SESSIONS JUDGE,SURENDRANAGAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS Reference has been made to this Court by the then learned Sessions Judge, Surendranagar under Section 395 of the Code of Criminal Procedure raising following questions and to consider the question of validity of Section 498A of the Indian Penal Code on the ground that it suffers from gender bias inasmuch as it deals with causes of harassment and cruelty to wife by husband or relatives of husband and it fails to take notice of reverse situation i.e. harassment by wife to the husband. While making the Reference the learned Judge has raised the following questions for consideration and adjudication.

(2.) THE facts leading to the present Reference made under Section 395 of the Code of Criminal Procedure in nutshell are as under:

(3.) MS . Shah, learned Additional Public Prosecutor has vehemently submitted that as such the present Reference under Section 395 of the Code of Criminal Procedure is invalid and / or unwarranted. It is submitted that all conditions which are provided under Section 395 of the Code of Criminal Procedure for making the Reference to High Court are not satisfied. It is submitted that in the present case as such the trial / Sessions Case has been disposed of by the learned Judge at the time of making a Reference and therefore, the Reference under Section 395 of the Code of Criminal Procedure made by the learned Judge is invalid inasmuch as no case was pending before him and therefore, all the conditions of Section 395 of the Code of Criminal Procedure are not satisfied. It is submitted that considering Section 395 of the Code of Criminal Procedure where any Court is satisfied that the case pending before it involves a question as to validity of an Act or Ordinance of any provision containing an Act or Ordinance, determination which is necessary for the disposal of the Court, the concerned Court may make a Reference to the High Court. It is submitted that considering subsection (2) of Section 395 of the Code of Criminal Procedure, pending the decision of such Reference, the Court making a Reference may either commit the accused to jail or release him on jail to appear when called upon, meaning thereby the case necessarily has to be kept pending. It is submitted that in the present case neither the determination of the questions referred are necessary for the disposal of the case nor even the trial / case has been kept pending. In support of her above submissions, Ms. Shah, learned Additional Public Prosecutor has heavily relied upon the decision of the Jammu and Kashmir High Court in the case of Abdul Rashid Shalla vs. Jagdish Lal and others reported in AIR 1969 J and K 60 as well as decision of the Andhra Pradesh High Court in the case of Nadikatla Suryanarayana vs. Forest Range Officer, Kurupam and others reported in AIR 1968 Andhra Pradesh 128.