Review petition before Supreme Court under Article 137 of Constitution

Review petitions under Art. 137 of the Constitution read with Order 40 of the Supreme Court Rules, 1966 as amended. Under Art. 137 of the Constitution Supreme Court has power to review any judgment pronounced or order made by it subject to the provisions of any law made by the Parliament or any Rule made under Art. 145 of the Constitution. Supreme Court Rules have been framed in exercise of those powers. Rules 1 and 2 of Order 40 of the Supreme Court Rules are relevant and we may set out the same as under:-

“1. 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 47, Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

2. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review.”

9. As to the scope of review in criminal proceedings under Rule 1 it has been considered by the Constitution Bench in P. N. Eswara Iyer v. Registrar, Supreme Court of India (1980) 4 SCC 680 . This is how this Court considered its power of review in criminal proceedings (at pp. 818-19 of AIR):

“The Rule 1 of Order 40, on its face, affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis-a-vis criminal proceedings to ‘errors apparent on the face of the record.’ If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the ‘deceased’ shows up in Court and the Court discovers the tragic treachery of the recorded testimony. Is the Court helpless to review and set aside the sentence of hanging? We think not. The power to review is in Art. 137 and it is equally wide in all proceedings. The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limits of the test. Here ‘record’ means any material which is already on record or may, with the permission of the Court, be brought on record. If justice summons the judges to allow a vital material in, it becomes part of the record; and if apparent error is there, correction becomes necessitous.

The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Art. 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (Order 40, Rule 2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly, if the expression ‘record’ is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the Court, it will embrace subsequent events, new light and other grounds which we find in Order 47, Rule 1, C.P.C. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source.”

10. It would be seen that scope of review in criminal proceedings has been considerably widened by pronouncement in the aforesaid judgment. In any case review is not rehearing of the appeal all over again and to maintain a review petition it has to be shown that there has been miscarriage of justice. Of course, the expression “miscarriage of justice” is all embracing. Ordinarily application for review shall be disposed of by circulation without any detailed arguments unless otherwise ordered by the Court (Rule 3). Considering that review petitioners had been awarded death sentence we had heard the arguments in considerable detail in the appeals and we confirmed the award of death sentence on the review petitioners even so we thought it prudent that we should hear the arguments in review petitions as well.

The ambit of Rule 40(1) of Supreme Court Rules which provides grounds for review, as interpreted by this Court in P. N. Eswara Iyer v. Registrar, Supreme Court of India (1980) 4 SCC 680 , vis-a-vis criminal proceedings, is not confined to “an error apparent on the face of the record.” Even so by process of interpretation it cannot be stretched to embrace the premise indicated by my learned brother as a ground for review. That apart there are two difficulties in the way. The first is that the acceptance of the said proposition would result in equating the opinion of the majority to a ground analogous to ‘an error apparent on the face of the record’ and secondly in a Bench of three-Judges or of greater strength if a learned Judge is not inclined to confirm the death sentence imposed on a convict, the majority will be precluded from confirming the death sentence as that per se would become open to review.[ Suthenthiraraja alias Santhan and others Versus State through DSP/cbi, SIT, Chennai]

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