Jankar Singh vs State and Others

S.M. Rizvi, J.—The learned single Bench (Mir J) has formulated the following question to be determined by a Division Bench, ""whether

Section 303,of the Ranbir Penal Code is ultra-vires of the Constitution.

The reference has arisen in the following circumstances of the case.

The petitioner came to be charged by the learned Additional Sessions Judge, Jammu for the offence u/s 303, RPC, on 21-4-1995, after over-

ruling the learned counsel for the petitioner on his preliminary objection that in view of striking down Section 303, of the Indian Penal Code, by the

Supreme Court, in a case reported in Mithu Vs. State of Punjab, , such a charge cannot be framed.

By medium of this composite petition the petitioner has not only challenged the order of the learned Addl. Sessions Judge, charging him for the

offence u/s 303, RPC, but also seeks quashing of the said section, being violative of Constitution of India.

We have heard the learned counsel for the parties. We have also gone through the relevant law including the judgment of the apex Court

referred to above, and have given our anxious consideration to the matter.

Admittedly the Supreme Court has struck down Section 303, of the Indian Penal Code in the case reported in Mithu Vs. State of Punjab, . It

has held that ""while enacting Section 303, of the Indian Penal Code in terms which create an absolute liability, the framers of the Penal Code

ignored several important aspects of cases which attract the application of these action and of questions which are bound to arise under it. They

seems to have had only one kind of case in their mind and that is, the commission of murder of a jail official by a life convict."" On aconsideration of

various circumstances, it has been further held that Section 303, of the Penal Code violates the guarantee of equality contained in Article 14 as also

the right conferred by Article 21 of the Constitution of India that no person shall be deprived of his life or personal liberty except according to

procedure established by law. Needless to add that all cases of murder will now fall u/s 302, of the Penal Code and there should be no mandatory

sentence of death for the offence of murder.

Section 303, of the Indian Penal Code is pari-materia with Section 303 of the Ranbir Penal Code. Therefore it is to be seen as to whether the

striking down of Section 303, I.P.C. by the apex Court will automatically strike down Section 303, of the R.P.C. also.

Article 141 of the Constitution of. India envisages that the law declared by the Supreme Court shall be binding on all Courts within the territory

of India. From the constitutional point of view, this article is very important. Under the article the law declared by the Supreme Court is made the

law of the land, as the law administered by the Courts is really the law of the land.

It is beaten law that the decision pronounced by the Supreme Court is to be taken to be the law as promulgated by legislature and the joint

mandate of Articles 141 and 144 makes enforceable decisions of Supreme Court including its interpretation of any statutory provision. Decision of

Supreme Court is binding not only under Article 141 but also under the dectrine of binding precedent. The moment a judgment is pronounced by

the supreme Court, the law is declared and every-one is supposed to know the law. The Courts have to treat a decision of the Supreme Court as

an authority not only for what it declares or decides by express enunciation, but also for what follows from such declarations by clear implication

by way of logical deduction. Even obiter of the Supreme Court is to be taken note of with utmostrespect and may also be considered as an answer

to a proposition of law. Where the Supreme Court deliberately and with the intention of setting the law, pronounces upon a question, such

pronouncement is the law declared by the Supreme Court with the meaning of Article 141, and is binding on all Courts in India. A declaration of

law made by the Supreme Court remains a binding declaration irrespective of whether all pros and cons of matter to which it relates were put

forward or argued before it. And this would be specially so when the law declared is in regard to the constitutionality of a statute or a rule, and in

such case the binding effect cannot be measured by or limited by the points raised on behalf of the parties or to which express reference is made in

the judgment.

In AIR 1971 Delhi 2 (26) (Sic) (FB), it has been held that a decision of the Supreme Court holding a statute to be void does not repeal the

statute. The statute has to be regarded as ""still born,"" dead or non-existent.

In Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, it has been held that the law laid down by the Supreme Court applies

to all pending proceedings even with retrospective effect. When the highest court in the land gives an exposition of law, it has to be taken as if that

was always the position of law. All pending matters whether at trial stage or in appeals have to be disposed of accordingly.

In view of this discussion and in view of the fact that Section 303, R.P.C. pari-materia with Section 303, I.P.C. the striking down of the latter

by the apex Court will automatically result in striking down of the former. Section 303, I.P.C. and Section 303, R.P.C. are absolutely identical and

there fore, the mandate of the judgment of the Supreme Court will directly and automatically apply to Section 303,of Ranbir Penal Code. That

being so, once the apex Court has held Section 303, I.P.C. violative of Articles 14 and 21 of the Constitution of India, as a natural and logical

corollary Section 303, R.P.C. is also violative of the same. This is the only declaration required to be made by us in this case, nothing more and

nothing less.

The result is that the question referred to this bench is answered in positive, and consequently the order of the learned Addl. Sessions Judge,

Jammu dated 21-4-1994 also stands quashed. He is directed to proceed further in the matter in accordance with law.