RAJENDRA KHARE versus SWAATI NIRKHI AND ORS. on 28 January 2021

1. This review petition has been filed praying that the Order dated18.05.2018 passed in Transfer Petition (Crl.) No. 262 of 2018 and theOrder dated 05.06.2018 dismissing the M.A. be reviewed.

2. Brief facts of the case giving rise to this review petition nowneed to be noted:- 2.1 The review petitioner lodged the First Information ReportNo.39/2016 in Police Station, Mangol Puri, Delhi under Section389/34 Indian Penal Code, in which respondent Nos.1 to 5 to thisreview petition were made accused. The Invesigating Officer aftercompleting investigation submitted a charge sheet against all theaccused.

2.2 The learned Metropolitan Magistrate, North-West Delhi tookcognizance of the offence and issued summons to all the accusedfor appearance on 02.03.2018. On 05.03.2018, the accused didnot appear, the Court observed that despite service of summon allaccused are absent, hence, issue fresh summons all the accusedfor 02.05.2018. On 02.05.2018, applications were filed forexemption from personal appearance by accused persons. Thelearned Magistrate allowed the application subject to filing oforiginal medical certificates.

2.3 The respondent Nos.1 to 3 and 5 filed transfer petition on08.05.2018 being Transfer Petition (Crl.) No.262/2018 under A

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[2021] 1 S.C.R.

ASection 406 of Cr.P.C. seeking transfer of trial of Criminal CaseNo.3483 of 2017. In the transfer petition, following were the threerespondents, who were impleaded:-

1. State (NCT of Delhi)

Through the Commissioner of Police,

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I.P. Estate, New Delhi -110012.

2. Mohan Srivastava aliasAkahauri Onkar Nath,S/o Late Sh Akhauri Bholanath,Resident of Near Bairagi Harijan Temple, P.S. Delha,District Gaya (Bihar) 823001.

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3. Jugal Kishore Yadav,S/o Sh Puna Prasad YadavR/o 13/137, Sector -16, Rohini, D

Delhi – 110 089.

2.4 Transfer petition was taken by this Court and following orderwas passed on 18.05.2018:- E

“Heard learned counsel for the petitioner.

Without expressing any opinion on merits, we direct thatproceedings in Crl. Case No.0003483 of 2017 titled “State Vs.Swati Nirkhi & Ors.” on the file of Metropolitan Magistrate461 North West, Rohini Courts, New Delhi shall standtransferred to the Court of Metropolitan Magistrate atAllahabad, Uttar Pradesh, for hearing and disposal inaccordance with law. Records shall be sent to the transfereeCourt forthwith. It will be open to the parties to seek clubbingof all the matters, if any, pending between them in accordancewith law.

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The Registry to transmit a copy of this order to the courtsconcerned. Parties to appear before the transferee court onMonday, 9th, July, 2018.

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The transfer petition is, accordingly, allowed with the abovedirection.

Since this order being passed ex- parte, it will be open to therespondents to approach this Court, if aggrieved.”

2.5 The review petitioner, who had filed the F.I.R. No.39/2016was not made one of the respondents in the transfer petition. Thereview petitioner after order dated 18.05.2018 filed M.A.No.1589of 2018 praying for recall of the Order dated 18.05.2018 passedby this Court in Transfer Petition (Crl.) No.262 of 2018. ThisCourt dismissed the M.A. by passing following order:- “No further order is called for. M.A. is, accordingly,dismissed.”

2.6 After rejection of the M.A. No.1589 of 2018, the reviewpetitioner has filed this Review Petition (Crl.) No. 671 of 2018praying for review of orders dated 18.05.2018 and 05.06.2018. Inthis review petition, order was passed on 24.10.2018 allowing theapplication for open court hearing and notice was issued by thisCourt. This Court passed following order on 24.10.2018:- “Application for Open Court hearing is allowed. Delaycondoned. Issue notice.”

2.7 After issuance of notice, reply has been filed to the reviewpetition by respondent Nos. 1 to 3 as well as by respondent No.5– Jugal Kishore Yadav. A short affidavit on behalf of respondentNo. 3 dated 11.01.2021 as well as an affidavit on behalf of reviewpetitioner dated 19.01.2021 has also been filed.

3. We have heard Shri Rajendra Khare, the review petitionerappearing-in-person. Shri Rahul Shyam Bhandari, learned counsel hasappeared for respondent Nos.1, 2 and 3 and Shri Kaustubh Shukla,learned counsel has appeared for respondent No.5.

4. The petitioner appearing-in-person submits that reviewpetitioner, who was informant of the First Information Report was notmade party to the transfer petition filed under Section 406 Cr.P.C. Hesubmits that the review petitioner was not impleaded in the transferpetition so as to deny him the right to oppose the transfer petition. It issubmitted that the review petition was taken by this Court on 18.05.2018

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Afor preliminary hearing and without issuing any notice review petitionwas allowed. It is submitted that as per Order XXXIX of the SupremeCourt Rules, 2013, afterpreliminary hearing of the transfer petition, noticeis required to be issued, which notice has not been issued in the presenttransfer petition and on the first day of hearing the transfer petition wasallowed. The Miscellaneous Application was also summarily dismissedBwithout giving an opportunity of hearing to the review petitioner to file acounter affidavit. The orders passed by this Court dated 18.05.2018 aswell as 05.06.2018 were passed violating the principles of natural justice.It is further submitted that there were no good grounds to transfer theCriminal Case pending in the Rohini Court. It is submitted that out of 24Cwitnesses, which are cited, 21 witnesses belong to Delhi and transfer ofcriminal trial will cause immense prejudice. It is further submitted thateven after order of this Court dated 18.05.2018 in which this Courtdirected parties to appear before the transferee court on 09.07.2018, therespondents did not appear before the Court. Review petitioner submitsthat there is an error apparent on the face of the record in the judgmentDdated 18.05.2018, which deserves to be reviewed by this Court and thetransfer petition be heard on merits after giving an opportunity to reviewpetitioner also.

5. Shri Rahul Shyam Bhandari, learned counsel appearing forrespondent Nos. 1 to 3 contends that no ground have been made out toEreview the judgment dated 18.05.2018. Referring to reply filed on behalfof respondent Nos.1 to 3, learned counsel submits that in fact in theRegistry when the transfer petition was submitted, the review petitionerwas impleaded as respondent No.2 but on objection raised by the Registry,the name of respondent No.2 was deleted from the transfer petition and Fthere was no attempt on part of transfer petitioners not to implead thereview petitioner as one of the respondents. It was only due to objectionby Registry the name of respondent No.2 was deleted. It is furthersubmitted that this Court in its order dated 18.05.2018 had granted libertyto file an application since the order was being passed ex-parte andreview petitioner has exhausted his liberty by filing M.A. No.1589 ofG2018, which was rejected on 05.06.2018. It is submitted that all grounds,which are now sought to be raised in the review petition were alreadytaken in the M.A. No.1589 of 2018. This Court having rejected theM.A., there is no occasion to consider the review petition and the reviewpetitionbeing not maintainable deserves to be rejected.H

6. Learned counsel for the respondent No.5 opposing the reviewpetition has also made similar submissions as raised by learned counselfor the respondent Nos. 1 to 3.

7. We have considered the submissions of the parties and haveperused the records.

8. There is no dispute that the criminal case which has been soughtto be transferred in T.P. (Crl.) No.262 of 2018 was criminal case, whichwas registered on First Information Report filed by review petitioner inwhich FIR after investigation charge sheet has been filed and accusedwere summoned. It is also a fact that in the Transfer Petition (Crl.)No.262 of 2018, the review petitioner was not a party. The learned counselfor the respondent Nos. 1 to 3 has stated in his reply affidavit that initiallywhen petition was filed in the Registry, review petitioner was respondentNo.2 but on objection raised by the Registry, the name of respondentNo.2 was deleted from the transfer petition. We have no reason to doubtthe above statement on behalf of the counsel for the respondent Nos.1to 3, but the fact remains that Order dated 18.05.2018 was passed in thetransfer petition where the review petitioner was not a partyrespondent.It is also not disputed that M.A. No.1589 of 2018 filed by review petitionercame to be dismissed by order as noted above.

9. The review petition, which has been filed by the review petitionerto review the judgment is referable to Article 137 of the Constitutionread with Order XLVII of Supreme Court Rules, 2013. Article 137 ofthe Constitution provides as follows:- “137. Review of judgments or orders by the SupremeCourt.— Subject to the provisions of any law made by Parliamentor any rules made under article 145, the Supreme Court shallhave power to review any judgment pronounced or order madeby it.”

10. The Rules have been framed under Article 145 of theConstitution namely “The Supreme Court Rules, 2013” in which OrderXLVII deals with the review. Order XLVII Rule 1 provides:- “Order XLVII Review

1. The Court may review its judgment or order, but no applicationfor review will be entertained in a civil proceeding except on theground mentioned in Order XLVII, rule 1 of the Code, and in a A

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Acriminal proceeding except on the ground of an error apparent onthe face of the record.

The application for review shall be accompanied by a certificateof the Advocate on Record certifying that it is the firstapplicationfor review and is based on the grounds admissible under the Rules.

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11. The jurisdiction of this Court to review is, thus, specificallyprovided in the Constitution as well as Rules framed under Article 145.This Court while considering the review jurisdiction of Supreme Courthas noted and considered the scope and ambit of the review jurisdictionCin Vikram Singh alias Vicky Walia and Anr. Vs. State of Punjab andAnr., (2017) 8 SCC 518 in paragraph 23 of which judgment followingwas laid down:-

“23. In view of the above, it is clear that scope, ambit andparameters of review jurisdiction are well defined. Normally in aDcriminal proceeding, review applications cannot be entertainedexcept on the ground of error apparent on the face of the record.Further, the power given to this Court under Article 137 is widerand in an appropriate case can be exercised to mitigate a manifestinjustice. By review application an applicant cannot be allowed toEreargue the appeal on the grounds which were urged at the timeof the hearing of the criminal appeal. Even if the applicant succeedsin establishing that there may be another view possible on theconviction or sentence of the accused that is not a sufficient groundfor review. This Court shall exercise its jurisdiction to review onlywhen a glaring omission or patent mistake has crept in the earlierFdecision due to judicial fallibility. There has to be an error apparenton the face of the record leading to miscarriage of justice toexercise the review jurisdiction under Article 137 read with Order40 Rule 1. There has to be amaterial error manifest on the face ofthe record with results in the miscarriage of justice.”

G12. Learned counsel for the respondent Nos. 1 to 3 has also reliedon a Three-Judge Bench judgment of this Court in Mukesh Vs. State(NCT of Delhi), (2018) 8 SCC 149 where this Court has alsoelaborately considered the scope and ambit of the review jurisdiction ofthis Court. In paragraphs 5, 6 and 7, following was laid down by thisCourt:-H

“5. The power of review of the Supreme Court as envisagedunder Article 137 of the Constitution is no doubt wider than reviewjurisdiction conferred by other statutes on the Court. Article 137empowers the Supreme Court to review any judgment pronouncedor made, subject, of course, to the provisions of any law made byParliament or any rule made under Article 145 of the Constitution.

6. An application to review a judgment is not to be lightlyentertained and this Court could exercise its review jurisdictiononly when grounds are made out as provided in Order XLVIIRule 1 of the Supreme Court Rules, 2013 framed under Article145 of the Constitution of India. This Court in Sow Chandra Kantev. Sk. Habib [(1975) 1 SCC 674] speaking through V.R. KrishnaIyer, J. on review has stated the following in para 1: (SCC p. 675)

“1. … A review of a judgment is aserious step and reluctantresort to it is proper only where a glaring omission or patentmistake or like grave error has crept in earlier by judicialfallibility. A mere repetition, through different counsel, of oldand overruled arguments, a second trip over ineffectuallycovered ground or minor mistakes of inconsequential importare obviously insufficient.”

7. As per rule, review in a criminal proceeding is permissible onlyon the ground of error apparent on the face of the record. ThisCourt in P.N. Eswara Iyer v. Supreme Court of India [(1980) 4SCC 680] while examining the review jurisdiction of this Courtvis-à-vis criminal and civil proceedings had made the followingobservations in paras 34 and 35: (SCC p. 695)

“34. The rule [ Order XL Rule 1] , on its face, affords a widerset of grounds for review for orders in civil proceedings, butlimits the ground vis-à-vis criminal proceedings to “errorsapparent on the face of the record”. If at all, the concern ofthe law to avoid judicial error should be heightened when lifeor liberty is in peril since civil penalties are often less traumatic.So, it is reasonable to assume that the Framers of the Rulescould not have intended a restrictive review over criminal ordersor judgments. It is likely to be the other way about. Supposinganaccused is sentenced to death by the Supreme Court andthe “deceased” shows up in court and the court discovers thetragic treachery of the recorded testimony. Is the court helpless A

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to review and set aside the sentence of hanging? We think not.The power to review is in Article 137 and it is equally wide inall proceedings. The rule merely canalises the flow from thereservoir of power. The stream cannot stifle the source.Moreover, the dynamics of interpretation depend on the demandof the context and the lexical limits of the test. Here “record”means any material which is already on record or may, withthe permission of the court, be brought on record. If justicesummons the Judges to allow a vital material in, it becomespart of the record; and if apparent error is there, correctionbecomes necessitous.

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35. The purpose is plain, the language is elastic andinterpretation of a necessary power must naturally beexpansive. The substantive power is derived from Article 137and is as wide for criminal as for civil proceedings. Even thedifference in phraseology in the Rule (Order XL Rule 2) must,therefore, be read to encompass the same area and not toengraft an artificial divergence productive of anomaly. If theexpression “record”is read to mean, in its semantic sweep,any material even later brought on record, with the leave ofthe court, it will embrace subsequent events, new light andother grounds which we find in Order 47 Rule 1 CPC. We seeno insuperable difficulty in equating the area in civil and criminalproceedings when review power is invoked from the samesource.”

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F13. The ratio of the above judgments is that review in a criminalproceeding is permissible only on the ground of error apparent on faceof record. The submission which is pressed by the learned counsel forthe respondent Nos.1 to 3 is that in view of the fact that M.A. No.1589of 2018 was rejected by this Court, the review petition is not maintainable.The M.A., which was rejected, was an application to recall the judgment.GGrounds for recall of a judgment and grounds to review the judgmentcan be different. Review is a proceeding, which exists by virtue of theStatute. The M.A. which was rejected was not an application to reviewunder Article 137 as well as Order XLVII Rule 1, thus, by rejection ofM.A., it cannot be said that review petition filed by the review petitioneris not maintainable.H

14. The M.A. which was filed by the review petitioner and wasrejected by this Court on 05.06.2018 by order “No further order is calledfor” can in no manner take away the right of the review petitioner to filereview under Order XLVII Rule 1 of the Supreme Court Rules, 2013.This Court with regard to filing of applications styled as application forclarification, modification or recall of the judgment has observed that insubstance those applications are for review and they should not beentertained and the applicants be given leave to file a review applicationswhich may be dealt with as per the Rules of the Court. This Court inDelhi Administration vs. Gurdip Singh Uban and Ors., (2000) 7SCC 296, in paragraph 18 made the following observation:

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

15. We, thus, are of the considered opinion that by mere rejectionof M.A. filed by the review petitioner, the review petitioner cannot beprecluded from filing the present review petition. Review petition is,thus, fully maintainable and the argument of the respondent that reviewpetition is not maintainable cannot be considered. Further submission ofthe counsel for the respondent that all grounds which have been taken inthe review petition were earlier taken in M.A., and due to rejection ofM.A. they cannot be re-agitated, cannot be acceded to. The order passedin M.A. does not indicate that any of the issues which were raised wereconsidered and decided by this Court, and further the review beingstatutory proceedings cannot be considered on the specious plea raisedby the respondents.

16. The rectification of an order emanates from the fundamentalprinciples that justice is above all. In the Constitution, substantive powerto rectify or review the order by the Supreme Court has been specificallyprovided under Article 137 as noted above. The basic philosophy inherentin granting the power to the Supreme Court to review its judgment underArticle 137 is the universal acceptance of human fallibility.

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17. A perusal of the order dated 18.05.2018 in the transfer petitionindicates that the order was passed on the preliminary hearing of thetransfer petition and before passing the order, no notice was issued underOrder XXXIX Rule 2 of the Supreme Court Rules, 2013, which is to thefollowing effect:- A

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Applications For Transfer of Criminal Proceeding UnderSection 406 of The Criminal Procedure Code, 1973 AndSection 11 of The Terrorist Affected Areas (Special Courts)Act, 1984

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2. The petition shall be posted before the Court for preliminaryhearing and orders as to issue of notice. Upon the hearing theCourt, if satisfied that no prima facie case for transfer has beenmade out or that the petition is otherwise not tenable, shall dismissDthe petition; and if upon such hearing the Court is satisfied that aprima facie case for granting the petition is made out, it shall directthat notice be issued to the respondent to show cause why theorder sought for should not be made; such notice shall be given tothe accused person where he is not the applicant, to the respondentEState and to such other parties interested as the Court may thinkfit to direct.

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18. The order having been passed on the first day of hearingwithout issuing notice under Order XXXIX Rule 2, review petitioner isFright in his submission that there is an error apparent on the face of therecord. It is also relevant to notice that the learned counsel for therespondent has also submitted that since by the last line of the orderliberty was granted to the respondent to approach the Court, and M.A.was rejected accordingly on 05.06.2018; the review petition has also tomeet the same fate. The liberty was granted by this Court on 18.05.2018Gthat order being ex-parte, it will be open to respondents to approach thisCourt, if aggrieved. In the transfer petition, review petitioner was notone of the respondents, hence, it cannot be said that liberty was exhaustedby filing M.A. by review petitioner. The review petitioner has right toexercise statutory jurisdiction of filing application for review of theHjudgment.

19. We may in this context refer to the judgment of this Court inM.S. Ahlawat Vs. State of Haryna and Anr., (2000) 1 SCC 278. Inthe above case, this Court convicted the petitioner under Section 193Indian Penal Code. This Court recalled and set aside the said order afternoticing that the procedure which was required to be followed forconviction was not followed. In paragraphs 3 and 4 of the judgment, thesubmissions were noticed, and this Court after coming to the conclusionthat error was committed by not following the procedure, set aside theorder convicting the petitioner. Inparagraphs 12 and 15 following waslaid down:- “12. This Court has always adopted this procedure whenever itis noticed that proceedings before it have been tampered with byproduction of forged or false documents or any statement hasbeen found to be false. We have not been able to appreciate as towhy this procedure was given a go-by in the present case. Maybethe provisions of Sections 195 and 340 CrPC were not brought tothe notice of the learned Division Bench.

15. To perpetuate an error is no virtue but to correct it is acompulsion of judicial conscience. We, therefore, unhesitatinglyset aside the conviction of the petitioner for the offence underSection 193 IPC.…………………”

20. We having found that there was error apparent in the orderdated 18.05.2018, the said order has to be corrected. We, thus, allow thereview petition, and recall the order dated 18.05.2018; consequently theTransfer Petition (Crl.) No.262 of 2018 is revived. The review petitioneris impleaded as respondent No.4 in the transfer petition. One week’stime is allowed to respondent No.4 and other respondents to file counteraffidavit to the transfer petition and one week for filing rejoinder, if any.

21. List the transfer petition on 12.02.2021 for hearing.

22. The contempt petition stands closed.

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Kalpana K. Tripathy

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