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Pardeep Sharma   23 December 2020

ADULTERY

Respected members,
A case of 497 was registered against me in 2015. Now the case is in "framing of charge stage". The honable court issues date every month but the lady does not come to answer the charge and the court keeps giving dates.
My query :
(1) As the apex court has declared 497 unconstitutional, how will be the charges framed against me?

(2) Can i file a reversion appeal (the court has not framed charges so far as the case is in framing of charge stage )in the high court to get this case dismissed?

thanks


Learning

 3 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     23 December 2020

IPC Section 497 'Arbitrary, Unconstitutional'; Adultery Can't Be a Criminal Offence: SC. ... New Delhi: A five-judge bench headed by Chief Justice of India Dipak Misra on Thursday unanimously ruled that Section 497 of the Indian Penal Code is unconstitutional, and struck it down.

Anubhav Tyagi   13 April 2021

You may file a quashing petition in the High Court.

Shubham Bhardwaj (Advocate)     20 June 2021

Dear Mr Sharma, 

Your knowledge about Section 497 IPC being declared unconstitutional is absolutely correct. You are also right on the aspect that no court can frame charges under a non-existent provision. The Hon'ble Supreme Court in the case of Joseph Shine versus Union of India [Writ Petition (Criminal) No 194 of 2017] declared section 497 IPC as unconstitutional for being violative of fundamental rights guaranteed under Part III of Constitution of India. The effect of such declaration is that the provision has ceased to be in effect (it is non-existent).

As far as proceedings against you are concerned, the same are not maintainable, therefore, you have 2 options:-

1. File quashing of the proceedings under Section 482 Cr PC. before the High Court (HC)

2. File discharge application before the Magistrate. 

Both options are similar in nature. The discharge application is a better option because the same will be less expensive as compared to quashing petition before the HC. 

Regards

Shubham Bhardwaj (Advocate)

District & Sessions Court, Chandigarh.

Punjab & Haryana High Court, At Chandigarh. 


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