Judgment

A. N. SEN, J.:- After obtaining requisite sanction from the Governor, a charge-sheet in Vigilance P. S. case No. 9 (2)-78 was filed by the State of Bihar against the respondents and three others for offences under Ss. 420/466/471/109/ 120-B. I. P. C. and under Ss. 5 (1) (a), 5 (1) (b) and 5 (1) (d) read with S. 5 (2) of the Prevention of Corruption Act, 1947. On the application of the Special Public Prosecutor made under S. 321 of the Code of Criminal Procedure the Special Judge, Patna in whose Court the case was pending, permitted the withdrawal of the case by the Prosecution. The validity of the withdrawal of the said case by the Prosecutor was challenged by the Petitioner in a Cr. Revision filed in the High Court at Patna. The Revision Petition was dismissed by the Patna High Court. Against the judgment and order of the Patna High Court dismissing the revision petition, the Petitioner filed an appeal in this Court with special leave granted by this Court. The appeal filed with special leave of this Court, came up for hearing before a Bench of this Court consisting of V. D. Tulzapurkar, J. Baharul Islam, J. and R. B. Misra, J. The appeal was heard at length for a number of days. Three separate judgments were delivered in the appeal by the three learned Judges. Tulzapurkar, J. for reasons recorded in his judgment allowed the appeal, set aside the order of withdrawal and directed the criminal case P. S. No. 2 (2) 78 to be proceeded with and, disposed of in accordance with law. Baharul Islam, J. for reasons stated in this judgment dismissed the appeal. R. B. Misra, J. for reasons stated in his judgment dismissed the appeal. In view of the majority decision, the appeal stands dismissed.

2. Against the judgment and order passed by this Court (reported in AIR 1983 SC 194) dismissing the appeal by virtue of the majority decision, the appellant has filed this review petition. A review Petition in conformity with the Rules of the Court has to be heard by the same Bench which heard the appeal. As Baharul Islam, J. has ceased to be a Judge of this Court at the time when the Review Petition came up for hearing, the Honble the Chief Justice of India constituted the present Bench to deal with the review petition. The Bench directed notice of the Review Petition to be served on the parties. After service of notice on the parties and after affidavits had been completed, the Review Petition came up for hearing before this Bench.

3. Mr. Venugopal, learned counsel appearing on behalf of the petitioner in the review petition, raised two main broad contentions, namely, (1) the judgment of Baharul Islam, J. is vitiated by a reasonable possibility of bias and as such the said judgment in the eye of law is no judgment at all; and (2), the majority decision suffers from serious legal infirmities and errors which are apparent on the face of the record.

4. The learned Attorney General, appearing on behalf of the State, has contended that the review petition is incompetent, as according to the learned Attorney General, a review petition in a criminal proceeding will not lie except on the ground of error of law apparent on the face of the record and in view of the considered judgment of the learned judges expressing majority view giving detailed reasons for their decision, it cannot be said that there is any error apparent on the face of the record. The learned Solicitor General, Mr. A. K. Sen, Mr. S. S. Ray and Mr. Rajinder Singh, learned counsel appearing on behalf of the respondents have adopted the submissions of Attorney General and have further contended that no grounds for review of the majority decision have been made out.

5. The principles governing a review petition are well settled.

Order XL Rule 1 of the SC Rules provides :-

"The Court may review its judgment or order but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, Rule 1 of the Code and in a criminal proceeding except