Joseph Shine vs Union Of India Secretary

CRIMINAL ORIGINAL JURISDICTION

MISCELLANEOUS APPLICATION NO. 2204 OF 2020 IN WRIT PETITION (CRIMINAL) NO. 194 OF 2017

JOSEPH SHINE Petitioner(s)

VERSUS

UNION OF INDIA Respondent(s)

WITH

MISCELLANEOUS APPLICATION NO. 1702 OF 2021 IN WRIT PETITION (CRIMINAL) NO. 194 OF 2017

O R D E R

K. M. JOSEPH, J.

MISCELLANEOUS APPLICATION NO. 2204 OF 2020 IN WRIT PETITION (CRIMINAL) NO. 194 OF 2017

Signature Not Verified (1) Applications for intervention and impleadment are Digitally signed by Nidhi Ahuja Date: 2023.02.17 16:05:16 IST Reason: allowed.

1 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

(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

2 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

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

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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

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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, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,-

(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.

(10) She would immediately point out that in the

light of the judgment of this Court in Joseph Shine

5 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

(supra), since Section 497 IPC has been struck down

as unconstitutional and it being a civil offence

within the meaning of Section 69 of the 1950 Act, it

may not be open to the authorities to proceed

against an officer under Section 69. However, it is

the further case that it will not preclude the

authorities from invoking Section 45 and/or Section

63 of the 1950 Act. There are similar provisions

also in the Navy Act and in the Air Force Act.

It is her submission that the words adulterous

acts would bear the meaning which is assigned to it

in the dictionary. So also the word promiscuous.

They need not be found integrally connected with

Section 497 IPC as such.

(11) The members of Armed Forces, according to her,

are a class apart. She also drew our attention to

the objects and reasons of the 1950 Act. It is

pointed out that the law was enacted to provide for

an exhaustive Code. It is a complete Code. It

provides for self-regulation. According to her, the

decision of this Court in Joseph Shine (supra) must

be viewed in the context of the institution of

6 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

Marriage. It was not rendered in the context of a

workplace. Expanding further, learned Additional

Solicitor General would point out that the setting

in which the Armed Forces operate makes it a unique

workplace. Discipline among the members of the

Force is a matter which is indispensable.

Discipline would indeed be impaired, according to

her, if the high moral ground to be occupied by the

officers is diluted. The obstacle for the

authorities invoking Sections 45 and 63 of the 1950

Act as also the corresponding provisions in the

other two Acts will ultimately result in a situation

where, in the sensitive Forces, which the Armed

Forces are, it would engender and breed rank

indiscipline. The Forces which act as one and

proceed on the existence of a sense of brotherhood

would face breakdown of their morale. This was not

what was in contemplation of this Court when it

pronounced Section 497 IPC as unconstitutional.

Section 497 IPC has been struck down on the basis

that it offended Articles 14, 15 and 21 of the

Constitution. The Court it is contended was

7 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

distressed by the resort to values of a bygone era

[the Victorian era] and the considerations which

persuaded this Court to hold Section 497 IPC as

unconstitutional are not germane for the purposes of

deciding on the validity or the legality of actions

taken under Sections 45 and 63 of the 1950 Act.

She, in fact, did point out that there was an

element of discord even in the matter of right of

privacy which has been advocated in the judgment of

one of the learned Judges whereas it has not been so

evidenced in the judgment of another Judge. There

is a command structure in the Armed Forces which it

is indispensable to maintain. Such command

structure would be disturbed. She would, in this

regard, ask us to focus attention on the words

‘unbecoming conduct’ in Section 45 of the 1950 Act.

She would submit that in a case where the officer is

charged with what is unbecoming conduct and it

consists of an act of adultery, nothing can stand in

the way of the authorities taking action.

(12) Pertinently, the learned ASG would also point

out that the provisions are gender neutral and it

8 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

does not suffer from the vice found by this Court

when it struck down Section 497 IPC. Whoever, it

may be, man or woman, who acts in a manner which is

found to be unbecoming can be proceeded against,

therefore, under Section 45 of the 1950 Act.

Equally, she drew our attention to Section 63 and

points out the importance of the words ‘military

discipline’, viz-a-viz, good order. In other words,

any act or omission which is not specified in the

Act and is found to be prejudicial to good order and

military discipline would invite action under

Section 63. She even went to the extent of pointing

out that it can lead to a mutiny. She would submit

that an unrestful breakdown has, in fact, occurred.

(13) She would further point out that Union of India

is faced with the following situation:

If an action is taken under Sections 45 and 63

of the 1950 Act, it is being challenged. The bone

of contention raised by the officer/personnel is

that the action is tabooed by virtue of the judgment

of this Court. This has led to a number of cases

piling up. There is a certain amount of chaos.

9 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

This does not conduce to discipline being maintained

in the Armed Forces.

(14) Ms. Madhavi Divan, learned Additional Solicitor

General, would submit that this Court may, at least,

clarify that the judgment of this Court was not

concerned with and does not deal with the provisions

in question under the Acts.

(15) We also have had the benefit of hearing

Ms.Anannya Ghosh and Mr. K. Parameshwar, learned

counsel. They are counsel who appear for

intervenors. It is pointed out by them that the

application for clarification may not be allowed.

(16) They would submit that no case is made out for

ordering clarification. Proceedings would have to

be decided on the facts as are relevant to each

case. The application for clarification may not be

the solution to the problem which is projected by

the applicant. In the individual cases where this

question may arise, it is for the applicant to work

out its remedies and this Court may not issue an

omnibus clarification.

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MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

(17) Mr. Kaleeswaran Raj, learned counsel, appears

for the petitioner-Joseph Shine in the judgment

sought to be clarified.

He would submit that the application for

clarification may not be entertained. In this

regard, he drew our attention to an Order of this

Court in Supertech Limited v. Emerald Court Owner

Resident Welfare Association and Others

(Miscellaneous Application No. 1572 of 2021 in Civil

Appeal No. 5041 of 2021). The Court notices that

the applicant therein was seeking the following

prayers:

“(a) Modify the judgment dated 31.08.2021...to the extent that the Applicant may demolish a part of tower T- 17 as stipulated in paragraph 6 hereinabove;

(b) Pass an order of status quo in respect of Towers 16 & 17 in Emerald Court, Plot No. 4, Sector 93A, NOIDA till final orders are passed in the present application.”

(18) No doubt, this Court has proceeded to go into

the question as to the maintainability of the

application. In doing so, the Court has followed

the judgment by this Court in Delhi Administration

11 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

v. Gurdip Singh Uban and Others (2000) 7 SCC 296:

“In successive decisions, this Court has held that the filing of applications styled as “miscellaneous applications” or “applications for clarification/modification” in the guise of a review cannot be countenanced. In Gurdip Singh Uban (supra), Justice M Jagannadha Rao, speaking for a two-Judge Bench of this Court observed:

“17.We next come to applications described as applications for “clarification”, “modification” or “recall” of judgments or orders finally passed. We may point out that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued.

Order XL Rule 3 states as follows:

“3. Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party....”

In case notice is issued, the review petition will be listed for hearing, after notice is served. This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of “no

12 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

hearing”, we find that sometimes applications are filed for “clarification”, “modification” or “recall” etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. By describing an application as one for “clarification” or “modification”, — though it is really one of review — a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registrar of this Court in Sone Lal v. State of U.P. [(1982) 2 SCC 398] deprecating a similar practice.)

18. We, therefore, agree with the learned Solicitor General that the Court should not permit hearing of such an application for “clarification”, “modification” or “recall” if the application is in substance one for review. In that event, the Court could either reject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initially in chambers.”

(19) This view apparently has found acceptance in

13 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

the subsequent judgments. It was found undoubtedly

in the facts of the said case that the application

sought substantive modification of the judgment.

Thereafter, undoubtedly, this Court also held as

follows:

“12 The hallmark of a judicial pronouncement is its stability and

finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather (See Meghmala v G Narasimha Reddy, (2010) 8 SCC 383). A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”].

(20) He would submit that there is no occasion for

the applicant to file the present application.

14 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

(21) Learned counsel for the petitioner in the main

case would, in fact, agree with the applicant that

the questions which have been raised in the

application seeking clarification were not those

which arose for consideration in the judgment sought

to be clarified. This Court was concerned with the

validity of Section 497 IPC. It pronounced on the

same. It had nothing to do with the provisions

under the Acts.

(22) He would submit that no occasion has arisen for

this Court to clarify the order accordingly. In

fact, this Court posed the following question. In a

given case, the authority is presented with the

following set of facts. An officer is proceeded

against under Section 45 of the 1950 Act; the charge

against him is adultery; it is alleged, in other

words, that he has committed adultery within the

meaning of Section 497 IPC which has been struck

down. Mr. Kaleeswaram Raj, learned counsel for the

original petitioner, very fairly submits that, the

fact that Section 497 IPC has been struck down may

not stand in the way of the authorities proceeding

15 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

against the officer with the aid of the provisions

contained in Section 45 of the 1950 Act. Of course,

he adds that the decision must finally depend upon

the play of facts.

(23) 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 (hereinafter referred to as

‘Cr.P.C.’ for brevity). This Court spoke through

separate but concurrent judgments. Apart from the

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, the

other learned Judges wrote separate opinions.

However, they agreed that Section 497 IPC and

Section 198 Cr.P.C. were unconstitutional. The

premise on which the provision was struck down was

that it offended Articles 14, 15 and 21 of the

Constitution.

In this case, this Court had no occasion,

whatsoever, to consider the effect of the provisions

of the Acts in question. In fact, we may notice

16 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

that it is not as if this Court approved of

adultery. This Court has found that adultery may be

a moral wrong (per Hon’ble Ms. Justice Indu

Malhotra). This Court has also held that it will

continue to be a ground for securing dissolution of

marriage. It has also been described as a civil

wrong.

(24) In view of the fact that the scheme of the Acts

in the context, in particular, of Article 33 of the

Constitution did not fall for the consideration of

this Court, we must necessarily observe and clarify

that the judgment of this Court in Joseph Shine v.

Union of India (2019) 3 SCC 39 was not at all

concerned with the effect and operation of the

relevant provisions in the Acts which have been

placed before us by the applicant. In other words,

this Court was neither called upon nor has it

ventured to pronounce on the effect of Sections 45

and 63 of the 1950 Act as also the corresponding

provisions in other Acts or any other provisions of

the Acts.

(25) We only make this position clear and dispose of

17 MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc.

the miscellaneous application.

Pending applications stand disposed of.

MISCELLANEOUS APPLICATION NO. 1702 OF 2021 IN WRIT PETITION (CRIMINAL) NO. 194 OF 2017

(26) Application for impleadment is allowed.

(27) The miscellaneous application stands disposed

of. Pending applications stand disposed of.

………………………………………………………., J.

[ K.M. JOSEPH ]

………………………………………………………., J.

[ AJAY RASTOGI ]

………………………………………………………., J.

[ ANIRUDDHA BOSE ]

………………………………………………………., J.

[ HRISHIKESH ROY ]

………………………………………………………., J.

[ C.T. RAVIKUMAR ]

New Delhi;

January 31, 2023.

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