1. A curative petition shall be governed by the judgment of the Court in the case of Rupa Ashok Hurra v. Ashok Hurra and Anr. [2002 (4) SCC 388] and as per Order XLVIII of the Rules.
2. It shall contain specifically that no new grounds have been taken and the grounds mentioned in the petition had been taken in the application for review, which was dismissed by circulation.
3. It shall be accompanied by —
(i) a certificate of the senior advocate that the petition meets the requirements delineated in the case mentioned in clause (1) above;
(ii) a certified or authenticated copy of the judgment or order complained of; and
(iii) a certificate of the advocate on-record to the effect that it is the first curative petition in the impugned matter.
A curative petition under Order XLVIII of the Rules shall be first circulated to, and heard by, a Bench of the three senior-most Judges and the Judges, who passed the judgment or order complained of, if available.
Unless otherwise ordered by the Court, a curative petition shall be disposed of by circulation, without any oral arguments. If the Bench before which the petition was circulated concludes, by a majority, that the matter needs hearing, then it shall
be listed before the same Bench, as far as possible.
In this regard, it is necessary to understand what has been stated in Rupa Ashok Hurra case. Paragraph 52 of the said decision reads as follows:
The Petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the above requirements.
9. Paragraph 52 clearly lays down that the curative petition shall aver specifically that the ground mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a senior advocate with regard to the fulfillment of the above requirements. The constitution of the Bench has been laid down in paragraph 53. The relevant part of the said paragraph is as follows:
We are of the view that since the matter relates to re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.
10. Regard being had to what has been stated by the Constitution Bench, the Rule position of Order XLVIII which deals with the curative petition has to be appreciated. For the sake of appropriate appreciation, the entire Rule is reproduced below:
1. Curative Petitions shall be governed by judgment of the Court dated 10th April, 2002 delivered in the case of Rupa Ashok Hurrah v. Ashok Hurrah and Ors. in Writ Petition (C) No. 509 of 1997.
2. (1) The Petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the Review Petition and that it was dismissed by circulation.
(2) A Curative Petition shall be accompanied by a certificate of the Senior Advocate that the petition meets the requirements delineated in the above case.
(3) A curative petition shall be accompanied by a certificate of the Advocate on Record to the effect that it is the first curative petition in the impugned matter.
3. The Curative Petition shall be filed within reasonable time from the date of judgment or Order passed in the Review Petition.
4. (1) The curative petition shall be first circulated to a Bench of the three senior-most judges and the judges who passed the judgment complained of, if available.
(2) Unless otherwise ordered by the Court, a curative petition shall be disposed of by circulation, without any oral arguments but the Petitioner may supplement his petition by additional written arguments.
(3) If the bench before which a curative petition was circulated concludes by a majority that the matter needs bearing then it shall be listed before the same Bench, as far as possible.
(4) If the Court, at any stage, comes to the conclusion that the petition is without any merit and vexatious, it may impose exemplary costs on the Petitioner.
11. It is submitted by Mr. Raju Ramachandran, learned senior Counsel appearing for the Petitioner that the view expressed by Kurian, J. is absolutely in consonance with the Rule, inasmuch as the learned Judges who decided the review petition were not parties to the Bench that decided the curative petition. He has given immense emphasis on Rule 4(1) and the dictionary clause in Rule 2(1)(k), which defines the term “judgment”. The same reads as follows:
2. (1) In these rules, unless the context otherwise requires-
(k) ‘judgment’ includes decree, order, sentence or determination of any Court, Tribunal, Judge or Judicial Officer.
12. The question, in essence, would be whether the term ‘order’ which forms a part of the definition of ‘judgment’ as stipulated under Order I Rule 2(1)(k) would mean that the order in review or the judgment passed in the main judgment. On a studied scrutiny of paragraph 53 of Rupa Ashok Hurra (supra) and the preceding paragraph which we have reproduced hereinabove, the curative petition has to be circulated to a Bench of three senior-most Judges, and the Judges who had passed the judgment complained of. Needless to say, the availability has been mentioned therein. The rule has been framed in accord with the principle laid down by the Constitution Bench.
13. We are required to understand what is meant by the words “judgment complained of. According to Rupa Ashok Hurra (supra) principle, a second review is not permissible. However, a curative petition is evolved in exercise of power Under Article 142 of the Constitution of India to avoid miscarriage of justice and to see that in the highest Court, there is no violation of principle of natural justice, and bias does not creep in which is also fundamentally a facet of natural justice in a different way. We reiterate at the cost of repetition, whether other grounds can be taken or not, need not be adverted to by us. The principle of review as is known is to re-look or re-examine the principal judgment. It is not a virgin ground as has been held by Krishna Iyer, J. in Sow Chandra Kante and Another Vs. Sheikh Habib, AIR 1975 SC 1500 : (1975) 1 SCC 674 : (1975) 3 SCR 933 : (1975) 7 UJ 324 . The said principle has been reiterated in many an authority. Thus, it is luculent that while this Court exercises the jurisdiction in respect of a curative petition, it is actually the principal judgment/main judgment, which is under assail.
14. The said judgment is the main judgment and in actuality attaches finality to the conviction in a case and the matter of re-examination is different. The curative petition is filed against the main judgment which is really complained of. The words “complained of has to be understood in the context in which the Constitution Bench has used. The majority of the Constitution Bench, as we understand, was absolutely of the firm opinion that a review of a review would not lie and an Article 32 petition would not be maintainable and, therefore, such a method was innovated. [ YAKUB ABDUL RAZAK MEMON Vs. STATE OF MAHARASHTRA AND OTHERS (2015) 3 SCC(Cri) 673]
Categories: Supreme Court Practice and Procedute