IMPORTANT POINT
Review applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with great sense of responsibility as well.

Headnote:(i) Constitution of India-Article 137-Supreme Court Rules, 1966-Order XL, Rule 3-Review Application-Maintainability-It is limited to error apparent on face of record-Such applications are not to be filed for pleasure of parties or even as a device for ventilating remorselessness, but ought to be resorted to with great sense of responsibility as well. (Paras 5 to 7)
       (ii) Constitution of India-Article 137-Supreme Court Rules, 1966-Order XL, Rule 3-Criminal Procedure Code, 1973-Section 406-Review Application-Gujarat riot case-Applications filed by State of Gujarat and one of the accused who faced trial in the case-Allegations that direction for fresh trial outside the State of Gujarat is unwarranted, in violation of principles of natural justice, without specific prayer in that regard and without consideration of real factual scenario-Patent falsity of claims made-Ulterior object behind the petition-Review applications held not maintainable.
       Held : Firstly, the plea that there was no "specific prayer" for transfer outside the State is totally false and misleading. Every prayer need not always be by a separate application, unless such prayer is the only relief sought or that the proceedings filed had no other claim, by way of relief. If the basis of grievance has been sufficiently disclosed openly and the relief sought is one among others specified as incidental or ancillary to main relief and the Court had the power to grant it, the fact that there is no formal or specific application which if at all may be relevant for purposes of determining the Court fee to be paid only, does not in any way undermine the powers of the Court to accord relief, so long as the request in this regard has been indisputably made and was also responded to by the parties before Court. (Para 9)
       Another plea which reflects ignorance about the judicial system is the plea that observations made without hearing has demoralising effect on the highest court of the State and Courts subordinate to it. This submission shows lack of awareness and want of understanding, apparently deliberately feigned, about functioning of Appellate Courts. When an appeal is heard and Appellate Court finds non-application of mind or erroneous application of law or perversity in appreciation of evidence it is not required to hear the concerned member(s) of judiciary whose orders are questioned. It is only when adverse comments are made personally attributing malafides or personal bias or involvement in the case, de hors the role as a judicial functionary and that too unrelated to the subject matter of lis, in a given case, the position may be different. Observations made while considering the legality, propriety, reasonableness, rationality or in a given case perversity in the manner of exercise of powers and passing orders by the Courts below under challenge in relation to a particular case do not reflect adversely on the competence of the entire network of Courts. We fail to understand how the observations made in any way can have demoralising effect on the highest Court of the State, or creating negative impact upon the State Judiciary in discharging its functions. (Para 14)
       The State Government s sympathies more for the accused than the victims become crystal clear when one looks at the State s stand that the ramifications of the transfer are serious insofar as the accused are concerned. The statement is made by an officer of the State on affidavit based on his knowledge, and are purportedly based on records of the case. One wonders how he could know it and how the records of the case reveal that the counsel for Zahira made "cursory oral submissions at the end of the submissions" regarding transfer or that the consequential question was "not permitted to be argued", which again is false, as noted above. We express our strong displeasure to such exhibition of recklessness and lack of rectitude shown in filing the application with such false and make believe statements in abundance. The deponent appears to be only a cat s paw and, therefore, as noted earlier we do not propose to take any action against him though the case warranted stringent action. At the least the aforesaid aspects lead to the inevitable conclusion that the application is thoroughly misconceived, a sheer abuse of process of law and deserves to be dismissed with exemplary costs. But we refrain from imposing any cost. (Paras 15 and 16)

JUDGMENT

Arijit Pasayat, J.-These two applications "for directions and modification of the judgment and order dated 12.4.2004 in Crl. Appeal Nos. 446-449 of 2004 and Crl. Appeal Nos. 450-452 of 2004 (Zahira Habibullah H. Sheikh and Anr. vs. State of Gujarat and Ors. and connected cases)" (reported in 2004(4) SCALE 375) have been filed by the State of Gujarat and one of the accused by name Tulsibhai Bhikhabhai Tadvi who faced trial in the case. It would be appropriate to first deal with application filed by the State of Gujarat.

2. The reasons for making this application primarily are that the direction for fresh trial outside the State of Gujarat is unwarranted, per incurium being not permissible in law, in violation of principles of natural justice, without consideration of real factual scenario, without specific prayer in that regard and reflect adversely on the credibility of the entire judiciary and administration of the State.

3. Mr. Mukul Rohatgi, learned senior counsel appearing for the applicant - State submitted that the direction given for transfer outside the State of Gujarat is not in accordance with law. According to him, such a direction could only have been given on a petition filed under Section 406 of the Code of Criminal Procedure, 1973 (in short the Code ) and not otherwise. Strong reliance is placed on a decision of this Court in A.R. Antulay v. R.S. Nayak and Another (1988 (2) SCC 602). Emphasis is laid on the observations at pages 729 and 730 paragraphs 204 and 206 respectively. It was submitted that even by exercise of power under Article 142 of the Constitution of India, 1950 (in short the Constitution ) also such a direction could not have been given. Reference in this context was made to Supreme Court Bar Association v. Union of India & Anr. (1998 (4) SCC 409). There is no power according to the applicant-State for suo moto directing such a course to be adopted.

4. The petition is in essence and substance seeking for a review under the guise of making an application for direction and modification apparently being fully aware of the normal procedure that such applications for review are not, unless Court directs, listed for open hearing in court, at the initial stage at least, before ordering notice to the other side and could be summarily rejected, if found to be of no prima facie merit. The move adopted itself is unjustified, and could not be countenanced also either by way of review or in the form the present application as well. The nature of relief sought, and the reasons assigned are such that even under the pretext of filing a review such an exercise cannot be undertaken, virtually for re-hearing and alteration of the judgment because it is not to the liking of the party, when there is no apparent error on record whatsoever to call for even a review. The said move is clearly misconceived and nothing but sheer abuse of process, which of late is found to be on the increase, more for selfish reasons than to further or strengthen the cause of justice. The device thus adopted, being otherwise an impermissible move by mere change in nomenclature of the applications does not change the basic nature of the petition. Wishful thinking virtually based on surmises too, at any rate is no justification to adopt such undesirable practices. If at all it should be for weighty and substantial reasons and not to exhibit the might or weight or even the affluence of the party concerned or those who represent such parties when they happen to be public authorities and institutions.

5. It is to be noted that a review application can be filed under Article 137 of the Constitution read with Order XL of the Supreme Court Rules, 1966 (in short the Rules). Rule 3 of Order XL is significant. It reads as follows:-

"Rule 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. T

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2004 Supreme(SC) 651

IMPORTANT POINTReview applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with great sense of responsibility as well.

Cases Referred (9)

IMPORTANT POINT
Review applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with great sense of responsibility as well.