petitioner has instituted the present revision petition. Page No.# 3/5

4. Ms. M. Nirola learned counsel for the petitioner has submitted that the Hon’ble Supreme Court of India in the case of Joseph Shine Vs. UoI, reported in AIR Online 2018 SC 241 has struck down the provisions of Section 497 as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution of India. She further submits the said decision would have retrospective effect in respect of pending proceedings.

5. I have heard the learned counsels for the parties and also perused the materials brought on record.

6. The facts noticed, hereinabove, are not in dispute. The petitioner, herein, was convicted under Section 497 IPC and sentenced accordingly. The Hon’ble Supreme Court in the case of Joseph Shine (Supra) had considered the validity of the provision of Section 497 IPC and had struck down the same being unconstitutional. The learned Apex Court has observed as follows:- “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 Constitution of India and are, therefore, struck down as being invalid.” Page No.# 4/5

7. The decision of the Hon’ble Apex Court would have a retrospective effect and would cover the pending proceeding. (Refer the decision of the Hon’ble Supreme Court in the case of Maj. General A.S. Gauraya Vs. S.N. Thakur, reported in (1986) 2 SCC 709). The decision of the Hon’ble Supreme Court in the case of Joseph Shine (Supra) having struck down the provision of Section 497 IPC, no offence can be held to have been made out in the present case against the petitioner, herein. Accordingly, the conviction of the petitioner, herein, by the learned Trial Court and the upholding of the same by the learned Appellate Court would mandate interference by this Court.

8. In view of the above discussions, the judgment dated 07-06-2014 passed by the learned Sessions Judge, Dibrugarh in Crl. Appeal No. 47(3)/2013 along with the judgment passed by the learned Judicial Magistrate, First Class, Dibrugarh in C.R. Case No. 419C/2010 stands set aside. The conviction of the petitioner, under Section 497 IPC also stands set aside.

9. The petitioner is acquitted of the offence under Section 497 IPC and set at liberty. The bail bond executed by the petitioner stands discharged.

10. With the above observations and directions, the present criminal revision petition stands allowed.

11. Registry to send back the TCR forthwith along with a copy of the present order for information and necessary action. Page No.# 5/5 JUDGE Comparing Assistant