Conviction or sentence under a revoked law is not sustainable: High Court of Jharkhand

Once a law that has been declared unconstitutional by the Supreme Court of India, no one can be convicted or sentenced under it and furthermore any prior conviction may be set aside through a revision petition. This was held by a single member bench of the High Court of Jharkhand consisting of Justice Anubha Rawat Choudhary in the case of August Kumar Mehta v The State of Jharkhand [Cr. Rev No. 1081 of 2013] on 23rd June 2021.

The petitioner, Mr August Kumar Mehta was convicted on 1st October 2013 by an Additional Sessions Judge at Daltonganj under Section 497 of the Indian Penal Code for allegedly engaging in adultery with his neighbour’s wife. He was also sentenced to two years of rigorous imprisonment for the same. The present revision petition was admitted on 6th December 2013 and the petitioner as released on bail. On 27th September 2018, the Supreme Court, in the case of Joseph Shine v Union of India [(2019) 3 SCC] declared Section 497 of the IPC to be unconstitutional.

The petitioner contended that since Section 497 was declared as ultra-vires to the constitution, the conviction should not be sustained. The case of Rupesh v Shri Charandas [2018 SCC OnLine Bombay 6292] was cited was cited where the Bombay High Court set aside a conviction under Section 497 of the IPC using the case of  Joseph Shine as a precedent despite adultery being a crime when the accused person had committed it.  The petitioner also added that he had been convicted on just hearsay evidence and assumptions and the prosecution’s case had not been proved beyond all doubt.

 Justice Anubha Rawat Choudhary stated that “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”. It was also added that “the impugned Judgment dated 01.10.2013 passed by the learned Additional Sessions Judge-VII, Palamau at Daltonganj in Criminal Appeal No. 90/2008 as well as the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned Judicial Magistrate, 1st Class, Daltonganj, Palamau is hereby set-aside.” Hence the revision petition was allowed and the petitioner was discharged from the liability of his bail bond.

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