2005 Supreme(SC) 1092

2005(5) Supreme 844
Supreme Court of India
(Under Articles 129 and 142 of the Constitution of India)
R.C. Lahoti, CJI, Y.K. Sabharwal, Mrs. Ruma Pal and Arun Kumar, JJ.
Sumer —Petitioner/Appellant
versus
State of U.P. —Respondent
Curative Petition (Crl.) No. 3 of 2005
In
Review Petition (Crl.) Nos. 864-865 of 2003
In
Criminal Appeal Nos. 577-578 of 1995
Decided on 29-8-2005
Counsel for the Parties :
For the Petitioner/Appellant : Syed Ali Ahmad, Syed Tanweer Ahmad, G.G. Upadhyay, Ms. Vinita G. Upadhyay, Awadhesh Kr. Singh, R.D. Upadhyay, Advocates.
For the Respondent : Ms. Reena Singh, Praveen Swarup and Jatinder Kumar Bhatia, Advocates.

Important point
Curative petition will be filed in excep­tional and in rarest of rare case and except when very strong reasons exist, Court should not entertain such application.

Headnote:Constitution of India—Articles 129 and 142—Petitioner and seven others were convicted under Section 302/149 IPC and conviction was upheld in ­appeal filed in Supreme Court—Review petitions filed by six accused including petitioner were dismissed—Curative petition—Grounds urged showed as if another regular appeal was filed—Petition was an abuse of remedy—Curative petition could be filed in exceptional and rarest of rare case and except when very strong reasons existed, Court should not entertain applica­tion seeking reconsideration of order—Curative petition to contain a certification by senior advocate with regard to ful­fillment of all requirements provided in Rupa Ashok Hurra case—Petition appeared to be an attempt to have another oppor­tunity for reappre­ciation of evidence and deserved to be dis­missed with exemplary cost.

       Held : In Rupa Ashok Hurra, while providing for the remedy of cura­tive petition, but at the same time to prevent abuse of such remedy and filing in that garb a second review petition as a matter of course, the Constitution Bench said that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of review petition. In this view, strict conditions including filing of certificate by a senior advocate were provided in Rupa Ashok Hurra. Despite it, the apprehension of the Constitution Bench that the remedy pro­vided may not open the flood gates for filing a second review petition has come true as is evident from filing of large number of curative petitions. It was expected that the curative peti­tions will be filed in exceptional and in rarest of rare case but, in practice, it has just been opposite. This Court, observing that neither it is advisable nor possible to enumerate all the grounds on which curative petition may be entertained, said that nevertheless the petitioner is entitled to relief ex debito justitiae if he establishes (1) viola­tion of principles of natu­ral justice in that he was not a party to the lis but the judg­ment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the pro­ceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehen­sion of bias and the judgment adversely affects the petitioner. To restrict the filing of the curative petitions only in genuine cases, Rupa Ashok Hurra provided that the curative petition shall contain a certification by a senior advocate with regard to the fulfillment of all the requirements provided in the judgment. Unfortunately, in most of the cases, the certification is casual without fulfilling the requirements of the judgment. (Para 5)

       The curative petition has been filed, inter alia, contending that the petitioner was allegedly armed with a lathi, none of injury found on the dead-body was attributable to a lathi and that the petitioner is not said to have given any exhortation and, therefore, his false implication was apparent. The convic­tion of the petitioner was for offence under Section 302 read with 149 IPC being a member of an unlawful assembly and not conviction simpliciter under Section 302 IPC. Section 149 pro­vides that if an offence is committed by any member of an unlaw­ful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. The members of unlawful assembly were carrying lethal weapons and committed murder of two persons of the same family and seriously injured the third person, all with gun-shots. The finding is that the petitioner was a member of such unlawful assembly and, there­fore, the question of attributing any role to him was wholly inconsequential. Another ground taken is that there are major contradictions in regard to the time of registration of FIR and that inadvertently it was not brought to the notice of this Court that there was enmity between accused family and the complainant family. The Bench has noticed in detail the enmity between the two families but has come to the conclusion that that by itself, is not a ground to disbelieve eye-witnesses including an injured eye-witness. The curative petition seeks to highlight following factors for disbelieving the testimony of the eye-witnesses:

        i) They were partisan, hostile and inimical.

        ii) PW1 could not have written the FIR in the manner al­leged.

       iii) Interpolation of the FIR.

       iv) Nature of injuries on PW4.

        v) Their attempt to improve the prosecution case.

       All the aforesaid aspects have been considered by this Court in the judgment dated 10th December, 2002. A perusal of the grounds taken in the curative petition makes it clear that the attempt is to have another opportunity for reappreciation of evidence. Such a course is impermissible. (Paras 8 and 9)