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SUPREME COURT OF INDIA
K.M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE, HRISHIKESH ROY, C.T. RAVIKUMAR, JJ.
Joseph Shine – Petitioner
Versus
Union Of India – Respondent
Miscellaneous Application No. 2204 OF 2020 In Writ Petition (Criminal) No. 194 of 2017 With Miscellaneous Application No. 1702 OF 2021 In Writ Petition (Criminal) No. 194 of 2017
Decided On : 31-01-2023
Indian Penal Code, 1860 – Section 497 – Criminal Procedure Code, 1973 – Section 198 – Constitution of India – Article 33 – Adultery – Section 497 of IPC and Section 198 of Cr.P.C. were declared unconstitutional – Judgment of this Court in Joseph Shine v. Union of India (2019) 3 SCC 39 was not at all concerned with effect and operation of relevant provisions in the Acts which have been placed before Court by applicant – This Court was neither called upon nor has it ventured to pronounce on effect of Sections 45 and 63 of 1950 Act as also corresponding provisions in other Acts or any other provisions of Acts – Scheme of Acts in the context, in particular, of Article 33 of Constitution did not fall for consideration of this Court – Miscellaneous Application disposed of with such clarification. (Paras 23 and 24)
Facts of the case:
Applicant is seeking clarification of judgment of this Court reported in Joseph Shine v. Union of India (2019) 3 SCC 39. It is the case of the applicant that this Court has undoubtedly proceeded to find Section 497 of Indian Penal Code, 1860 as unconstitutional as it offended Articles 14, 15 and 21 of Constitution of India. However, it is case of applicant that officers of Armed forces are subject to statutory provisions, viz., Army Act, 1950, Navy Act, 1957 and Air Force Act, 1950.
Findings of Court:
This Court in the case in question was concerned only with the validity of Section 497 IPC and Section 198 (2) of the Code of Criminal Procedure, 1973. This Court spoke through separate but concurrent judgments. Apart from lead judgment of Hon’ble Mr. Justice Dipak Misra, former Chief Justice of this Court, and with whom, Hon’ble Mr. Justice A. M. Khanwilkar concurred, other learned Judges wrote separate opinions. However, they agreed that Section 497 IPC and Section 198 Cr.P.C. were unconstitutional.
Result : Miscellaneous Application disposed of with clarification.
ORDER
MISCELLANEOUS APPLICATION NO. 2204 OF 2020 IN WRIT PETITION (CRIMINAL) NO. 194 OF 2017
(1) Applications for intervention and impleadment are allowed.
(2) This miscellaneous application is filed by the Union of India seeking the following clarification:
“(a) That persons subject to Army Act, Navy Act and Air Force Act, by virtue of Article 33 of the Constitution of India, being a distinct class, any promiscuous or adulterous acts by such persons should be allowed to be governed by the provisions of Sections 45 or 63 of the Army Act, Sections 45 or 65 of the Air Force Act and Sections 54(2) or 74 of the Navy Act being special legislation and considering the requirements of discipline and proper discharge of their duty.”
(3) The applicant is seeking clarification of the judgment of this Court reported in Joseph Shine v. Union of India (2019) 3 SCC 39. It must be noticed that the applicant was the sole respondent in the said case.
(4) The reasons which have driven the applicant to seek the clarification are as follows:
It is the case of the applicant that this Court has undoubtedly proceeded to find Section 497 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for brevity) as unconstitutional as it offended Articles 14, 15 and 21 of the Constitution of India. However, it is the case of the applicant that officers of the Armed forces are subject to statutory provisions, viz., Army Act, 1950, Navy Act, 1957 and the Air Force Act, 1950 (hereinafter referred to as ‘Acts’).
(5) Our attention is further drawn to Article 33 of the Constitution which reads as follows:
“33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.— Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a)to (c),
be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.”
(6) It is the case of the applicant that the impression has been generated and is sought to be perpetuated that in the light of the judgment of which the clarification is sought, nothing more would survive even if a case is made otherwise under relevant provisions of the Acts in question.
(7) Ms. Madhvi Divan, learned Additional Solicitor General, who appears on behalf of the applicant, drew our attention, as an illustration, to the following provisions of the Army Act, 1950 (hereinafter referred to as ‘1950 Act’ for brevity).
Chapter VI deals with offences thereunder. Our attention is drawn to Section 45:
“45. Unbecoming conduct. Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.”
(8) She further draws our attention to Section 63:
“63. Violation of good order and discipline. Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”
(9) Finally, she drew our attention to Section 69:
69.Civil offences. Subject to the provisions of section 70, a
Adultery – Section 497 of IPC and Section 198 of Cr.P.C. are unconstitutional – Members of Armed Forces have their own set of laws.
Civil offences under the Army Act may be concurrently tried by civil courts and court-martials; proper authority notification is essential for jurisdictional clarity.
The court affirmed that custody of accused military personnel remains with Court Martial until a charge sheet is filed, emphasizing adherence to statutory protocols in handling sexual offences.
(1) Commandant of BSF has jurisdiction to seek clarification or order an additional Record of Evidence (RoE).(2) When an amendment is purely clarificatory or declaratory in nature, it is deemed to o....
The punishment of reduction in rank and deprivation of badges of good conduct awarded in summary trial are amenable to the Jurisdiction of the Armed Forces Tribunal.
The Court determined that minor punishments, including reprimands, fall under 'service matters,' thus the Armed Forces Tribunal has jurisdiction to hear such cases despite their non-dismissal nature.
Sanction for prosecution – In absence of previous sanction criminal proceedings cannot continue.
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