2024/KER/40507 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 CRL.MC NO. 6550 OF 2022 CRIME NO.593/2004 OF KONDOTTY POLICE STATION, MALAPPURAM AGAINST THE ORDER/JUDGMENT DATED IN CC NO.301 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MALAPPURAM PETITIONER / ACCUSE D :

VASUDEVAN NAMBOODIRI AGED 66 YEARS S/O. P.N. NAMBOODIRI, PANNIKULAM ILLAM, ECHIKKANAM P.O., AANANTHASRAMAM, KASARGODE DISTRICT, PIN - 671531 BY ADV K.RAKESH RESPONDENTS / STATE & COMPLAINAN T :

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031

2 THE STATION HOUSE OFFICER KONDOTTY POLICE STATION, MALAPPURAM DISTRICT, PIN - 673638 BY ADV PUBLIC PROSECUTOR SR PP RENJIT GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

07.06.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

‘CR’

A. BADHARUDEEN, J.

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Crl.M.C. No.6550 of 2022 -------------------------------------------------------------

Dated this the 7^th day of June, 2024

O R D E R

This is a petition filed under Section 482 of the Code of Criminal Procedure (`Cr.P.C.’ for short), to quash all the further proceedings in CC.No.301/2022 on the files of JFCM, Malappuram arising out of Crime No.593/2004 of Kondotty Police Station, Malappuram District.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the records available. 3. In this case, the prosecution alleges commission of offence under Section 497 of Indian Penal Code (for short “IPC”) by the accused.

4. The learned counsel for the petitioner argued that in the decision reported in Joseph Shine v. Union of India, (2019) 3 SCC 39, the Apex Court held that Section 497 of IPC and Section 198 of Cr.PC are unconstitutional and in the decision reported in (2003) 5 Supreme 154: 2003 0 Supreme (SC)642. In Joseph Shine v. Union of India, the Apex Court clarified that insofar as the said offences, members of Armed Forces have their own sets of law. 5. It is also pointed out that this Court also considered the legal impact of the decision in Joseph Shine (Supra) in Sadasivan, S/O Raghavan Nair v. State of Kerala [2019 (4) KLT 60] and held that ratio therein would apply to all pending cases. On reading Sadasivan (Supra) this Court raised a question in para No.9 and answered the same in para Nos. 10 and 11 are as under:-

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.

10. The Hon'ble Supreme Court had relied on it's earlier decision in Shenoy and Co. v. Commercial Tax Officer, (1985) 2 SCC 51