Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 681

SUPREME COURT OF INDIA
SURYA KANT, J.K. MAHESHWARI, JJ.
Ketan Kantilal Seth - Petitioner
VERSUS
The State of Gujarat and Ors. – Respondents
MISCELLANEOUS APPLICATION NO. OF 2023 [D.NO. 33197 OF 2022] IN TRANSFER PETITION (CRIMINAL) NOs. 333348/2021 WITH M.A. NO. 1935 OF 2022 IN T.P. (CRL.) NOs. 333348 OF 2021
Decided On : 04-08-2023

Advocates appeared:
For the Petitioner(s): Mr. Vikas Singh, Sr. Adv. Mr. Pawanshree Agrawal, AOR Ms. Deepika Kaila, Adv. Mr. Vaibhav, Adv. Mr. Kaishav, Adv. Ms. Soumya Dhankani, Adv. Ms. Shubhangi Negi, Adv.
For the Respondent(s): Mr. Tushar Mehta, Solicitor General Mr. Shreekant Neelappa Terdal, AOR Mr. Rajan Kr.Chourasia, Adv. Mr. Sanjay Kr.tyagi, Adv. Mr. Rajat Nair, Adv. Mr. Pratyush Shrivastava, Adv. Dr. N. Visakamurthy, Adv. Mr. Tushar Mehta, Solicitor General Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Siddhartha Dave, Sr. Adv. Mr. Mohd. Zahid Hussain, AOR Ms. Jemtiben A.O., Adv. Mr. Sandeep Garausa, Adv. Ms. Dipti Kumari, Adv. Mr. Comred Iqbal, Adv. Mr. Mahesh Jethmalani, Sr.Adv. Mr. Chirag Shah, Adv. Mr. Utsav Trivedi, Adv. Mr. Himanshu Sachdeva, Adv. Ms. Mugda Pande, Adv. Ms. Shivani Bhusan, Adv. Ms. Manini Roy, Adv. Mr. Piyush Tiwari, Adv. Ms. K.Sharma, Adv. Ms. Chatai Jugran, Adv. For M/S. Tas Law, AOR Ms. Deepanwita Priyanka, Adv. Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv. Mr. Sunil Fernandes, AOR Mr. Aneesh Mittal, AOR Ms. Jaikriti S. Jadeja, AOR Mr. Siddharth Jain, AOR Mr. Amod Kr. Bidhuri, Adv. Mr. Akarsh Garg, Adv. Mr. T.N. Durga Prasad, Adv. Mr. Yudhisthir Bharadwaj, Adv. Mr. Anoop Kumar, Adv. Mr. Prakash, Adv. Ms. Kavita Jha, AOR Mr. Vaibhav Kulkarni, Adv. Mr. Aditeya Bali, Adv. Mr. Nitin S. Tambwekar, Adv. Mr. Seshatalpa Sai Bandaru, AOR Mr. Pranab Prakash, AOR

IMPORTANT POINT
Modification/recall of Order passed by Supreme Court in Transfer Petition (Criminal) – Any application filed on pretext of ‘clarification/addition’ while evading recourse of review, ought not to be entertained and should be discouraged – Recall of entire order on instance of Intervenor is not justified.

Headnote:
Criminal Procedure Code, 1973 – Section 406 – Order XII Rule 3 of Supreme Court Rules, 2013 – Transfer petition – Modification/recall of Order passed by Supreme Court in Transfer Petition (Criminal) – Any alternation or addition to a Judgment pronounced by Court can be made only to correct a clerical or arithmetical mistake or an error arising out of an accidental slip or omission – Any application filed on pretext of ‘clarification/addition’ while evading recourse of review, ought not to be entertained and should be discouraged – Power of Supreme Court under Order XII Rule 3 is limited and can only be exercised sparingly with due caution while confining itself within parameters as described only to correct clerical/arithmetical mistakes or otherwise to rectify accidental slip or omission – Recall of entire order as prayed for on instance of Intervenor is not justified – However, in view of State of Maharashtra having filed application asking modification of Order, if trial is restarted from stage of framing of charges, it prima facie may cause prejudice to complainant – Order of transfer of criminal case modified. (Paras 11, 12, 15 and 21)
Facts of the case:
I.A. No. 156023/2022 and Miscellaneous Application No. 1935/2022 have been filed seeking modification/recall of order dated 09.09.2022 passed by this Court in Transfer Petition (Criminal) Nos. 333348 whereby, this Court allowed the said petition filed by Petitioner/accused and directed transfer of pending matters as prayed by him in petition to Court of Principal Judge, Bombay City Civil and Sessions Court, Fort, Mumbai – 400032, Maharashtra.
Findings of Court:
Transfer of R.C.C. No. 147/2002 by order dated 09.09.2022 passed in Transfer Petition (Criminal) Nos. 333348/2021 is restrained to the transferor Court with a clarification that trial shall proceed from the stage of final arguments by the Presiding Officer uninfluenced by directions in para 13(e) of order dated 09.09.2022.
Result : Applications disposed of.

ORDER

J. K. Maheshwari, J.

1. In the instant case, I.A. No. 156023/2022 and Miscellaneous Application No. 1935/2022 have been filed seeking modification/recall of order dated 09.09.2022 passed by this Court in Transfer Petition (Criminal) Nos. 333348 (hereinafter referred to as ‘Transfer Petition’), whereby, this allowed the said petition filed by Petitioner/accused Ketan Kantilal Seth and directed the transfer of pending matters as prayed by him in the petition to the Court of Principal Judge, Bombay City Civil and Sessions Court, Fort, Mumbai – 400032, Maharashtra.

2. For ready reference, reliefs as sought in the aforesaid two applications moved at the instance of intervenor namely ‘Omprakash Bhauraoji Kamdi’ and ‘Respondent No. 12/State of Maharashtra’ are reproduced as thus –

I. I.A. No. 156023/2022 – Application filed on 29.09.2022 by intervenor for ‘modification/recall’ of order dated 09.09.2022;

Prayer – a. Recall/modify the order dated 09.09.2022 passed by this Hon’ble Court in Transfer Petition (Crl.) Nos. 333348 of 2021 and transferring all the Trials pending against the Petitioner including the trial in R.C.C. No. 147/2002 pending before Ld. 2nd Additional Chief Judicial Magistrate, Nagpur which is already concluded by the Ld. Trial Court;

b. pass such other order(s) and further order/direction(s) as is deemed just and proper in the facts and circumstances of the case.

II. Miscellaneous Application No. 1935/2022 – Application filed on 26.10.2022 by Respondent No. 12/State of Maharashtra seeking ‘modification/recall’ of order dated 09.09.2022.

Prayer – a. Recall/modify the order dated 09.09.2022 passed by this Hon’ble Court in the present Transfer Petition, transferring all the pending trials against the Petitioner most of which are already at final stage of hearing by the Ld. Trial Court;

b. pass any additional order(s) and subsequent order/direction(s) considered reasonable and proper in the facts and circumstances of the case.

3. Before adverting to the contentions made in the case, it would be relevant to mention the brief backdrop of the proceedings/orders passed by this Court during the pendency of the Transfer Petition which ultimately led to the filing of the two applications by the intervenor and Respondent No. 12/State of Maharashtra respectively. The same is reproduced as thus –

i. 18.08.2021 – Accused Ketan Kantilal Seth filed Transfer Petition (Criminal) Nos. 333348/2021 before this Court. In the said petition, alongside State of Gujarat, State of West Bengal, Government of NCT of Delhi and respective coaccused persons involved in the trials, State of Maharashtra was also arrayed as Respondent No. 12.

ii. 09.09.2021 – This Court issued notice in the Transfer Petition and directed the other coaccused persons arrayed as respondents to be served.

iii. 05.10.2021 – This Court granted ‘stay’ on further proceedings in R.C.C. No. 147/2002 (main matter in question).

iv. 18.10.2021 – One Omprakash Bhauraoji Kamdi (the intervenor), filed I.A. No. 134476/2021 seeking intervention in the Transfer Petition primarily on the ground that he was an agriculturist and was by and large dependent on the financial aid of Nagpur District Central Cooperative Bank Limited (hereinafter referred to as NDCCB Ltd.), which was one of the banks allegedly defrauded by the accused.

v. 13.05.2022 – Stay granted by this Court vide order dated 05.10.2021 was modified on the pretext that the proceedings in R.C.C. No. 147/2002 are at the stage of final arguments. Considering the same, this Court directed the Trial Court to complete the hearing of arguments, though, restrained it from delivering/pronouncing the judgment in the said case.

vi. 22.07.2022 – With the consent of all the parties, the Transfer Petition was heard finally, and the order was reserved.

vii. 09.09.2022 – The Transfer Petition of accused Ketan Kantilal Seth was allowed while dismissing the intervention application of intervenor and the cases were accordingly transferre