Bashir Mohammed and anr. Vs. Peer Khan

Bashir Mohammed and anr. vs Peer Khan

Disposition Petition allowed Court Rajasthan Decided Mar 01, 1972

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Citation: sooperkanoon.com/757413
Court: Rajasthan High Court
Judge: L.S. Mehta, J.
Decided On: Mar 01, 1972
Case Number: S.B. Criminal Revision No. 428 of 1971
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

Penal Code - Section 107, 497 & 498--Wife cannot be punished as an abettor--Abatement--Constituents of.;In the case of adultery it is distinctly enacted in 8, 497, I.P.C., that a wife is not punishable as an abettor. It is, therefore, inconsistent to punish her as an abettor of the minor offence under Section 49...

Key legal issue: Criminal
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Bashir Mohammed and anr.

Respondent

Peer Khan

Legal References

Cases Referred: Yusuf Abdul Aziz v. The State of Bombay
Reported In: 1972WLN139

Excerpt

.....aiding a person to commit it abetment implies a certain degree of activity in the abettor. enticement denotes a state of passivity on the part of the woman and as such none of the ingredients of 8. 107, i.p.c., is likely to be attracted.;(b) penal code - section 497--constitution of india--articles 14 & 15--special provision for women--held, section 497 is valid.;the provision which prohibits punishment does not tantamount to a licence to commit an offence. article 14 of the constitution is general in nature and has to be read with other provisions of the constitution, set out in part iii of the constitution. sex is a sound classification and the constitution itself provides for special provisions in the case of women and children. the two articles read together validate the impugned clause in section 497, i.p.c. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - in the..........the revision-petition was admitted only in respect of mst. jannat2. the only legal point which merits consideration is whether mst. jannat can be held liable for the offence under, section 498, i.p.c. in the case of adultery it is distinctly enacted in section 497, i.p.c. that a wife is not punishable as an abettor. it is, therefore, inconsistent to punish her as an abettor of the minor offence under section 498, i.p.c. see in re balambai 26 ilr mad. 463, abetment can as given in section 107, i.p.c. be constituted (1) by instigating a person to commit an offence; or (12) by engaging in a conspiracy to commit it; or (3) by intentionally aiding a person to commit it. abetment implies a certain degree of activity in the abettor. enticement donates a state of passivity on the part of the woman and as such none of the ingredients of section 107, i.p.c. is likely to be attracted.3. the last sentence in section 497, i.p.c. reads:in such a case the wife shall not be punishable as en abettor.this provision obviously appears to be discriminatory to article 15 of the constitution of india. the relevant portion of article 15 of the constitution is this:the state shall not discriminate against any citizen on grounds only of...sex.but clause (3) of the same article lays down:nothing in this article shall prevent the state from making any special provision for women....it cannot be held that clause (3) should be confined only to provisions which are beneficial to women. the provision which prohibits punishment does not tantamount to a licence to commit an offence. article 14 of the constitution, set out in part iii of the constitution sex is a sound classification and is general in nature and has to be read with other provisions of the constitution & the constitution itself provides for special provisions in the case of women and children. the two articles read together validate the impugned clause in section 497, i.p.c. vide yusuf abdul aziz v. the state of bombay 1954 scr.....

Full Judgment

L.S. Mehta, J.

1. The brief facts of this case are that accused Mst. Jannat is the married wife of complainant Peer Khan She had been married to him some 15 years ago. Subsequently Peer Khan fell ill and was admitted to Baran Hospital Accused Bashir Mohammad, brother of Peer Khan, developed illicit connection with Mst. Jannat during the illness of her husband. Jannat started living with Bashir Mohammed. Peer Khan, therefore, made a complaint in the Court of Sub Divisional Magistrate, Baran, under Sections 497 and 498, I.P.C. The Sub-Divisional Magistrate by has order, dated November 6, 1970, discharged accused Bashir Mohammed and Mst. Jannat. A revision petition was presented to the Court of Additional Sessions Judge, Baran, against the above order. The relevant portion of the order of learned Additional Sessions Judge runs as below:

This evidence is sufficient for proceedings with the accused persons under Section 498, I.P.C. because from this evidence a prima facie case is made out against both the accused persons.

Both Mst. Jannat and Bashir Mohammed felt aggrieved against the above order and have taken this revision-application in this Court. The revision-petition was admitted only in respect of Mst. Jannat

2. The only legal point which merits consideration is whether Mst. Jannat can be held liable for the offence under, Section 498, I.P.C. In the case of adultery it is distinctly enacted in Section 497, I.P.C. that a wife is not punishable as an abettor. It is, therefore, inconsistent to punish her as an abettor of the minor offence under Section 498, I.P.C. See in Re Balambai 26 ILR Mad. 463, Abetment can as given in Section 107, I.P.C. be constituted (1) by instigating a person to commit an offence; or (12) by engaging in a conspiracy to commit it; or (3) by intentionally aiding a person to commit it. Abetment implies a certain degree of activity in the abettor. Enticement donates a state of passivity on the part of the woman and as such none of the ingredients of Section 107, I.P.C. is likely to be attracted.

3. The last sentence in Section 497, I.P.C. reads:

In such a case the wife shall not be punishable as en abettor.

This provision obviously appears to be discriminatory to Article 15 of the Constitution of India. The relevant portion of Article 15 of the Constitution is this:

The State shall not discriminate against any citizen on grounds only of...sex.

But Clause (3) of the same Article lays down:

Nothing in this article shall prevent the State from making any Special provision for women....

It cannot be held that Clause (3) should be confined only to provisions which are beneficial to women. The provision which prohibits punishment does not tantamount to a licence to commit an offence. Article 14 of the Constitution, set out in Part III of the Constitution Sex is a sound classification and is general in nature and has to be read with other provisions of the Constitution & the Constitution itself provides for special provisions in the case of women and children. The two Articles read together validate the impugned clause in Section 497, I.P.C. vide Yusuf Abdul Aziz v. The State of Bombay 1954 SCR 930.

4. For the foregoing reasons, learned Additional Sessions Judge, Baran, has taken a wrong decision that Mst. Jannat should also be prosecuted under Section 498. I.P.C. This revision-petition filed by Mst. Jannat is accordingly accepted. The judgment of the Court below qua Mst. Jannat is quashed and she is discharged.

Same Court & Year Rajasthan · 1972 Same Parties Bashir Mohammed and anr. vs Peer Khan Same Subject Criminal Same Judge L.S. Mehta, J.

Criminal