1. Review petition challenging the transfer of a criminal trial and dismissal of a recall application, where the informant was not impleaded as a party to the transfer proceedings. (Para 1 , 2 )
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2021 Supreme(SC) 909
SUPREME COURT OF INDIA
Ashok Bhushan, Indu Malhotra, JJ.
Rajendra Khare - Appellant
Versus
Swaati Nirkhi & Ors. - Respondents
Review Petition (Crl.) No. 671 of 2018 in Transfer Petition (Crl.) No.262 of 2018 with Contempt Petition(C)No.1233/2019 in T.P.(Crl.)No.262/2018
Decided On : 28-01-2021
Important Points
Points of Law : To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience - Unhesitatingly set aside conviction.
Subject
Review - Criminal
Act Referred
Headnote
SUPREME Court Rules, 2013 - Order XXXIX Rule 2 – Constitution of India,1950 - Article 137 – Criminal Procedure Code,1973 - Section 406 - Indian Penal Code,1860 - Section 389/34 - First Information Report – Cognizance - Issued summons - Petitioner lodged First Information Report Police Station under Section 389/34 Indian Penal Code in which respondent Nos.1 to 5 to this review petition were made accused - Investigating Officer after completing investigation submitted a charge sheet against all accused - Learned Metropolitan Magistrate North-West took cognizance of offence and issued summons to all accused for appearance on accused did not appear Court observed that despite service of summon all accused are absent hence issue fresh summons all accused for applications were filed for exemption from personal appearance by accused persons - Learned Magistrate allowed application subject to filing of original medical certificates.
Finding Of The Court :
Order having been passed on first day of hearing without issuing notice under Order XXXIX Rule 2 review petitioner is right in his submission that there is an error apparent on face of record - It is also relevant to notice that learned counsel for respondent has also submitted that since by last line of order liberty was granted to respondent to approach Court and M.A. was rejected accordingly review petition has also to meet same fate - Liberty was granted by this Court on that order being ex-parte it will be open to respondents to approach this Court if aggrieved - In transfer petition review petitioner was not one of respondents hence it cannot be said that liberty was exhausted by filing M.A. by review petitioner - Review petitioner has right to exercise statutory jurisdiction of filing application for review of the judgment.
Result : Petition Allowed.
Legal Category Hierarchy
Advocates appeared:
Petitioner-in-person, for the Appellant; Ms. Madhvi Divan, ASG, Mr. B. V. Balaram Das, Advocate., Mr. Ayush Puri, Advocate., Mr. Pranay Ranjan, Advocate., Mr. Rahul Shyam Bhandari, Advocate., Mr. Konark Tyagi, Advocate., Mr. Kaustubh Shukla, Advocate., for the Respondent.
Petitioner-in-person, for the Appellant; Ms. Madhvi Divan, ASG, Mr. B. V. Balaram Das, Advocate., Mr. Ayush Puri, Advocate., Mr. Pranay Ranjan, Advocate., Mr. Rahul Shyam Bhandari, Advocate., Mr. Konark Tyagi, Advocate., Mr. Kaustubh Shukla, Advocate., for the Respondent.
Table of Contents
2. Petitioner alleges violation of natural justice and procedural errors regarding notice; respondents argue the review is not maintainable following the dismissal of the recall application. (Para 4 , 5 , 6 )
3. The court found that a dismissed recall application does not bar a statutory review and that failing to issue notice in a transfer petition is a patent error. (Para 8 , 13 , 14 , 15 , 17 , 18 )
4. Review in criminal proceedings is permissible upon an error apparent on the face of the record, including failure to follow mandatory procedural rules for issuing notice. (Para 10 , 11 , 12 , 18 )
5. Review petition allowed, transfer order recalled, transfer petition revived, and informant impleaded as a respondent. (Para 20 )
6. Does the dismissal of a Miscellaneous Application for recall of a judgment preclude the filing of a statutory review petition?
No. A review petition is a statutory proceeding under Article 137 of the Constitution and Order XLVII Rule 1 of the Supreme Court Rules, 2013. The rejection of an application for recall, clarification, or modification does not take away the right to file a statutory review. (Para 13 , 14 , 15 )
7. What is the ground for entertaining a review petition in a criminal proceeding before the Supreme Court?
In criminal proceedings, a review application is generally entertained only on the ground of an error apparent on the face of the record, which involves a glaring omission or patent mistake due to judicial fallibility that leads to a miscarriage of justice. (Para 10 , 11 , 12 )
8. Is notice mandatory before passing an order in a transfer petition for criminal proceedings under the Supreme Court Rules?
Yes. Under Order XXXIX Rule 2 of the Supreme Court Rules, 2013, if the Court is satisfied that a prima facie case for transfer is made out, it shall direct that notice be issued to the respondent, the State, and other interested parties. (Para 17 , 18 )
JUDGMENT
Ashok Bhushan, J. - This review petition has been filed praying that the Order dated 18.05.2018 passed in Transfer Petition (Crl.) No. 262 of 2018 and the Order dated 05.06.2018 dismissing the M.A. be reviewed.
2. Brief facts of the case giving rise to this review petition now need to be noted:-
2.1 The review petitioner lodged the First Information Report No.39/2016 in Police Station, Mangol Puri, Delhi under Section 389/34 Indian Penal Code, in which respondent Nos.1 to 5 to this review petition were made accused. The Investigating Officer after completing investigation submitted a charge sheet against all the accused.
2.2 The learned Metropolitan Magistrate, North-West Delhi took cognizance of the offence and issued summons to all the accused for appearance on 02.03.2018. On 05.03.2018, the accused did not appear, the Court observed that despite service of summon all accused are absent, hence, issue fresh summons all the accused for 02.05.2018. On 02.05.2018, applications were filed for exemption from personal appearance by accused persons. The learned Magistrate allowed the application subject to filing of original medical certificates.
2.3 The respondent Nos.1 to 3 and 5 filed transfer petition on 08.05.2018 being Transfer Petition (Crl.) No.262/2018 under Section 406 of Cr.P.C. seeking transfer of trial of Criminal Case No.3483 of 2017. In the transfer petition, following were the three respondents, who were impleaded:-
1. State (NCT of Delhi)
Through the Commissioner of Police,
I.P. Estate, New Delhi -110 012.
2. Mohan Srivastava alias
Akahauri Onkar Nath,
S/o Late Sh Akhauri Bholanath,
Resident of Near Bairagi Harijan
Temple, P.S. Delha,
District Gaya (Bihar) 823001.
3. Jugal Kishore Yadav,
S/o Sh Puna Prasad Yadav
R/o 13/137, Sector -16, Rohini,
Delhi - 110 089.
2.4 Transfer petition was taken by this Court and following order was passed on 18.05.2018:-
"Heard learned counsel for the petitioner.
Without expressing any opinion on merits, we direct that proceedings in Crl. Case No.0003483 of 2017 titled "State Vs. Swati Nirkhi & Ors." on the file of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi shall stand transferred to the Court of Metropolitan Magistrate at Allahabad, Uttar Pradesh, for hearing and disposal in accordance with law. Records shall be sent to the transferee Court forthwith. It will be open to the parties to seek clubbing of all the matters, if any, pending between them in accordance with law.
The Registry to transmit a copy of this order to the courts concerned. Parties to appear before the transferee court on Monday, 9th, July, 2018.
The transfer petition is, accordingly, allowed with the above direction.
Since this order being passed ex-parte, it will be open to the respondents to approach this Court, if aggrieved."
2.5 The review petitioner, who had filed the F.I.R. No.39/2016 was not made one of the respondents in the transfer petition. The review petitioner after order dated 18.05.2018 filed M.A.No.1589 of 2018 praying for recall of the Order dated 18.05.2018 passed by this Court in Transfer Petition (Crl.) No.262 of 2018. This Court 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 review petitioner has filed this Review Petition (Crl.) No. 671 of 2018 praying for review of orders dated 18.05.2018 and 05.06.2018. In this review petition, order was passed on 24.10.2018 allowing the application for open court hearing and notice was issued by this Court. This Court passed following order on 24.10.2018:-
"Application for Open Court hearing is allowed.
Delay condoned.
Issue notice."
2.7 After issuance of notice, reply has been filed to the review petition by respondent Nos. 1 to 3 as well as by respondent No.5 - Jugal Kishore Yadav. A short affidavit on behalf of respondent No. 3 dated 11.01.2021 as well as an affidavit on behalf of review petitioner dated 19.0
