Review by Supreme Court

Power of Review: The Supreme Court under Article 137 of the Constitution of India has the power to review any judgment pronounced, or any order made by it. Review Petitions are disposed of by circulation as per listing procedures. However, in death sentence cases, oral hearing has been made permissible, limited to 30 minutes as per the verdict in Sonu Sardar v. Union of India [2014 (9) SCC 737].

Year End Review 2019 – Ministry of Agriculture, Cooperation and Farmers Welfare

Launch of PM KISAN scheme; 8.12 crore beneficiaries registered till date Launch of farmers’ pension scheme PM Kisan Maan Dhan Yojana; Over 19 lakh beneficiaries registered till date Government constitutes a High Powered Committee of Chief Ministers for ‘Transformation of Indian Agriculture’

The major highlights of the Department of Agriculture, Cooperation and Farmers Welfare during the year 2019 are as follows:

Launch of Pradhan Mantri Kisan Maan Dhan Yojana (PM-KMY)

PM-KMY inaugurated by the Prime Minister Shri Narendra Modi on 12th September, 2019 provides for payment of minimum pension of Rs.3000/- per month to the eligible small and marginal farmers on attaining the age of 60 years.  It is voluntary and contributory pension scheme, with an entry age of 18 to 40 years. The monthly contribution by farmer ranges between Rs.55 to 200.  Central Government will contribute an equal amount in the pension scheme.  Till now 19, 19, 802 beneficiaries have been registered.

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SC dismisses Rafale review petitions said perception of individuals cannot be basis of a fishing and roving enquiry- 14/11/2019

We find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. We, thus, dismiss all the writ petitions.

Yashwant Sinha & Ors. Vs Central Bureau Of Investigation through its Director & Anr

IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL ORIGINAL JURISDICTION

Review Petition (Crl.) No.46 of 2019

IN

Writ Petition (Crl.) No.298 of 2018

YASHWANT SINHA & ORS. ….Petitioners

Versus

CENTRAL BUREAU OF INVESTIGATION Through its DIRECTOR & ANR.

….Respondents

(I.A. No. 69008/2019 – CLARIFICATION/DIRECTION, I.A. No. 69006/2019 – INTERVENTION APPLICATION, I.A. No. 71047/2019 – PRODUCTION OF RECORDS and I.A. No. 69009/2019 – STAY APPLICATION)

WITH

MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No. 182576/2018 – CORRECTION OF MISTAKES IN THE JUDGMENT)

R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-W)

MA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)

(I.A. No. 29248/2019 – INITIATING CRIMINAL PROCEEDINGS U/S 340 OF CRPC)

R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)

CONMT.PET.(Crl.) No. 3/2019 in R.P.(Crl.) No. 46/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)

(I.A. No. 63168/2019 – EXEMPTION FROM FILING O.T., I.A. No.71678/2019 – EXEMPTION FROM FILING O.T. and I.A. No. 66253/2019 – EXEMPTION FROM FILING O.T.)

JUDGMENT

SANJAY KISHAN KAUL, J.

(I.A. No. 63168/2019 – EXEMPTION FROM FILING O.T., I.A. No.71678/2019 – EXEMPTION FROM FILING O.T. and I.A. No. 66253/2019 – EXEMPTION FROM FILING O.T.)

1. Allowed subject to just exception.

MA 58/2019 in W.P.(Crl.) No. 225/2018 (PIL-W) (I.A. No. 182576/2018 – CORRECTION OF MISTAKES IN THE JUDGMENT)

2. The Union of India has filed the present application seeking correction of what they claim to be an error, in two sentences in para 25 of the judgment delivered by this Court on 14.12.2018. This error is stated to be on account of a misinterpretation of some sentences in a note handed over to this Court in a sealed cover.

3. The Court had asked vide order dated 31.10.2018 to be apprised of the details/cost as also any advantage, which may have accrued on that account, in the procurement of the 36 Rafale fighter jets. The confidential note in the relevant portions stated as under:

“The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain.”

4. It is the submission of the learned Attorney General that the first sentence referred to the sharing of the price details with the CAG. But the second sentence qua the PAC referred to the process and not what had already transpired. However, in the judgment this portion had been understood as if it was already so done.

5. On hearing learned counsel for the parties, we are of the view that the confusion arose on account of two portions of the paragraph referring to both what had been and what was proposed to be done. Regardless, what we noted was to complete the sequence of facts and was not the rationale for our conclusion.

6. We are, thus, inclined to accept the prayer and the sentence in para

25 to the following effect – “The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament and is in public domain” should be replaced by what we have set out hereinafter:

“The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC in the usual course of business. Only a redacted version of the report is placed before the Parliament and in public domain.”

7. The prayer is accordingly allowed.

8. The application stands disposed of.

R.P. (Crl.) No.46/2019 in WP (Crl.) No.298/2018

R.P.(Crl.) No. 122/2019 in W.P.(Crl.) No. 297/2018 (PIL-W)

MA 403/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)

(I.A. No. 29248/2019 – INITIATING CRIMINAL PROCEEDINGS U/S 340 OF CRPC)

R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)

9. The review petitions were listed for hearing in Court and elaborate submissions were made by learned counsel for the parties.

10. We may note that insofar as the preliminary objection raised by the Attorney General is concerned qua certain documents sought to be produced by the petitioners, that aspect was dealt with by our order dated 10.4.2019 and the said preliminary objection was overruled.

11. We cannot lose sight of the fact that unless there is an error apparent on the face of the record, these review applications are not required to be entertained. We may also note that the application under Section 340 of the Code of Criminal Procedure, 1973 partly emanates from an aspect which has been dealt with in our order passed today on the application for correction of the order filed by the Union of India.

12. We have elaborately dealt with the pleas of the learned counsel for the parties in our order dated 14.12.2018 under the heads of ‘Decision Making Process’, ‘Pricing’ and ‘Offsets’. However, before proceeding to deal with these aspects we had set out the contours of the scrutiny in matters of such a nature. It is in that context we had opined that the extent of permissible judicial review in matters of contract, procurement, etc. would vary with the subject matter of the contract and that there cannot be a uniform standard of depth of judicial review which could be understood as an across the board principle to apply to all cases of award of work or procurement of goods/material. In fact, when two of these writ petitions were listed before the Court on 10.10.2018, we had embarked on a limited enquiry despite the fact that we were not satisfied with the adequacy of the averments and the material in the writ petitions. It was the object of the Court to satisfy itself with the correctness of the decision making process.

13. We cannot lose sight of the fact that we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute. We had, thus, concluded in para 34 noticing that other than the aforesaid three aspects, that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry. We were, however, cautious to note that this was in the context of the writ petition filed under Article 32 of the Constitution of India, the jurisdiction invoked.

14. In the course of the review petitions, it was canvased before us that reliance had been placed by the Government on patently false documents. One of the aspects is the same as has been dealt with by our order passed today on the application for correction and, thus, does not call for any further discussion.

15. The other aspect sought to be raised specifically in Review Petition No.46/2019 is that the prayer made by the petitioner was for registration of an F.I.R. and investigation by the C.B.I., which has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts.

16. We do not consider this to be a fair submission for the reason that all counsels, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects. No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for.

17. Insofar as the aspect of pricing is concerned, the Court satisfied itself with the material made available. It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation. On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.

18. We have noted aforesaid that a plea was also raised about the “non-existent CAG report” but then at the cost of repetition we state that this formed part of the order for correction we have passed aforesaid.

19. It was the petitioners’ decision to have invoked the jurisdiction of this Court under Article 32 of the Constitution of India fully conscious of the limitation of the contours of the scrutiny and not to take recourse to other remedies as may be available. The petitioners cannot be permitted to state that having so taken recourse to this remedy, they want an adjudication process which is really different from what is envisaged under the provisions invoked by them.

20. Insofar as the decision making process is concerned, on the basis of certain documents obtained, the petitioners sought to contend that there was contradictory material. We, however, found that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it. In this context reference was made to (a) Acceptance of Necessity (‘AON’) granted by the Defence Acquisition Council (‘DAC’) not being available prior to the contract which would have determined the necessity and quantity of aircrafts; (b) absence of Sovereign Guarantee granted by France despite requirement of the Defence Procurement Procedure (‘DPP’); (c) the oversight of objections of three expert members of the Indian Negotiating Team (‘INT’) regarding certain increase in the benchmark price; and (d) the induction of Reliance Aerostructure Limited (‘RAL’) as an offset partner.

21. It does appear that the endeavour of the petitioners is to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be the jurisdiction to be exercised. All aspects were considered by the competent authority and the different views expressed considered and dealt with. It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision making process.

22. Insofar as the aforesaid pleas are concerned, it has also been contended that some aspects were not available to the petitioner at the time of the decision and had come to light subsequently by their “sourcing” information. We decline to, once again, embark on an elaborate exercise of analyzing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters.

23. An aspect also sought to be emphasized was that this Court had misconstrued that all the Reliance Industries were of one group since the two brothers held two different groups and the earlier arrangement was with the Company of the other brother. That may be so, but in our observation this aspect was referred to in a generic sense more so as the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it.

24. It is for the aforesaid reasons also that we find that there was no ground made out for initiating prosecution under Section 340 Cr.P.C.

25. We are, thus, of the view that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that our original decision was based within the contours of Article 32 of the Constitution of India.

CONMT.PET.(Crl.) No. 3/2019 in R.P.(Crl.) No. 46/2019 in W.P.(Crl.) No. 298/2018 (PIL-W)

26. The contempt petition emanates from an allegation against Mr. Rahul Gandhi, the then President of the Indian National Congress, on account of utterances made in the presence of several media persons on 10.4.2019 by him alleging that the Supreme Court had held that “Chowkidar (Mr. Narendra Modi, Prime Minister) is a thief.” The Supreme Court was also attributed to having held in consonance with what his discourse was, i.e., that the Prime Minister of India stole money from the Air Force and gave it to Mr. Anil Ambani and that the Supreme Court had admitted that Mr. Modi had indulged in corruption. It was stated that the Supreme Court had said that the Chowkidar is a thief.

27. On notice being issued, reply affidavit dated 22.4.2019 was filed averring that the comments were made on the basis of a bona fide belief and general understanding of the order even though the contemnor had not himself had the opportunity to see, read or analyse the order at that stage. It was further averred that there had not been the slightest intention to insinuate anything regarding the Supreme Court proceedings in any manner as the statements had been made by the contemnor in a “rhetorical flourish in the heat of the moment” and that his statement has been used and misused by his political opponents to project that he had deliberately attributed the utterances to the Supreme Court. In that context, it was averred that “nothing could be farther from my mind. It is also clear that no Court would ever do that and hence the unfortunate references (for which I express regret) to the Court order and to the political slogan in juxtaposition the same breath in the heat of political campaigning ought not to be construed as suggesting that the Court had given any finding or conclusion on that issue.”

28. The acceptance of such an affidavit was opposed by the petitioner, a BJP Member of Parliament, in the contempt petition. It was stated that instead of expression of any remorse or apology, attempt was made to justify the contemptuous statement as having been made in the heat of the moment.

29. On arguments having taken place in this context, and realizing the seriousness of the matter and the inadequacy of the affidavit, learned counsel for the contemnor took liberty to file an additional affidavit.
Vide order dated 30.4.2019, this Court left the admissibility and acceptance of such an affidavit to be considered on the subsequent date. An additional affidavit was filed on 8.5.2019 stating that the contemnor held this Court in the highest esteem and respect and never intended to interfere with the process of administration of justice. An unconditional apology was tendered by him by stating that the attributions were entirely unintentional, non-willful and inadvertent.

30. The matter was, once again, addressed by the learned counsel. We have given our thoughtful consideration to this issue.

31. We must note that it is unfortunate that without verification or even perusing as to what is the order passed, the contemnor deemed it appropriate to make statements as if this Court had given an imprimatur to his allegations against the Prime Minister, which was far from the truth. This was not one sentence or a one off observation but a repeated statement in different manners conveying the same. No doubt the contemnor should have been far more careful.

32. The matter was compounded by filing a 20 page affidavit with a large number of documents annexed rather than simply accepting the mistake and giving an unconditional apology. Better wisdom dawned on the counsel only during the course of arguments thereafter when a subsequent affidavit dated 8.5.2019 was filed. We do believe that persons holding such important positions in the political spectrum must be more careful. As to what should be his campaign line is for a political person to consider. However, this Court or for that matter no court should be dragged into this political discourse valid or invalid, while attributing aspects to the Court which had never been held by the Court. Certainly Mr. Gandhi needs to be more careful in future.

33. However, in view of the subsequent affidavit, better sense having prevailed, we would not like to continue these proceedings further and, thus, close the contempt proceedings with a word of caution for the contemnor to be more careful in future.

(I.A. No. 69008/2019 – CLARIFICATION/DIRECTION, I.A. No. 69006/2019 – INTERVENTION APPLICATION, I.A. No. 71047/2019 – PRODUCTION OF RECORDS and I.A. No. 69009/2019 – STAY APPLICATION)

34. In view of the orders passed above, these applications do not survive for consideration and the same are disposed of. Any other pending applications also stands disposed.

C.J.I.[Ranjan Gogoi]

J. [Sanjay Kishan Kaul]

New Delhi.

November 14, 2019.


IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

REVIEW PETITION (CRIMINAL) NO. 46 OF 2019

IN

WRIT PETITION (CRIMINAL) NO. 298 OF 2018

YASHWANT SINHA AND OTHERS … PETITIONER(S)

VERSUS

CENTRAL BUREAU OF INVESTIGATION
THROUGH ITS DIRECTOR AND ANOTHER … RESPONDENT(S)

AND CONNECTED MATTERS

JUDGMENT

K.M. JOSEPH, J.

1. I have perused the Order proposed by my learned Brother, Justice Sanjay Kishan Kaul. While I agree with the final decision subject to certain aspects considered by me, I would, by my separate opinion, give my reasons, which are as hereunder.

2. The common judgment in four Writ Petitions has generated three Review Petitions, a Contempt Petition and a Petition under Section 340 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.PC’ for

short) and an application seeking correction.

3. Review Petition (Criminal) No. 46 of 2019 is filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018. In the said Writ Petition, relief sought, inter alia, was to register an FIR and to investigate the complaint which was made by the petitioners and to submit periodic status reports. The reliefs, as are made in the clauses ‘a’ to ‘e’
of the prayer, read as follows:

“a. Issue writ of mandamus or any other appropriate writ directing Respondent No.1 to register an F.I.R. on the complaint that was made by the Petitioners on the 04th of October, 2018.

b. Issue writ of mandamus or any other appropriate writ directing the Respondent No.1 to investigate the offences disclosed in the said complaint in a time bound manner and to submit periodic status reports to the Court.

c. Issue writ of mandamus or any other appropriate writ directing the Respondent No.2 to cease and desist from influencing or intimidating in any way the officials that would investigate the offences disclosed in the complaint.

d. Issue writ of mandamus or any other appropriate writ directing the Respondent No.1 and Respondent No.2 to not transfer the C.B.I. officials tasked with investigation of the offences mentioned in the complaint.

e. Issue writ of mandamus or any other appropriate writ to ensure that the relevant records are not destroyed or tampered with and are transferred to the
CBI.”

4. Review Petition (Criminal) No. 122 of 2019 is filed by the petitioner in Writ Petition (Criminal) No. 297 of 2018. The reliefs sought in the said Writ Petition is as follows:

“(a) to constitute a Special Investigating Team (SIT) under the supervision of the Hon’ble Supreme Court with following mandate:

i. to investigate the reasons for cancellation of earlier deal for the purchase of 126 Rafale Fighter Jets.

ii. As to how the figure of 36 Fighter Jets was arrived at

without the formalities associated with such a highly sensitive defence procurement.

iii. to look into the alterations made by the Respondent No.2 about the pricing of the Rafale Fighter Jets in view of the earlier price of Rs.526 crores per Fighter Jets alongwith requisite equipments, services and weapons and Rs.670 crores without associated equipments,
weapons,Indiaspecific

enhancements, maintenance support and services; which resulted into the escalation of price of each Fighter Jets from Rs.526 crores to more than 1500 crores;

iv. to investigate as to how a novice company viz. Reliance Defence came in picture of this highly sensitive defence deal involving Rs.59,000 crores without having any kind of experience and expertise in making of Fighter Jets.

v. As to why name of ‘Hindustan Aeronautics Limited’ was removed from the deal?

vi. As to whether the decision of purchase of only 36 Rafale Fighter Jets instead of 126 was a compromise with the security of the Country or not?

vii. Whether the Reliance Defence or it’s sister concern or any

other individual or intermediary company has/have influenced the decision making of the purchase of Rafale Fighter Jets at substantially higher prices in the backdrop of the statement given by the then President of French Republic and the investment made by the Reliance Entertainment into the Julie

Gayet’s Firm Rouge International was made with a purpose to influence the decision of removal of the HAL and induction of Reliance Defence as partner of the Dassault;

(b) to terminate/cancel the inter-governmental agreement with the Govt. of French Republic signed on 23-09-2016 for the purchase of 36 Rafale Fighter Jets and to give direction to the Respondent No.3 to lodge an FIR and to report the progress of investigation to this
Hon’ble Court;

(c) to restore the earlier deal for the purchase of 126 Rafale Fighter Jets which was cancelled on 24.06.2015 by the Govt. of India.

(d) to bar the Dassault Reliance Aerospace Limited (DRAL) from handling/manufacturing the Rafale Fighter Jets;

(e) to direct the Respondent 1&2 to propose the Public Sector Company Hindustan Aeronautics Limited as the Indian Offset Partner of Dassault;”

5. Review Petition (Criminal) No. 719 of 2019 has been filed again by a sole petitioner in Writ Petition (Criminal) No. 1205 of 2018. The reliefs sought in the said Writ Petition is as follows:

“a) Issue an appropriate writ or order or direction directing the respondents to

file the details of the agreement entered into between the Union of India

and Government of France with regard to the purchase of 36 Rafale Fighter Jets in a sealed envelope.

b) Issue an appropriate writ or order or direction directing the respondents to furnish in a sealed envelope the information with regard to the present cost of Rafale Fighter Jets and also the earlier cost of the Rafale Fighter Jets during the regime of UPA Government;

c) Issue an appropriate writ or order or direction directing the respondents to furnish any other information in sealed envelope before the Hon’ble Supreme Court with regard to the controversy erupted in the purchase of Rafale Fighter Jets;”

THE IMPUGNED JUDGMENT

6. The three Writ Petitions, as also Writ Petition in which no Review is filed, came to be dismissed. This Court has referred to the reliefs which have been sought in the four Writ Petitions. This Court referred to the parameters of judicial review. The extent of permissible judicial review of contracts, procurement, etc., was found to vary with the subject matter of the contract. It was further observed that the scrutiny of the challenges before the Court, will have to be made keeping in mind the confines of national security, the subject of procurement being
crucial to the nation’s sovereignty.

7. The findings of this Court in paragraph 15 throws light on the controversy as was understood by the Court. Paragraph
15 reads as follows:

“15. It is in the backdrop of the above facts and the somewhat constricted power of judicial review that, we have held, would be available in the present matter that we now proceed to scrutinise the controversy raised in the writ petitions which raise three broad areas of concern, namely, (i) the decision-making process; (ii) difference in pricing; and (iii) the choice of IOP.”

(Emphasis supplied)

8. Thereafter, this Court had proceeded to consider the decision-making process, pricing and offsets and did not find in favour of the petitioners. It is after the discussion, as aforesaid, it is to be noted that this Court finally concluded as follows:

“33. Once again, it is neither appropriate nor within the experience of this Court to step into this arena of what is technically feasible or not. The point remains that DPP 2013 envisages that the vendor/OEM will choose its own IOPs. In this process, the role of the Government is not envisaged and, thus, mere press interviews or suggestions cannot form the basis for judicial review by this Court, especially when there is categorical denial of the statements made in the Press, by both the sides. We do not find any substantial material on record to show that this is a case of commercial favouritism to any party by the Indian Government, as the option to choose IOP does not rest with the Indian Government.

Conclusion

34. In view of our findings on all the three aspects, and having heard the matter in detail, we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. We, thus, dismiss all the writ petitions, leaving it to the parties to bear their own costs. We, however, make it clear that our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.

(Emphasis supplied)

9. Upon consideration of the Review Petitions and Applications, by Order dated 26.02.2019, prayer for hearing in the open court was allowed. We have heard learned counsel. We heard parties in Review Petition (Criminal) No. 46 of 2019, the learned Attorney General and learned Solicitor General.

10. As far as petitioners in Review Petition (Criminal) No. 46 of 2019 is concerned, the complaint appears to be that this Court has totally overlooked the relief sought in Writ Petition (Criminal) No. 298 of 2018.

11. The first respondent is the Central Bureau of Investigation (CBI) and the second respondent is the Union of India in Writ Petition (Criminal) No. 298 of 2018. The substance of the Writ Petition is that after following the due process under the Defence Procurement Procedure (DPP), to procure Advanced Fighter Aircrafts, and as per the authority under the DPP, the IAF Service Headquarters, after a widely consultative process with multiple Institutions, prepared Services Qualitative Requirements (SQR), specifying the number of aircrafts required as 126. There was the recommendation of the Committee that Make in India by Hindustan Aeronautics Limited (HAL), a Public Sector Enterprise, under a Transfer Technology Agreement, should be the mode of procurement. The Defence Acquisition Council granted the mandatory Acceptance of Necessity (AON). A Request for Proposal (RFP) was, accordingly, issued. There were six vendors. In 2011, it

11

was announced that Dassault’s Rafale and Eurofighter GmbH Typhoon met the IAF requirements. In March of 2014, a Work Share Agreement was entered into between Dassault Aviation and HAL. Accordingly, HAL would do 70 per cent of the work on 108 planes. On 25.03.2015, it is alleged that Dassault was in the final stages of negotiations with India for 126 aircrafts and HAL was to be the partner of Dassault.

12. It was the further case of the petitioners that a new deal was, however, inexplicably negotiated and announced by the Prime Minister without following the due procedure. Number of aircrafts were reduced to 36. This involved complete violation of all laid down Defence Procurement Procedure. There are various allegations made against the deal to purchase 36 planes in place of 126. In particular, there is reference to Mr. Anil Ambani not owning any company engaged in manufacture of products and services mentioned in the list of products and services eligible for discharge of offset obligations. A company was incorporated as Reliance Defence Limited on 28.03.2015, just twelve days

12

before the new deal was suddenly announced on 10.04.2015. There is also the case that DPP was bypassed for collateral considerations. In the complaint lodged with CBI, there is reference to the Prevention of Corruption Act, 1988, as it stood prior to amendment. Their request is to register an FIR under the provisions which are mentioned therein which fall under the Prevention of Corruption Act, 1988 and to investigate the matter. Other reliefs are already referred to.

13. The petitioners in the said case, premise their case on the judgment of this Court in Lalita Kumari v. Government of Uttar Pradesh and others1. It is their case that though reference was made to the relief at the beginning of the judgment, thereafter, this Court focused only on the merits of the matter in terms of the powers available to it under judicial review. Reliefs sought in other Writ Petitions were focused upon. The only prayers of the petitioners in Writ Petition (Criminal) No. 298 of 2018, as noticed, was

1 (2014) 2 SCC 1

13

a direction to follow the command of Lalita Kumari (supra) and to register an FIR as they have filed a complaint which is produced along with Writ Petition and as no action was taken as mandated by the Constitution Bench of this Court, they have approached this Court. The error is apparent in not even considering the impact of the Constitution Bench and requires to be redressed through the Review Petition. The petitioners also, undoubtedly, point out that there was suppression of facts by the respondents. This Court was sought to be misled. There is also a case that the petitioners have obtained documents which suggest that there were parallel negotiations being undertaken by the Prime Minister’s Office (PMO) which was strenuously objected to by the Indian Negotiating Team (INT). The statement in the judgment that the pricing details have been shared with the Comptroller and Auditor General of India (CAG) and the Report of the CAG has been examined by the Public Accounts Committee (PAC) and that only a redacted portion of the Report was placed before the Parliament, are pointed out to be patently false. It is primarily in regard

14

to the same that an Application is filed purporting to be under Section 340 of the Cr.PC. There is an Application for Correction and there is complaint of wholesale suppression of facts. Errors are also referred to.

14. The stand of the Government of India is that the Review Petitions are meritless. This Court has elaborately considered the matter and found that there was nothing wrong. It is the case of the Government that the impugned judgement addresses contentions of the petitioners on compelling principles with regard to the scope of the judicial inquiry in cases involving the security and defence of the nation and it lays down the correct law. It is pointed out that there is no grave error apparent on the face of record. Reliance is placed on judgment of this Court in Mukesh v. State (NCT of Delhi)2. A fishing inquiry is impermissible. There was additional benefit to the country as a result of the deal which is sought to be questioned.

Reliance is placed on the findings of the CAG. It is

2 (2018) 8 SCC 149

15

contended that the CAG has conclusively held that the basis of the benchmark by the INT was unrealistic.

15. The CAG has held that 36 Rafale aircrafts deal was 2.86 per cent lower than the audit aligned price. Regarding the offset guidelines being amended initially to benefit an industrial group, it is stoutly denied. The waiver of sovereignty/bank guarantee in Government to Government agreements is pointed out to be not unusual. Support is sought to be drawn from the Report of the CAG, inter alia, finding that the French Government was made equally responsible to fulfil its obligations. The production and delivery schedule are monitored by high-level Committee with representatives of both Governments of France and India.

16. As far as mandate of Lalita Kumari (supra), not being followed, it is stated that disclosing prima facie that a cognizable offence is committed is mandatory, which is lacking in the present case especially once this Court has concluded that on decision-making process, pricing and

16

Indian Offset Partners, there was no reason to intervene.

Once this Court has held that perception of individuals

cannot be the basis for a fishing and roving inquiry, no

cognizable offence is made out prima facie so as to order

registration of an FIR. There is no concealment of facts

or false presentation of facts.

CONTOURS OF REVIEW JURISDICTOIN

17. Article 137 of the Constitution confers jurisdiction on the Supreme Court of India to exercise power of review. It reads as follows:

“137. Review of judgments or orders by the Supreme Court Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.”

18. Rules have been made known as The Supreme Court Rules, 2013. Order XLVII of the said Rules, deals with review (In The Supreme Court Rules, 1966, it was contained in Order XL) and it reads as follows:

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“ORDER XLVII

REVIEW

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 XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.

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.

3. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed.

4. Where on an application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court, may, if it thinks fit in the interests of justice to do so,

18

direct the refund to the petitioner of the court-fee paid on the application in whole or in part, as it may think fit.

5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same matter.”

19. Thus, a perusal of the same would show that the jurisdiction of this Court, to entertain a review petition in a civil matter, is patterned on the power of the Court under Order XLVII Rule 1 of The Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’, for short).

20. Order XLVII Rule 1 of the CPC, reads as follows:

“ORDER XLVII : REVIEW

1. Application for review of judgement

(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

19

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgement notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation.- The fact that the decision on a question of law on which the judgement of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgement.”

21. It will be noticed that in criminal matters, review lies on an error apparent on the face of record being established. However, it is necessary to notice what a

20

Constitution Bench of this Court laid down in P.N. Eswara

Iyer And Others v. Registrar, Supreme Court of India3:

“34. The rule [Ed.:Order 40, Rule 1 of the Supreme Court Rules] , 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 Article 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

3 (1980) 4 SCC 680

21

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.

35. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 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, CPC. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source.”

(Emphasis supplied)

22. In Suthendraraja Alias Suthenthira Raja Alias Santhan

and others v. State Through DSP/CBI, SIT, Chennai 4 ,

4 (1999) 9 SCC 323

22

referring to the judgement in P.N. Eswara Iyer (supra), it

was, inter alia, held that the scope of review was widened

considerably by the pronouncement.

23. In Haridas Das v. Usha Rani Banik (Smt.) and others5, the question arose out of an appeal in the High Court, wherein the High Court accepted the prayer for review. This Court held as follows:

“13. … The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason”. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent

5 (2006) 4 SCC 78

23

decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. …”

(Emphasis supplied)

24. Jain Studios Ltd. Through Its President v. Shin Satellite Public Co. Ltd.6 involved an order passed by Judge in Chambers. It was sought to review the order passed which is reported in Shin Satellite Public Co. Ltd. v. Jain Studios Ltd.7. In the Arbitration Petition which was the main matter, there was a prayer to appoint an Arbitrator by the review petitioner. The same was heard and rejected. The learned Judge, in the said circumstances, held as follows:

“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had

6(2006) 5 SCC 501
7(2006) 2 SCC 628

24

been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.”

(Emphasis supplied)

25. In State of West Bengal and others v. Kamal Sengupta and another8, this Court, inter alia, held as follows:

“21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not

8 (2008) 8 SCC 612

25

within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.”

(Emphasis supplied)

26. In Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others9, the question, which fell for consideration was, whether misconception of the court about a concession by counsel, furnished a ground for review. A court may pronounce a judgement on the basis that a concession had been made by the counsel when none had been made. The court may also misapprehend the terms of the concession or the scope of a concession. When such misconception underscores a judgment, whether review would lie? Answering the said question, this Court proceeded to hold as follows:

“36. … Patanjali Sastri, J. (as he then was) sitting singly in the Madras High Court definitely took the view in Rekhanti Chinna

Govinda Chettiyar v. S. Varadappa Chettiar [AIR 1940 Mad. 17] that a misconception by the court of a concession

9 AIR 1954 SC 526

26

made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney-General contends that this affidavit and the letters accompanying it cannot be said to be part of “the record” within the meaning of Order 47 Rule 1. We see no reason to construe the word “record” in the very restricted sense as was done by Denning, L.J., in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw [(1952) 2 KB 338 at pp. 351-52] which, was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error complained of is that the court assumed that a concession had been made when none had in fact been made or that the court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only be done by way of review. The cases to which reference has been made indicate that the misconception of the court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment.”

(Emphasis supplied)

27

27. It is pertinent to notice that this Court did not confine the word “record” in the narrow sense in which it

was interpreted as in the case of an application of Writ

of Certiorari. This Court also sanctioned support being

drawn from an affidavit by the counsel in this regard, as

additional ground for review. Misconception by a court, was

found embraced within the scope of the expression

“sufficient reasons”.

28. Non-advertence to the particular provision of the Statute, which was pertinent and relevant to the lis, was held to be a ground to seek review. In Girdhari Lal Gupta v. D.N. Mehta and another10, this Court held as follows:

“16. The learned counsel for the respondent State urges that this is not a case fit for review because it is only a case of mistaken judgment. But we are unable to agree with this submission because at the time of the arguments our attention was not drawn specifically to sub-section 23-C(2) and the

10 AIR 1971 SC 2162

28

light it throws on the interpretation of sub-section (1).”

(Emphasis supplied)

29. Also, see in this regard, judgment in Deo Narain Singh v. Daddan Singh and others11 where finding that this Court had decided the case on the basis of a Statute, which was inapplicable in the facts, review was granted.

30. In Sow Chandra Kante and another v. Sheikh Habib12, the judgment involved a request to review the decision of this Court refusing special leave to appeal in a matter, this Court held as follows:

“… A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. …”

(Emphasis supplied)

11 1986 (Supp) SCC 530

12(1975) 1 SCC 674

29

  1. Two documents, which were part of the record, were

considered by the Judicial Commissioner to allow review by

the High Court. This Court, in appeal, in the judgement in

Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and

others13, found as follows:

“4. In the present case both the grounds on which the review was allowed were hardly grounds for review. That the two documents which were part of the record were not considered by the Court at the time of issue of a writ under Article 226 cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceedings under Article 226. Again that several instead of one writ petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in allowing the review. The order of the Judicial Commissioner dated December 7, 1967 is accordingly set aside and the order dated May 25, 1965, is restored. The appeal is allowed but without costs.”

(Emphasis supplied)

13 (1979) 4 SCC 389

30

32. M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi14 was a case which fell to be considered under Article 137 of the Constitution of India. The relevant discussion is found in paragraphs 8 and 9. They read as follows:

“8. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845 : (1965) 1 SCR 933, 948 : (1965) 1 SCJ 377] . For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279 : (1971) 3 SCR 748, 750]. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full

and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi [(1971) 3 SCC 5 : (1971) 2 SCR 11, 27] . Power to review

14(1980) 2 SCC 167

31

its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the

Court will not be reconsidered except “where

a glaring omission or patent mistake or like grave error has crept in earlier by judicial
fallibility”: Sow Chandra Kante v. Sheikh

Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200

: (1975) 3 SCR 933].

9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If

32

the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.”

33. Question in the said case arose under the Bengal Finance (Sales Tax) Act, 1941. The case was based on new material sought to be adduced by the Revenue to establish that the transaction amounted to a sale.

34. The foundations, which underlie the review jurisdiction, has been examined by this Court at some length in the judgment in S. Nagaraj and others v. State of Karnataka and another15:

“18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and

15 1993 Supp (4) SCC 595

33

fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State’s failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue.

19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility.

34

Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai [AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar 175] that an order made by the Court was final and could not be altered:

“… nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in …. The

House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must

35

possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.”

Basis for exercise of the power was stated in the same decision as under:

“It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.”

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such

provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions

36

subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”

(Emphasis supplied)

35. The decision in S. Nagaraj(supra), has been followed in various judgements of this Court (See Lily Thomas and others v. Union of India and others 16 ; Haryana State Industrial Development Corporation Limited. v. Mawasi and

16 (2000) 6 SCC 224

37

others17; Kamlesh Verma v. Mayawati and others18; Usha Bharti

v. State of Uttar Pradesh and others19 and Vikram Singh

Alias Vicky Walia and another v. State of Punjab and

another20).

36. In Kamlesh Verma (supra), this Court in paragraph 20, laid down its conclusions, which reads as follows:

“Summary of the principles

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

17 (2012) 7 SCC 200

18 (2013) 8 SCC 320

19 (2014) 7 SCC 663

20 (2017) 8 SCC 518.

38

The words “any other sufficient reason” have

been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this

Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose

Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337: JT (2013) 8 SC 275]

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

39

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

37. In a very recent judgment, in fact, relied upon by the Union of India, viz., Mukesh (supra), in a review petition in a criminal appeal, this Court reiterated that a review is not rehearing of an original matter. Even establishing another possible view would not suffice [See Vikram Singh (supra), which was relied upon].

38. The anxiety of this Court that the consideration of rendering justice remain uppermost in the mind of the Court, has led to the Constitution Bench judgement in Rupa Ashok

40

Hurra v. Ashok Hurra and another21. It is in the said case that the concept of a curative petition was devised to empower a litigant to seek a reconsideration of a matter wherein the review petition also is unsuccessful. Certain steps have been laid down in this regard which stand incorporated in The Supreme Court Rules, 2013 [in Part IV Order XLVIII thereof].

39. Undoubtedly, any error to be an error on the face of the record, cannot be one which has to be established by a long drawn out process of reasoning on points where there may conceivably be two opinions or if the error requires lengthy and complicated arguments to establish it, a Writ of Certiorari would not lie (See Satyanarayan Laxminarayan Hegde and others v. Mallikarjun Bhavanappa Tirumale22 ). This principle is equally applicable to a review petition also.

21 (2002) 4 SCC 388

22 AIR 1960 SC 137

41

40. On a conspectus of the above decisions, the following conclusions appeared to be inevitable and they also provide the premise for review:

Justice above all. While a review petition has not been understood as an appeal in disguise and a mere erroneous decision may not justify a review, a decision which betrays an error which is apparent, does entitle the court to exercise its jurisdiction under Article 137 of the Constitution. The founding fathers were conscious that this Court was the final Court. There are two values, which in any system of law, may collide. On the one hand, recognizing that men are not infallible and the courts are manned by men, who are prone to err, there must be a safety valve to check the possibility of grave injustice being reached to a litigant, consequent upon an error, which is palpable or as a result of relevant material despite due diligence by a litigant not being made available or other sufficient reason. The other value which is

42

ever-present in the mind of the law giver, is, there must be finality to litigation. Be it judgments of a final court, if it becomes vulnerable to indiscriminate reopening, unless a strong ground exists, which itself is based on manifest error disclosed by the judgment or the other two grounds mentioned in Order XLVII of the CPC in a civil matter, it would spawn considerable inequity.

41. It must be noticed that the principle well-settled in regard to jurisdiction in review, is that a review is not an appeal in disguise. The applicant, in a review, is, on most occasions, told off the gates, by pointing out that his remedy lay in pursuing an appeal. In the case of a decision rendered by this Court, it is to be noticed that the underpinning based on availability of an appeal, is not available as this Court is the final Court and no appeal lies.

43

42. It is no doubt true that the Supreme Court Rules, 2013, certain powers are conferred on the Registrar as also on the Judge holding Court in Chambers and appeals, indeed, are provided in respect of certain orders passed by the Registrar.

43. The fact that no appeal lies from the judgment of this Court may not, however, result in the jurisdiction of this Court under Article 137 of the Constitution being enlarged. However, when the Court is invited to exercise its power of review, this aspect may also be borne in mind, viz., that unlike the other courts from which an appeal may be provided either under the Constitution or other laws, or by special leave under Article 136 of the Constitution, no appeal lies from the judgment of this Court, and it is in that sense, the final Court. The underlying assumption for the principle that a review is not an appeal in disguise, being that the decision is appealable, is really not available in regard to a decision rendered by this Court, is all that is being pointed out.

44

44. A review petition is maintainable if the impugned judgment discloses an error apparent on the face of the record. Unlike a proceeding in Certiorari jurisdiction, wherein the error must not only be apparent on the face of the record, it must be an error of law, which must be apparent on the face of the record, for granting review under Article 137 of the Constitution read with Order XLVII Rule 1 of the CPC, the error can be an error of fact or of law. No doubt, it must be apparent on the face of record. Such an error has been described as a palpable error or glaring omission. As to what constitutes an error apparent on the face of record, is a matter to be found in context of the facts of each case. It is worthwhile to refer to the following discussion in this regard by this Court in Hari Vishnu Kamath v. Ahmad Ishaque and Others23, wherein, this Court held as follows:

“23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is

23 AIR 1955 SC 233

45

essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.

Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in Batuk K. Vyas v. Surat Municipality [AIR 1953 Bom 133] that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.”

(Emphasis supplied)

46

45. The view of this Court, in the decision in Girdhari Lal Gupta (supra) as also in Deo Narain Singh (supra), has been noticed to be that if the relevant law is ignored or an inapplicable law forms the foundation for the judgement, it would provide a ground for review. If a court is oblivious to the relevant statutory provisions, the judgment would, in fact, be per incuriam. No doubt, the concept of per incuriam is apposite in the context of its value as the precedent but as between the parties, certainly it would be open to urge that a judgment rendered, in ignorance of the applicable law, must be reviewed. The judgment, in such a case, becomes open to review as it would betray a clear error in the decision.

46. As regards fresh material forming basis for review, it must be of such nature that it is relevant and it undermines the verdict. This is apart from the requirement that it could not be produced despite due diligence.

47. The dismissal of a special leave petition takes place at two levels. In the first place, the Court may dismiss

47

or reject a special leave petition at the admission stage. Ordinarily, no reasons accompany such a decision. In matters where a special leave petition is dismissed after notice is issued, also reasons may not be given ordinarily. Several elements enter into the consideration of this Court where a special leave petition is dismissed. The task for a review applicant becomes formidable as reasons are not given. An error apparent on the face of the record becomes difficult to establish. In a writ petition where pleadings are exchanged and reasons are given in support of the verdict, a self-evident error is detected without much argument. No doubt, a Court, in review, does not reappreciate and correct a mere erroneous decision. That reappreciation is tabooed, is not the same as holding that a Court will not appreciate the case as reflected in the pleadings and the law by which the Court is governed.

48. In this case, the short point, which this Court is called upon to consider, is the effect of the impugned judgment not dealing with a binding decision rendered by

48

a Constitution Bench which was relied upon by the

petitioners in Writ Petition (Criminal) No. 298 of 2018 and

rendered in Lalita Kumari (supra). It is apposite that I

set out what this Court, speaking through the aforesaid

Constitution Bench judgment, has laid down in paragraph

120:

“Conclusion/Directions

120. In view of the aforesaid discussion, we hold:

120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure

49

must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

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120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”
(Emphasis supplied)

49. It is their contention, therefore, that the writ petition came to be clubbed along with other writ petitions. This Court proceeded to undertake judicial review of the processes which led to the decision to purchase 36 planes going back on the earlier decision which was to purchase 136 planes.

50. According to the petitioners, therefore, this Court committed a clear error in not focusing on the relief sought in their writ petition which was based on the Constitution
51

Bench of this Court which was binding on a Bench of lesser strength (three). All this Court is being asked to do, according to the petitioners, having regard to the law binding on it, is to direct the registration of the FIR. There is also relief sought to submit reports in the same.

51. The procedure, which is to be adopted by the authorities, has been elaborated upon. There can be no escape from the mandatory procedure laid down by this Court.

52. Where a party institutes a proceeding, if the proceeding is of a civil nature, there would be a cause of action. There would be reliefs sought on the basis of the cause of action. Materials are produced both in support and against the claim. The Court thereafter renders a judgement either accepting the case or rejecting the case. When the Court rejects the case, it necessarily involves refusing to grant the relief sought for by the plaintiff/petitioner. It may transpire that the petitioner may not press for certain reliefs. The Court may, after applying its mind to the case, find that the petitioner is not entitled to the

52

relief and decline the prayers sought. It may also happen that the court does refer to the reliefs sought but thereafter does not undertake any discussion regarding the case for the relief sought and proceeds to non-suit the party. It is clear that in this case, it is the last aspect which is revealed by the judgment sought to be reviewed.

53. A judgment may be silent in regard to a relief which is sought by a party. It is apposite, in this regard, to notice Section 11 of the CPC. If a decree is silent, as regards any relief which is claimed by the plaintiff, Explanation V to Section 11 declares that the relief must be treated as declined. The Explanation reads as follows:

“Section 11, Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.”

54. No doubt, if the relief is expressly refused, then also, the matter would become res judicata. It is, therefore, of vital importance that when a case is decided,

53

the Court considers the claim and the relief sought, applies the Statute which is applicable and the law which is laid down particularly when it is by a Constitution Bench in deciding the case. Just as, in the case of a judgement, where the applicable Statute, not being applied, would result in a judgment which becomes amenable to be corrected in review, there can be no reason why when a binding judgment of this Court, which is enlisted by the party, is ignored, it should have a different consequence. In fact, since a review under Article 137 of the Constitution, in a civil matter, is to be exercised, based on what is contained in Order XLVII Rule 1 of the CPC, the Explanation therein, may shed some light. The Explanation which was inserted by the Act of 1976, following the recommendations of the Law Commission of India, in its 54th Report, declares that the law is laid down by a superior court reversing an earlier decision, on a question of law, will not be a ground for the review of a judgment.

54

55. The Law Commission, in fact, in the said Report reasoned that adopting the view taken by the Kerala High Court in the decision in Thadikulangara Pylee’s son Pathrose v. Ayyazhiveettil Lakshmi Amma’s son Kuttan and

others24 that a later judgment would amount to discovery of new and important matter, and in any case an error on the face of the record, would keep alive the possibility of review indefinitely. This impliedly would mean that when a court decides a case, it must follow judgments which are binding on it. This is not to say that a smaller Bench of this Court, if it entertains serious doubts about the correctness of an earlier judgment, may not consider referring the matter to a larger Bench. However, as long as it does not undertake any such exercise, it cannot refuse to follow the judgment and that too of a Constitution Bench. Any such refusal to follow the decision binding on it, would undoubtedly disclose an error which would be palpable being self-evident.

24 AIR 1969 KER 186

55

56. In this case, when this Court rendered the judgment, sought to be reviewed, the judgment of the Constitution Bench in Lalita Kumari (supra), undoubtedly, held the field having been rendered on 12.11.2013. The said judgement was, indeed, pressed before the Court.

57. To put it in other words, having regard to the relief sought by the petitioners, the dismissal of the writ petition would be, according to petitioners, in the teeth of a binding judgment of this Court. Just as in the case of a binding Statute being ignored and giving rise to the right to file a review, neither on logic nor in law would the refusal to follow a binding judgement, qualify for a different treatment if a review is filed. Be it a civil or a criminal matter, an error apparent on the face of the record, furnishes a ground for review.

58. This is not a case where an old argument is being repeated in the sense that after it has been considered and rejected, it is re-echoed in review. It is an argument which was undoubtedly pressed in the original innings. It is not

56

the fault of the party if the court chose not even to touch upon it. No doubt, it may be different in a case where a ground or relief sought is ignored and it is found justified otherwise. But where a ground, which is based on principles laid down by a Constitution Bench of this Court, is not dealt with at all and it is complained of in review, it will rob the review jurisdiction of the very purpose it is intended to serve, if the complaint otherwise meritorious, is not heeded to.

59. A learned Single Judge, in an arbitration request, turned down a plea to appoint a person as Arbitrator. In review, the request was sought to be resurrected. It was in this context that a learned Single Judge of this Court, sitting in Chambers, in the decision reported in Jain Studios Ltd. (supra), laid down that once such a relief was refused in the main matter, no review petition would lie. However, following the said judgment, this Court, in the decision reported in Kamlesh Verma (supra), summarising the principle, came to declare in paragraph 20.2(ix), that

57

review is not maintainable when the same relief sought at the time of arguing the main matter, has been negatived.

60. With regard to the said principle, the context in which it was laid down in the decision by a learned Single Judge in Jain Studios Ltd. (supra), has already been noted. The said principle, as stated, cannot be treated as one that is cast in stone to apply irrespective of facts. Illustrations come to the fore where it is better related to the factual context and not as an immutable axiom not admitting of exceptions. Take a case where a Writ of Mandamus is sought for after a demand is made. The demand is placed on record and is not even controverted. In the main proceeding, Mandamus is refused on the ground that there is no demand. It amounts to denial of relief. But the verdict is clearly afflicted with palpable error, and if the complaint is made in a review about the denial of relief on a ground which is patently untenable, certainly, a review would lie. There can be many other examples where the denial of relief is palpably wrong and self-evident. It is

58

different, if on an appreciation of evidence or applying the law, and where two views are possible, relief is refused. In fact, broadly, denial of relief can occur in two situations. There are situations where the grant of relief itself is discretionary. There are other situations where if a certain set of facts are established, the plaintiff/appellant cannot be told off the gates. A defendant, who appeals against a time-barred suit being decreed, establishes that a suit is time-barred, and the facts, as stated in the judgment itself, unerringly point to such premise. If still, the Appellate Court decrees the suit and denies relief to the defendant/appellant, can it be said that a review will not lie? The answer can only be that a review will lie.

61. To test the hypothesis that on the facts this Court was wrong and manifestly so in declining in not following the

dicta of the Constitution Bench in Lalita Kumari (supra), a reverse process of reasoning can be employed to appreciate the matter further. Can it be said that refusing to follow

59

a Constitution Bench, laying down the response of the Officers to a complaint alleging the commission of a cognizable offence, has not been observed in its breach? If the review petition, in other words, is rejected, in substance this Court would be upholding its judgment which when placed side-by-side with the pronouncement of the Constitution Bench in Lalita Kumari (supra), the two judgments cannot be squared. It must co-exist despite the patent departure, the impugned judgment manifests from the law laid down by the Constitution Bench. But that being impossible, the Constitution Bench must prevail and the impugned judgment stand overwhelmed to the extent it is inconsistent. It may be true that in view of the fact that four writ petitions were heard together, this Court has proceeded to focus on the merits of the matters itself undoubtedly from the standpoint of the limited judicial review which it could undertake in a matter of the nature in question. On the basis of the said exercise, the Court has concluded that there were no materials for the Court to interfere. But this is a far cry from holding that it
60

will not follow the mandate of the Constitution Bench of this Court in regard to the steps to be undertaken by the Officer on receipt of a complaint purporting to make out the commission of a cognizable offence. This Court may declare that it was non-suiting the petitioners seeking judicial review, having regard to the absence of materials which would have justified holding the award of the contract in question vulnerable. It would not mean that it is either precluded or that it was not duty-bound to still direct that the law laid down by the Constitution Bench in Lalita Kumari (supra) be conformed to.

62. If the complaint of the petitioner does make out the commission of the cognizable offence and FIR is to be registered and matter investigated, it will be no answer to suggest that this Court, has approved of the matter in judicial review proceedings under Article 32 of the Constitution and making it clear that entire exercise must be viewed from the prism of the limited judicial review the Court undertakes in such proceedings and this Court would

61

end up paying less than lip service to the law laid down by the Constitution Bench in Lalita Kumari (supra).

63. As far as the judicial review of the award of the contract is concerned, apart from the fact that a review does not permit reappreciation of the materials, there is the aspect of the petitioner seeking judicial review approaching the court late in the day. There is also the

aspect relating to the court’s jurisdiction not extending to permit it to sit in judgment over the wisdom of the Government of the day, particularly in matters relating to purchase of the goods involved in this case. Therefore, in regard to review, sought in relation to the findings relating to the judicial review, they cannot be found to be suffering from palpable errors.

64. Though, the stand of the Government of India has been noticed, which is the second respondent in Writ Petition (Criminal) No. 298 of 2018, the party, which has a say in the matter or rather a duty in the matter in terms of the law laid down by this Court in Lalita Kumari (supra), is the first respondent, viz., Central Bureau of Investigation (CBI) before which petitioners have moved the Exhibit P1-complaint. It is quite clear that the first respondent, the premiere investigating agency in the country, is expected to act completely independent of the Government of the day. The Government of India cannot speak on behalf of the first respondent. Whatever that be, the fact remains that a decision in terms of what is laid down in Lalita Kumari (supra), is to be taken.

65. One objection, which has apparently weighed with my learned and noble Brother, is that, this Court, having dealt with the merits of the case, there could be no occasion for directing the compliance in terms of Lalita Kumari (supra) by the first respondent. Reasoning of the Court has been noticed. This Court has approached the matter proclaiming that it was doing so in the context of somewhat constricted power of judicial review. It is further made clear that the Court found that it is neither appropriate nor is it within the experience of this Court to step into the arena of what is technically feasible. This Court also did not find any substantial material on record to show it to be a case of commercial favouritism to any party by the Indian Government as the option to choose the IOP did not rest with the Indian Government. In the concluding paragraph, it was clearly mentioned that the Court’s views were primarily from the standpoint of exercise of jurisdiction under Article 32 of the Constitution, which was invoked in this case.

66. The question would, therefore arise, whether in such circumstances, the relief sought in Writ Petition (Criminal) No. 298 of 2018, seeking compliance with Lalita Kumari (supra), was wrongly declined. Differently put, the question would arise whether the petitioners, having participated in the proceedings and inviting the Court to pronounce on the merits as well and cannot persuade the Court to take a different view on the merits, could still ask the Court to find an error and that too a grave error in not heeding to the prayer in Writ Petition (Criminal) No. 298 of 2018.

67. As noticed earlier, it is one thing to say that with the limited judicial review, available to the Court, it did not find merit in the case of the petitioners regarding failure to follow the DPP, presence of over-pricing, violation of Offset Guidelines to favour a party, and another thing to direct action on a complaint in terms of the law laid down by this Court. It is obvious that this Court was not satisfied with the material which was placed to justify a decision in favour of the petitioners. It is also apparent that the Court has reminded itself of the fact that it was neither appropriate nor within the experience of the Court to step into the arena. It is equally indisputable that the entire findings are to be viewed from the standpoint of the nature of the jurisdiction it exercised. There are no such restrictions and limitations on an Officer investigating a case under the law. Present a case, making out the commission of cognizable offence, starting with the lodging of the FIR after, no doubt, making a preliminary inquiry where it is necessary, the fullest of amplitude of powers under the law, no doubt, are available to the Officer. The discovery of facts by Officer carrying out an investigation, is completely different from findings of facts given in judicial review by a Court. The entire proceedings are completely different.

68. In the impugned judgment, under the heading “Offsets”,

there is, at paragraph 28, reference to the complaint that favouring the Indian Business Group, has resulted in an offence being committed under the Prevention of Corruption Act. This Court extracted Clause (4.3) of the Offset Clause which provides that OEM/Vendor, Tier-1 Sub-Vendor will be free to select the Indian Offset Partner for implementing the offset obligation provided it has not been barred from doing business with the Ministry of Defence. This Court dealt with the same contentions in paragraph 32 of the impugned judgment, which reads as follows:

“32. It is no doubt true that the company, Reliance Aerostructure Ltd., has come into being in the recent past, but the press release suggests that there was possibly an arrangement between the parent Reliance Company and Dassault starting from the year 2012. As to what transpired between the two corporates would be a matter best left to them, being matters of their commercial interests, as perceived by them. There has been a categorical denial, from every side, of the interview given by the former French President seeking to suggest that it is the Indian Government which had given no option to the French Government in the matter. On the basis of materials available before us, this appears contrary to the clause in DPP 2013 dealing with IOPs which has been extracted above. Thus, the commercial arrangement, in our view, itself does not assign any role to the Indian Government, at this stage, with respect to the engagement of IOP. Such matter is seemingly left to the commercial decision of Dassault. That is the reason why it has been stated that the role of the Indian Government would start only when the vendor/OEM submits a formal proposal, in the prescribed manner, indicating details of IOPs and products for offset discharge. As far as the role of HAL, insofar as the procurement of 36 aircrafts is concerned, there is no specific role envisaged. In fact, the suggestion of the Government seems to be that there were some contractual problems and Dassault was circumspect about HAL carrying out the contractual obligation, which is also stated to be responsible for the non-conclusion of the earlier contract.”

69. The very first statement in paragraph 32 would appear to point to the Court taking into account Press Release suggesting that there was possibly an arrangement between the parent Reliance Company and Dassault starting from the year 2012. It is stated as to what transpired between the two Corporates would be best left to them. In this regard, in the Review Petition, it is pointed out that this Court has grossly erred in confusing Reliance Industries of which Mr. Mukesh Ambani is the Chairman with that of Reliance Infrastructure of which Mr. Anil Ambani is the Chairman.

It is further contended that Mr. Anil Ambani’s Reliance Infrastructure is the parent company of Reliance Aerostructure Limited (RAL), which is the beneficiary of the Offset Contract, and there is no possibility of any arrangement between Reliance Infrastructure Limited with Dassault Aviation in 2012. There appears to be considerable merit in the case of the petitioners that in this regard, this Court had fallen into clear error that there was possibly an arrangement between the parent Reliance Company and Dassault dated back to the year 2012. The parent Reliance Company which was referred in the judgment is Reliance Industries which is a completely different corporate body from Reliance Infrastructure which appears, according to the petitioners, to be the parent company of RAL. Thereafter, there is reference to the denial of the interview by the Former French President. It is further noted that on the basis of the materials, the commercial arrangement does not assign any role to the Indian Government at this stage with reference to the arrangement of the IOP. After making certain observations about HAL and role of the Indian Government starting only when the Vendor/OEM submitted a formal proposal, this Court went on to make the observation contained in paragraph 33 which has already been extracted.

70. From the standpoint of the jurisdiction in judicial review proceedings and under Article 32 of the Constitution, as also absence of any substantial material to show to be a case of commercial favouritism, it may be true that the findings other than which has been referred to may not disclose a palpable error. This Court’s lack of

experience of what is technically feasible, as noted by the

Court, has weighed with it.

POWERS OF POLICE OFFICER WIDER AND DIFFERENT FROM THAT OF WRIT COURT

71. The ‘statutory right of the police to investigate about a cognizable offence’ is well settled. In King-Emperor v. Nazir Ahmad Khwaja25, the Privy Council has, inter alia, held as follows:

“In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an


25 AIR 1945 PC 18


appropriate case when moved under S. 491 of the C.P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Courts functions begin when a charge is preferred before it and not until then. …”

72. Following the same, this Court in M.C. Abraham and another v. State of Maharashtra and others 26 , held as follows:

“13. This Court held in the case of J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272] that there is a clear-cut and well-demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved by the executive through the police department, the superintendence over which vests in the State Government. It is the bounden duty of the executive to investigate, if an offence is alleged, and bring the offender to book. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. …”

73. The Police Officer is endowed with wide powers. Nothing that constricted or limited this Court in the impugned


26 (2003) 2 SCC 649


judgment, applies to an Officer who has undertaken an investigation into the commission of a cognizable offence. In fact, in this case, the first respondent-CBI is the premiere investigation agency of the country. It is equipped to undertake all forms of investigations, be it technical or otherwise. The factors which concerned this Court can be recapitulated to bring out the true role of an Investigator. This Court held, it is neither appropriate nor within the Court’s experience to step into what is technical feasible or not. No such limitation applies to an Investigator of a cognizable offence. What is important is that it is the duty of the Investigating Officer to collect all material, be it technical or otherwise, and thereafter, submit an appropriate report to the court concerned, be it a final report or challan depending upon the materials unearthed. This Court relied on absence of substantial material. This is not a restriction on the Investigating Officer. Far from it, the very purpose of conducting an investigation on a complaint of a cognizable offence being committed, is to find material. There can be no dispute that the first respondent is the premiere investigating agency in the country which assumedly employs state of the art techniques of investigation. Professionalism of the highest quality, which embraces within it, uncompromising independence and neutrality, is expected of it. Again, the restriction which underlies the impugned judgment is the limited scope of judicial review and also the writ jurisdiction under Article 32 of the Constitution. It is clear as a mountain stream that both these considerations are totally irrelevant for an Officer who has before him a complaint making out the commission of a cognizable offence.

74. However, the directions contained in paragraph 120 of the Constitution Bench decision in Lalita Kumari (supra) must be further appreciated. In this case, the petitioners in Writ Petition (Criminal) No. 298 of 2018, have indeed moved an elaborate written complaint before the first respondent-CBI. The complaint that is made, attempts to make out the commission of a cognizable offences under the Prevention of Corruption Act. Paragraph 120.1 of Lalita Kumari (supra), declares registration of FIR is mandatory if information discloses commission of a cognizable offence. The Constitution Bench debarred any preliminary inquiry in such a situation. It is apposite that paragraph 120.5 is noticed at this stage. This Court held that the scope of the preliminary inquiry is not to verify the veracity or otherwise of the information received but it is only to ascertain whether the information reveals any cognizable offence. Coming back to paragraph 120.2, it is laid down by this Court that if the information does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. It is beyond dispute that the offences which are mentioned in the complaint filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018 are cognizable offences. Again, coming back to paragraph 120.3 in Lalita Kumari (supra) read with paragraphs 120.2 and 120.5, if the inquiry discloses commission of a cognizable offence, the FIR must be registered. Where, however, the preliminary inquiry ends in closing the complaint, the first informant must be informed in writing forthwith and not later than a week. That apart, reasons, in brief, must also be disclosed.

75. Paragraph 120.6 deals with the type of cases in which preliminary inquiry may be made. Corruption cases are one of the categories of cases where a preliminary inquiry may be conducted. Also, cases where there is abnormal delay or laches in initiating criminal prosecution, for example over three months delay in reporting the matter without satisfactorily explaining the reasons for the delay. As can be noticed from paragraph 120.6, medical negligence cases, matrimonial disputes, commercial offences are also cases in which a preliminary inquiry may be made. In order to appreciate the scope of paragraph 120.6, it is necessary to advert to paragraphs 115 to 119, which read as follows:

“Exceptions

115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.

116. In the context of medical negligence cases, in Jacob Mathew [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1: 2005 SCC (Cri) 1369], it was held by this Court as under: (SCC p. 35, paras 51-52)

“51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such

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malicious proceedings have to be guarded against.

52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118] test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is

necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

117. In the context of offences relating to corruption, this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] expressed the need for a preliminary inquiry before proceeding against public servants.

118. Similarly, in Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , this Court has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognizable offence.

119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.”

(Emphasis supplied)

76. As can be noticed that medical negligence cases constitute an exception to the general rule which provides for mandatory registration of FIR in respect of all cognizable offences. The Court, in clear terms, held that it will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. It relied on a decision of this Court in Jacob Mathew v. State of Punjab and another27.

77. In paragraph 117 of Lalita Kumar (Supra), this Court referred to the decision in P. Sirajuddin, Etc. v. State of Madras, Etc.28 and took the view that in the context of offences related to corruption in the said decision, the Court has expressed a need for a preliminary inquiry before proceeding against public servants.

78. In P. Sirajuddin (supra), relied upon by the Constitution Bench in Lalita Kumari (supra), what this Court has held, and which has apparently been relied upon by the Constitution Bench though not expressly referred to is the following statement contained in paragraph 17:


27 (2005) 6 SCC 1

28 (1970) 1 SCC 595


“17. … Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. …”

(Emphasis supplied)

79. In Lalita Kumari (supra), one of the contentions which was pressed before the Court was that in certain situations, preliminary inquiry is necessary. In this regard, attention of the Court was drawn to CBI Crime Manual. The following paragraphs of the Lalita Kumari (supra) may be noticed, which read as follows:

“89. Besides, the learned Senior Counsel relied on the special procedures prescribed under the CBI Manual to be read into Section 154. It is true that the concept
of “preliminary inquiry” is contained in

Chapter IX of the Crime Manual of CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that CBI is constituted under a special Act, namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.

90. It may be submitted that Sections 4(2) and 5 of the Code permit special procedures to be followed for special Acts. Section 4 of the Code lays down as under:

“4.Trial of offences under the Indian Penal Code and other laws.—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

It is thus clear that for the offences under the laws other than IPC, different provisions can be laid down under a special Act to regulate the investigation, inquiry, trial, etc. of those offences. Section 4(2) of the Code protects such special provisions.

91. Moreover, Section 5 of the Code lays down as under:

“5.Saving.—Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

Thus, special provisions contained in the DSPE Act relating to the powers of CBI are protected also by Section 5 of the Code.

92. In view of the above specific provisions in the Code, the powers of CBI under the DSPE Act, cannot be equated with the powers of the regular State Police under the
Code.”

80. It is thereafter that under the caption “Exceptions”,

the Constitution Bench has proceeded to deal with offences relating to corruption as already noted and contained in paragraph 117 of Lalita Kumari (supra), which has already been extracted. Chapter 8 of the CBI Crime Manual deals with complaints and source of information. Chapter 9 deals with preliminary enquiries. Clause (8.6) of Chapter 8 provides for the categories of complaints which are to be considered fit for verification. It provides, inter alia, complaints pertaining to subject matters which fall within the purview of the CBI, either received from official channels or from well-established and recognized organizations or from individuals who are known and who can be traced and examined. Undoubtedly, petitioners are known and can be traced and examined. A complaint against a Minister or a Former Minister of the Union Government is to be put up before the Director of the CBI. The complaints which are registered for verification, with the approval of the competent authority, would only be subjected to secret verification. Clause (9.1) of Chapter 9 contemplates that when a complaint is received, inter alia, after verification and which may after verification indicates serious misconduct on the part of the public servant but is not adequate to justify registration of a regular case, under the provisions of Section 154 of the Cr.PC, a preliminary inquiry may be registered after obtaining approval of the competent authority. Clause (9.1) also, no doubt, deals with cases entrusted by this Court and the High Courts. The Manual further contemplates that the preliminary inquiry will result either in registration of regular cases or departmental action inter alia.

81. The Constitution Bench in Lalita Kumari(supra), had before it, the CBI Crime Manual. It also considered the decision of this Court in P. Sirajuddin (supra) which declared the necessity for preliminary inquiry in offences relating to corruption. Therefore, the petitioners may not be justified in approaching this Court seeking the relief of registration of an FIR and investigation on the same as such. This is for the reason that one of the exceptions where immediate registration of FIR may not be resorted to, would be a case pointing fingers at a public figure and raising the allegation of corruption. This Court also has permitted preliminary inquiry when there is delay, laches in initiating criminal prosecution, for example, over three months. A preliminary inquiry, it is to be noticed in paragraph 120.7, is to be completed within seven days.

82. The petitioners have not sought the relief of a preliminary inquiry being conducted. Even assuming that a smaller relief than one sought could be granted, there is yet another seemingly insuperable obstacle.

83. In the year 2018, the Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as ‘2018 Act’ for short) was brought into force on 26.07.2018. Thereunder, Section 17A, a new Section was inserted, which reads as follows:

“17A. (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval— (a ) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government; (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.‟‟.

(Emphasis supplied)

84. In terms of Section 17A, no Police Officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent-CBI, is done after Section 17A was inserted. The complaint is dated 04.10.2018. Paragraph 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paragraphs 6 and 7 of the complaint are relevant in the context of Section 17A, which reads as follows:

“6. We are also aware that recently, Section 17(A) of the act has been brought in by way of an amendment to introduce the

88

requirement of prior permission of the government for investigation or inquiry under the Prevention of Corruption Act.

7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the government under Section 17(A) of the Prevention of Corruption Act for investigating this offence and under which,

“the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month”.”

85. Therefore, petitioners have filed the complaint fully knowing that Section 17A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24.10.2018 and the complaint is based on non-registration of the FIR. There is no challenge to Section 17A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17A continues to be on the Statute Book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17A but when it comes to the relief sought in the Writ Petition, there was no relief claimed in this behalf.

86. Even proceeding on the basis that on petitioners

complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari (supra), and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Exhibit P1-complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act.

87. Subject as hereinbefore stated, in regard to the other Petitions and Applications, I agree with the proposed Order of Brother Justice Sanjay Kishan Kaul.

J.(K.M. JOSEPH)

New Delhi,
November 14, 2019.


M/s. Thungabhadra Industries Ltd Versus The Government of Andhra Pradesh – 22/10/1963

SUPREME COURT OF INDIA JUDGMENTS

A substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

AIR 1964 SC 1372 : (1964) 5 SCR 174


(SUPREME COURT OF INDIA)

M/s. Thungabhadra Industries Ltd Versus The Government of Andhra Pradesh

(Before : A. K. Sarkar, K. C. Das Gupta And N. Rajagopala Ayyangar, JJ.)

Civil Appeals Nos. 781 to 783 of 1962,

Decided on : 22-10-1963.

Civil Procedure Code, 1908—Order 47, Rule 1—Review—Error apparent—Meaning of—Review is not an appeal in disguise—An erroneous decision cannot be said to be suffering from an error apparent on the face of it.

Civil Procedure Code, 1908—Order 47, Rule 1(1)—Review—Pendency of appeal—Permissibility—Appeal filed subsequent to filing of review petition—The review is maintainable unless the appeal is disposed of prior to the disposal of review petition.

Counsel for the Parties:

Mr. A. V. Viswanatha Sastri, Senior Advocate, (M/s. M. S. K. Sastri and M. S. Narasimhan Advocates, with him), for Appellant (In all the Appeals)

Mr. A. Ranganadham Chetty, Senior Advocate, (Mr. R. N. Sachthey, Advocate, with him), for Respondent (In all the Appeals).

Judgment

Ayyangar, J—The points raised in these three appeals which come before us by virtue of special leave under Art. 136 of the Constitution are somewhat out of the ordinary and raise for consideration whether the common order passed by the High Court of Andhra Pradesh rejecting application to review an earlier order by that court, is correct on the facts which we shall state presently.

2. The appellant – M/s. Thungabhadra Industries Ltd. are manufacturers of groundnut oil, part of which they convert for sale into hydrogenated oil while the rest is sold as ordinary oil. Under the Madras General Sales Tax Act, hereinafter referred to as the Act, which has application to the State of Andhra Pradesh, while in regard to groundnuts the tax is levied at the point of purchase groundnut oil is taxed at the point of sale. The result of this feature naturally is that when a person purchases groundnut and converts the same into oil and sells the oil extracted he has to pay tax at both the points. Rules have been framed in order to alleviate what might be considered a hardship by reason of this double levy. Rule 5(k) of the Turnover and Assessment Rules provides:

“5. (k) in the case of a registered manufacturer of groundnut oil and cake, the amount which he is entitled to deduct from his gross turnover under Rule 18 subject to the conditions specified in that rule”.

and Rule 18 referred to reads:

“18(1) Any dealer who manufactures groundnut oil and cake from groundnut and/or kernel purchased by him may, on application to the assessing authority having jurisdiction over the area in which he carries on his business, be registered as a manufacturer of groundnut oil and cake. 2. Every such registered manufacturer of groundnut oil will be entitled to a deduction under clause (k) of sub-rule (1) of Rule 5 equal to the value of the groundnut and/or kernel, purchased by him and converted into oil and cake if he has paid the tax to the State on such purchases:

Provided that the amount for which the oil is sold is included in his net turnover:

Provided further that the amount of the turnover in respect of which deduction is allowed shall not exceed the amount of the turnover attributable to the groundnut and/or kernel used in the manufacture of oil and included in the net turnover.”

The appellant is admittedly a manufacturer who is registered for the purposes of that rule.

3. In respect of the year 1949-50 the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under the rule in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase. This claim was negatived by the Sales Tax authorities on the ground that “hydrogenated groundnut oil” was not “groundnut oil” within R. 18(2). Having failed before the departmental authorities in getting its claim to deduction allowed, the appellant approached the High Court with a Tax Revision Case numbered 120 of 1953 on its file but the High Court, by its judgment dated February 11, 1955, upheld the view of the department. An application was thereafter made to the High Court to grant a certificate of fitness under Art. 133(1) on the ground that substantial question of law as to the interpretation of the General Sales Tax Act and the Rules made thereunder, as well as of certain other enactments which were relied upon in support of their claim by the appellants, arose for decision in the case. The learned Judges by their order dated February 21, 1956 granted the certificate. In view of the points arising in this appeal we consider it would be convenient to set out the text of this order:

“This petition raises a question of general importance namely whether hydrogenated groundnut oil popularly known as Vanaspathi is groundnut oil so as to enable the assessee to claim exemption under Rules 18(2) and 5(1)(g) of the Turnover and Assessment Rules framed by the Government in exercise of the powers conferred by S. 3 and sub-rules (4) and (5) of the Madras General Sales Tax Act, 1939. The answer to the question arising in this matter turns upon whether the chief characteristics of the groundnut oil remain the same in spite of the chemical processes it undergoes. It also involves the interpretation of the notifications issued by the Government of India under the Essential Supplies (Temporary Powers) Act and certain provisions of the Vegetable Oil Products Control Order. In these circumstances we think it a fit case for appeal to the Supreme Court. Leave is therefore granted.”

Thereafter the appeal was entertained in this Court and numbered as Civil Appeal 498 of 1958, was finally disposed of on October 18, 1960 and is now reported as M/s. Tungabhadra Industries Ltd. v. Commercial Tax Officer, Kurnool, (1961) 2 SCR 14.

4. Meanwhile in regard to the assessment of the three succeeding years – 1950-51, 1951-52 and 1952-53, the same question as to whether “hydrogenated groundnut oil” was “groundnut oil” entitled to the deduction of the purchase turnover under R. 18(2) of the Turnover and Assessment Rules was raised and was decided against the appellant by the Sales Tax Officer. This order was taken up in appeal to the Deputy Commissioner of Commercial Taxes by the appellant and as apparently the identical question was pending in the High Court in regard to the year 1949-50, the appellant authority awaited the decision of the High Court and when T. R. C. 120 of 1953, was decided against the appellant on February 11, 1955, disposed of the appeal against the appellant by its order dated April 5, 1955. Thereafter the appellant approached the Sales Tax Appellate Tribunal but this was obviously a formality because the Tribunal were bound by the judgment of the High Court and the appeals were dismissed by order dated October 20, 1955. Again the orders of the Sales Tax Appellate Tribunal the appellant preferred three Tax Revision Cases – T. R. C. 75, 76 and 77 of 1956 in regard to the three assessment years. The learned Judges of the High Court dismissed the three Revision Cases on October 7, 1958 following their earlier decision in T. R. C. 120 of 1953 in regard to the assessment for the year 1949-50. At this date, it would be noticed, the correctness of the decision of the High Court in T. R. C. 120 of 1953 was pending adjudication in this Court by virtue of the Certificate of fitness granted by the High Court under Art. 133(1). Desiring to file an appeal to this Court against the judgment of the High Court in these three Tax Revision Cases as well, the appellant filed, on February 16, 1959, three miscellaneous petitions under Art. 133(1) of the Constitution praying for a certificate of fitness that the case involved substantial questions of law as to the interpretation of the Sales Tax Act and the Rules made thereunder etc. The learned Judges, however, by their order dated September 4, 1959 dismissed the petition stating:

“The judgment sought to be appealed against is one of affirmance. We do not think that it involves any substantial question of law as to the interpretation of the Constitution; nor do we regard this as a fit case for appeal to the Supreme Court.”

5. The question that arises for consideration in these appeals is primarily whether this order dated September 4, 1959 is vitiated by error apparent on the face of the record. How that matter becomes relevant is because the appellant filed three applications for review of this order under O. XLVII R. 1 of the Civil Procedure Code specifying this as the ground for relief. These applications for review were filed on November 23, 1959 and apparently notice was issued to the respondent State Government and the petition for review came on for hearing on January 6, 1961. On that date the learned Judges dismissed the said applications and assigned the following as the reasons for their order:

“The only ground argued in support of these review petitions is that leave to appeal to the Supreme Court was granted in similar circumstances in regard to previous year and there was no reason why leave should have been refused in these cases. We do not think that that would furnish a sufficient ground for reviewing the order dismissing the petitions for leave to file an appeal to the Supreme Court. That apart, the Supreme Court was moved under Article 136 of the Constitution for special leave and that was dismissed may be on the ground that it was not filed in time. In the circumstances, we think that our order dated 4-9-1959 dismissing S. C. C. M. Ps. Nos. 4823, 4825 and 4827 of 1959 cannot be reviewed.”

The appellants thereupon made applications for special leave from this Court to challenge the correctness of this last order and the leave having been granted after notice to the respondent, the appeals are now before us.

6. Before dealing with the arguments addressed to us on behalf of the appellant it is necessary to advert to an objection raised by learned Counsel for the respondent urging that the special leave granted to the appellant should be revoked. We declined to permit the respondent to urge any such argument in this case primarily for two reasons. In the first place, the special leave was granted after notice to the respondent and therefore after hearing the respondent as to any objection to the maintainability of the appeal or to the grating of special leave. In the circumstances, any ground in relation to these matters should have been urged at that stage and except possibly in some extraordinary cases where the ground urged happens to arise subsequent to the grant of the special leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of the due care; except in such circumstances this Court will not permit the respondent to urge any argument regarding the correctness of the order of the Court granting special leave. Indeed, the very object of issuing notice to the respondent before the grant of leave is to ensure that the latter is afforded an opportunity to bring to the notice of the Court any grounds upon which leave should be refused and the purpose of the rule would be frustrated if the respondent were permitted to urge at a later stage – at the stage of the hearing of the appeal and long after the appellant has incurred all the costs – that the leave granted after notice to him should be revoked on a ground which was available to him when the application for special leave was heard. This apart, even the statement of the case filed on behalf of the respondent does not disclose any ground upon which the leave granted should be revoked; nor, of course, does it make any prayer seeking such relief. One of the objects which the statement of the case is designed to achieve is manifestly that no party shall be taken by surprise at the hearing and this is ensured by the provision in O. XIX R. 4 of the Supreme Court Rules reading:

“No party shall, without the leave of the Court, rely at the hearing on any grounds not specified in the Statement of the Case filed by him.”

Nor, of course, was there any contention that the ground that he proposed to submit came into existence after the filing of the statement of case. It was in these circumstances that we declined to permit the respondent to develop an argument to persuade us to hold that the leave granted by this Court should be revoked, though we might add that the matter mentioned by learned Counsel for the respondent in this respect would not, even if urged at the hearing of the special leave petition have materially assisted him in resisting the grant of special leave. The point he desired to urge was that in the petition for special leave the appellant had averred that the decision of this Court reversing the judgment of the High Court in T. R. C. 120 of 1953 had been brought to the notice of the High Court, but that this statement must be erroneous or untrue for two reasons:(1) This is not referred to in the order now under appeal, and (2) the decision of this Court was not reported in any of the law reports – Official or unofficial – till long after January 1961 when the petition for review was heard. It is manifest that neither of the two circumstances would by itself prove the untruth of the averment in the special leave petition. The learned Judges might well have thought that the decision had no material bearing on the only point that arose for consideration before them, viz., whether their order of September 1959 was or was not vitiated by error of the sort which brought it within O. XLVII R. 1 of Civil Procedure Code. It is obvious that so viewed, it would not have any relevance. As regards the other point, the appellant did not have need to wait for a report of the case in the Law Reports but might very well have produced a copy of the judgment of this Court – and being a party to the proceeding here it is improbable that it had not a copy, so that its statement that it drew the attention of the Court to the decision is not proved to be false by the decision not being reported till long after January, 1961. The oral application for revoking the leave granted is therefore rejected as entirely devoid of substance.

7. We shall next proceed to deal with the merits of the appeals. Before doing so, however, it is necessary to advert to a circumstance which the learned Judges considered a proper reason for rejecting the petition for review. This arises out of the second of the grounds assigned by the learned Judges in their order dated January 6, 1961 refusing to grant the review. This may be quoted in their own words:

“That apart, the Supreme Court was moved under Art. 136 of the Constitution for special leave and that was dismissed may be on the ground that it was not filed in time.”

The facts in relation to this matter might now be stated. As already seen, the applications for reviewing the order dated September 4, 1959 refusing the certificate were filed on November 23, 1959. During the pendency of those review applications the appellant filed, on November 30, 1959, petitions seeking special leave of this Court under Art. 136 of the Constitution but those petitions were filed beyond the period of limitation prescribed by the Rules. An application was therefore filed along with the special leave petitions seeking condonation of delay in the filling of the petitions. The petitions and the application for condonation of delay came on together for hearing and this Court refused to condone the delay, so that the petitions for special leave never legally came on the file of this Court.

8. Order XLVII R. 1(1) of the Civil Procedure Code permits an application for review being filed “from a decree or order from which an appeal is allowed but from which no appeal has been preferred.” In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII R. 1(1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of O. XLVII R. 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end.

9. The next question is as regards the effect of the refusal of this court to condone the delay in filing the petition for special leave. Here again, it was not contended that the refusal of this Court to entertain the petition for special leave on the grounds just now stated was a bar to the jurisdiction or powers of the Court hearing the review petition. This position was not contested by the learned Advocate for the respondent either. In these circumstances, we are unable to agree with the learned Judges of the High Court that the refusal by this Court to condone the delay in filing the petition for special leave was a circumstances which could either bar the jurisdiction of the High Court to decide the petition for review or even could be a relevant matter to be taken into account in deciding it. If therefore their original order dated September 4, 1959 was vitiated by an error apparent on the face of the record, the failure of the special leave petition to be entertained in this Court in the circumstances in which it occurred, could not be any ground either of itself or taken along with others to reject the application for review.

10. We consider it would be convenient to consider the first part of the order of the High Court now under appeal after examining the principal question whether the order of September, 1959 rejecting the appellant’s petition for a certificate is vitiated by error apparent on the record. If one analysed that order only one reason was given for the rejection of the certificate of fitness. No doubt, in the first sentence of their order they stated that the judgment was one of affirmance but that was merely preliminary to what followed where they recorded that the certificate was refused for the reason that the case did not involve any substantial question of law regarding the interpretation of the Constitution. The preliminary statement that their judgment was one of affirmance would, however, seem to show that what the learned Judges had in mind were the terms of Art. 133 of the Constitution where alone – as distinct from Article 132 – there is reference to a judgment of affirmance, though per incuriam they reproduced the terms of Art. 132(1). As it was the case of no party that any question of interpretation of the Constitution was involved, the reference to “the substantial question of law relating to the interpretation, of the Constitution” must obviously have been a mistake for a substantial question of law arising in the appeal. Though learned Counsel for the appellant stressed this ground in the order of September 1959 as itself disclosing an error apparent on the face of the record or was at least, indicative that the learned Judges did not apply their minds to the consideration of the question arising in the application for a certificate of fitness we shall proceed on the basis that this was merely a clerical error in their order and that the learned Judges had really in mind the terms of Art. 133(1) which had been invoked by the appellants in their application for the certificate. On the basis that the words in the order of September 1959 referring to a substantial question of law as to the interpretation of the Constitution were really meant to say that no substantial question of law was involved in the appeal sought to be filed in this Court how does the matter stand ? There was practically no question of fact that fell to be decided in T. R. Cs. 75 to 77 of 1956 and the sole question related to the claim to deduct the value of the groundnut on which purchase tax had been paid and which had been converted into hydrogenated oil which had been sold and which had been included in the appellant’s turnover. In fact, these T. R. Cs. were decided by the High Court not independently on a consideration of any particular facts which arose in them, but by following the decision of the High Court in T. R. C. 120 of 1953 which had accepted the construction which the departmental authorities had placed on R. 18(2) of the Turnover and Assessment Rules. The substantial points of law which were claimed to arise in the appeal had been set out in extenso in the petition seeking the certificate and, in fact, they were practically a reproduction of the contents of the earlier petition seeking a certificate against the decision in T. R. C. 120 of 1953. The learned Judges – and the learned C. J. was a party to the earlier decision and to the grant of the certificate of fitness on that occasion – considered these points and had stated as their opinion that substantial questions of law of general importance were involved in the case and they had given expression to these views in a judgment which we have reproduced earlier.

11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an “error apparent on the face of the record”. The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. No questions of fact were involved in the decision of the High Court in T. R. Cs. 75 to 77 of 1956. The entire controversy turned on the proper interpretation of R. 18(1) of the Turnover and Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of February 1956; nor could it be doubted or disputed that these were substantial questions of law. In the circumstances therefore, the submission of the appellant that the order of September 1959 was vitiated by “error apparent” of the kind envisaged by O. XLVII, R. 1, Civil Procedure Code when it stated that “no substantial question of law arose” appears to us to be clearly well founded. Indeed, learned Counsel for the respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error.

12. He, however, submitted that this Court should have regard not to whether the earlier order was so vitiated or not but to grounds which were urged by the appellant at the hearing of the application for review and that if at that stage the point in the form in which we have just now expressed was not urged, this Court would not interfere with the order rejecting the application for review. He pointed out that at the stage of the arguments on the application for review the only ground which was urged before the Court, as shown by the judgment of the Court, was that the order of September 1959 was erroneous for the reason that a certificate had been granted on a previous occasion. We have extracted the text of this order of January 1961 in which this argument is noticed and it is stated that it was the only point urged before the Court. The question then arises as to what is meant by “in similar circumstances in regard to a previous year”. Learned Counsel for the respondent submits that we should understand these words to mean that the appellant relied on the order dated February 21, 1956 granting the certificate of fitness in regard to the decision of the High Court in T. R. C. 120 of 1953 solely as some sort of precedent and no more. On that basis learned Counsel strenuously contended that the mere fact that in regard to an earlier year a certificate was granted would not by itself render an order refusing a certificate in a later year erroneous on the ground of patent error. We have already dealt with this aspect of the matter. We do not, however, agree that this is the proper construction of the argument that they rejected. The order dated February 21, 1956 in relation to the previous year was placed before the court and was relied on not as a binding precedent to be followed but as setting out the particular substantial questions of law that arose for decision in the appeals, and the attention of the court was drawn to the terms of the previous order with a view to point out the failure to appreciate the existence of these questions and to make out that the statement in the order of September 1959 that no substantial question of law was involved in the appeals was erroneous on the face of it. This is made perfectly clear by the contents of the petition for review where the aspect we have just now set out is enunciated. The earlier order being of the same Court and of a Bench composed in part of the same Judges the earlier order was referred to as a convenient summary of the various points of law that arose for the purpose of bringing to the notice of the Court the error which it committed in stating that no substantial question of law arose in the appeals. If by the first sentence the learned Judges meant that the contention which they were called upon to consider was directed to claim the previous order of 1956 as a binding precedent, they failed to appreciate the substance of the appellant’s argument. If, however, they meant that the matters set out by them in their order granting a certificate in relation to their decision in T. R. C. 120 of 1953 were not also involved in their judgment in T. R. Cs. 75 to 77 they were in error, for it is the case of no one that the questions of law involved were not identical. If, besides they meant to say that these were not substantial questions of law within Art. 133(1), they were again guilty of error. The reasoning , therefore, of the learned Judges in the order now under appeal, is no ground for rejecting the applications to review their orders of September 1959. We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed. We only desire to add that in so holding we have not in any manner taken into account or been influenced by the view expressed by this Court in (1961) 2 SCR 14 regarding the construction of Rule 18(2) of the Turnover and Assessment Rules, since that decision is wholly irrelevant for considering the correctness of the order rejecting the applications for review which is the only question for decision in these appeals.

13. Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeals were allowed we should make no direction as regards costs against his client. The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T. R. Cs. 75, 76 and 77 really depended on the correct construction of R. 18(2) of the Turnover and Assessment Rules and in particular on the meaning of the expression “groundnut oil” occurring there – whether it included “hydrogenated oil”. This Court in its judgment in (1961) 2 SCR 14 pronounced on the proper construction of the word “groundnut oil” occurring in R. 18 of the Turnover and Assessment Rules as they then stood. The assessment proceeding for 1950-51, 1951-52 and 1952-53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court. In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice. That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought. Of course if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled to collect the tax as assessed and as decided in its favour by the High Court. But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of its right to costs.

14. In the result the appeal is allowed and the common judgment of the High Court in the three appeals is reversed and the petitions for review – C. M. Ps. 4672, 4673 and 4674 of 1959 on the file of the High Court are allowed with costs here and in the High Court – one set of hearing fees.

Review

In S. Nagaraj and others vs. State of Karnataka and another (1993) 4 Suppl. SCC 595 seems to be rather apposite. Supreme Court in paragraph 19 of the report, upon relying on the fundamental principles of jurisprudence that justice is above all, stated as below ;

“Review literally and even judicially means re-exemption or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage or justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury vs. Sukhraj Rai (AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45) the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae vs. Bijai Govind Singh (1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar 175) that an order made by the Court was final and could not be altered.


Criminal Court has no power of review judgment after passing it -SC

26. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 code of Criminal Procedure. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051)

Moreover, the prohibition contained in Section 362 code of Criminal Procedure. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 code of Criminal Procedure. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145).

27. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 code of Criminal Procedure. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan and Ors. v. Mahboob Ilahi, 1970 Cri.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra and Anr. 1985 Cri.L.J. 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto and Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal and Ors., (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. and Anr., AIR 2011 SC 1232).

28. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the code itself. (Vide: State Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran and Ors., AIR 2009 SC 46).

29. In Smt. Sooraj Devi v. Pyare Lal and Anr., AIR 1981 SC 736, this Court held that the prohibition in Section 362 code of Criminal Procedure. against the Court altering or reviewing its judgment, is subject to what is ‘otherwise provided by this code or by any other law for the time being in force’. Those words, however, refer to those provisions only where the Court has been expressly authorised by the code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 code of Criminal Procedure. and, therefore, the attempt to invoke that power can be of no avail.

30. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.

Source: State of Punjab Versus Davinder Pal Singh Bhullar and Others

Only National Commission(Consumer)has power to review its ex-prate orders.

  • On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex prate orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
  • 37. The legislature chose to give the National Commission power to review its ex prate orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.Continue Reading

Only High Court can alter or review its judgment before it is signed in criminal matter

There is no power of review with the criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Code of criminal Procedure. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051)

Moreover, the prohibition contained in Section 362 Code of criminal Procedure. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 Code of criminal Procedure. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145).

 If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Code of criminal Procedure. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan and Ors. v. Mahboob Ilahi, 1970 Cri.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra and Anr. 1985 Cri.L.J. 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto and Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal and Ors., (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. and Anr., AIR 2011 SC 1232).

In Smt. Sooraj Devi v. Pyare Lal and Anr., AIR 1981 SC 736, this Court held that the prohibition in Section 362 Code of criminal Procedure. against the Court altering or reviewing its judgment, is subject to what is ‘otherwise provided by this Code or by any other law for the time being in force’. Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 Code of criminal Procedure. and, therefore, the attempt to invoke that power can be of no avail.

Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.

Sivakami & Ors. Vs. State of Tamil Nadu & Ors.[ALL SC 2018 MARCH]

KEYWORDS:- DISTINCTION BETWEEN APPEAL AND REVIEW-

c

DATE:- March 12, 2018

The scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the Appellate Court

ACTS:-Land Acquisition Act, 1894

SUPREME COURT OF INDIA

Sivakami & Ors. Vs. State of Tamil Nadu & Ors.

[Civil Appeal Nos. 2749-2750/2018 arising out of S.L.P. (C) Nos.29397-29398 of 2013]

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are directed against the final judgment and order dated 13.03.2013 passed by the High Court of Judicature at Madras in Review Application No.77 of 2012 in W.A. No.868 of 2011 whereby the Division Bench of the High Court dismissed the review application filed by the appellants herein as not maintainable and also on merits and order dated 02.09.2008 in WA No.868 of 2 2001 whereby the Division Bench set aside the order dated 06.01.1997 passed by the Single Judge of the High Court which was in favour of the appellants herein.

3. These appeals involve a short point. Few facts need mention infra to appreciate the point involved in the appeals.

4. The appellants herein are the writ petitioners before the High Court in the writ proceedings out of which these appeals arise.

5. The appellants claim to be the owners of the land in question admeasuring around 1.52 acres in Survey No.142/1A situated at Ganapathi Village, Coimbatore Taluk.

6. The land in question was the subject matter of land acquisition proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) in the year 1985 at the instance of State of Tamil Nadu, which had issued notifications under Sections 4 and 6 of the Act for its acquisition. The appellants, felt aggrieved of the acquisition of their land in question, filed Writ Petition No.5220 of 1987 in the High Court at Madras and questioned therein the legality and correctness of the entire acquisition proceedings including the orders in G.O. Ms. No.1119, Social Welfare Department dated 15.05.1985 and G.O.Ms. No.1536, Social Welfare Department dated 18.06.1986.

7. The challenge to the acquisition proceedings was on several grounds as is clear from the grounds taken by the appellants (writ petitioners) in the writ petition and the SLP.

8. The writ petition was contested by the State wherein it defended the acquisition proceedings as being legal, proper and in conformity with the provisions of the Act.

9. The Single Judge, by order dated 06.01.1997, allowed the appellants’ writ petition and quashed G.O.Ms. No.1119 dated 15.05.1985 and G.O. Ms. No. 1536 dated 18.06.1986.

10. The State felt aggrieved and filed intra court appeal before the Division Bench out of which these appeals arise. By impugned order, the Division Bench allowed the State’s appeal and while setting aside the order of the Single Judge dismissed the appellants’ writ petition. In other words, the acquisition proceedings were upheld by the Division Bench as being legal and proper. Against the said order, review application was filed by the appellants herein but it was dismissed. It is against these two orders of the Division Bench, the writ petitioners felt aggrieved and filed these appeals by way of special leave in this Court.

11. Heard Mr. A Mariarputham, learned senior counsel for the appellants and Mr. Thomas P. Joseph, learned senior counsel, Mr. B. Balaji and Mr. K.V. Vijaya Kumar, learned counsel for the respondents.

12. Having heard the learned counsel for the parties and on perusal of the record of the case, we 5 are inclined to allow the appeals and while setting aside the impugned orders, remand the case to the Division Bench for deciding the writ petition filed by the appellants afresh on merits.

13. In our considered opinion, the reasons to remand the case to the Division Bench are more than one, which are set out hereinbelow.

14. First, the Division Bench in Paras 4 and 5 of its main order dated 02.09.2008 in W.A.No.868 of 2001 having rightly observed that the Single Judge neither discussed any issue nor gave his reasoning and nor even dealt with any of the grounds raised by the parties in support of their case and yet allowed the writ petition and quashed the acquisition proceedings erred in not dealing with any of the issues arising in the case, It is apposite to reproduce paras 4 and 5 hereinbelow:

“4. From the impugned order passed by the learned Single Judge, it would be evident that the learned Single Judge, without discussing the relevant facts of the case pertaining to the writ petitioners (respondents 1 to 4 in this writ appeal) and without analyzing the relevant proposition of law laid down by a Single Judge of this Court in the decision reported in 1994 Writ L.R. 764 (Seethalakshmi/Ramakrishnanda vs. Special Tahsildear (LA) II, Bharathiyar University, Coimbatore and another) and without considering the question as to whether the case of the writ petitioners, was similar to the one reported in 1994 Writ L.R. 764 (supra), merely allowed the writ petition based on the submission made by the learned counsel appearing for the respective parties.

5. In the facts and circumstances, as contended by the learned counsel appearing for the appellant-State, the impugned order passed by the learned Single Judge, can be held to be not a reasoned order, erroneous and not sustainable in the eye of law. We accordingly set aside the impugned order passed by the learned Single Judge.”

15. Second, in the light of afore-mentioned findings, the Division Bench should have either dealt with all the issues raised by the parties and given its own reasoning on all such issues while deciding the appeal or remanded the case to the writ Court (Single Judge) for deciding the appellants’ writ petition afresh on merits and to pass a reasoned order dealing with all the grounds raised by the parties in support of their respective contentions.

16. The Division Bench, however, simply allowed the State’s appeal and, in consequence, dismissed the writ petition and upheld the acquisition proceedings as being legal and proper and that too without assigning any reason in support thereof.

17. Third, it was  for the Division Bench to deal with all the grounds raised by the parties while reversing the order of writ Court and to record their own findings by assigning reasons in support of the conclusion. It was, however, not done.

18. In our considered opinion, this appears to be a case where the Single Judge (writ Court) allowed the appellants’ writ petition without assigning any reason and without dealing with any of the grounds raised by the parties except placing reliance on one decision for allowing the writ petition whereas the Division Bench allowed the State’s appeal without dealing with any of the issues raised by the parties in the writ petition and without assigning any reason as to why the writ petition deserved to be dismissed.

19. In our view, what the Division Bench was required to do while deciding the appeal, it was done by the Division Bench while deciding the review application. We find that the order in review application runs into 10 pages whereas the order in appeal runs into 6 pages. We cannot countenance such approach of the Division Bench while deciding the appeal and the review application.

20. The scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the Appellate Court

21. A fortiori, what was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application. It is for this reason, we are also constrained to set aside the review order.

22. In the light of foregoing discussion, we are of the view that the orders passed by the High Court, i.e., (writ Court and Division Bench) are bad in law and cannot be legally sustained for want of any reason, discussion and finding on any of the grounds/issues raised by the parties in support of their respective contentions.

23. Since the matter is pending for the last three decades, we consider it just and proper to remand the case (writ petition) to the Division Bench for its decision afresh on merits in accordance with law instead of remanding it to the Writ Court.

24. In view of the foregoing discussion, the appeals succeed and are accordingly allowed. The impugned orders are set aside and the writ petition is remanded to the Division Bench for its decision afresh on merits in accordance with law.

25. We, however, make it clear that having formed an opinion to remand the case to the Division Bench, we did not apply our mind to the merits of the controversy. We, therefore, request the High Court (Division Bench) to decide the writ petition in accordance with law preferably within six months uninfluenced by any of our observations.

J. [R.K. AGRAWAL]

J. [ABHAY MANOHAR SAPRE]

New Delhi;

March 12, 2018

Rupa Ashok Hurra Versus Ashok Hurra and another-10/04/2002

SUPREME COURT OF INDIA JUDGMENTS

Whether an aggrieved person is entitled to any relief against a final judgment/order of this Court, after dismissal of review petition, either under Article 32 of the Constitution or otherwise?

Date:-10-04-2002-

AIR 2002 SC 1771 : (2002) 2 SCR 1006 : (2002) 4 SCC 388 : JT 2002 (3) SC 609 : (2002) 3 SCALE 406

(SUPREME COURT OF INDIA)

RUPA Ashok Hurra Appellant
Versus
Ashok Hurra and another Respondent

WITH

M/s. Birla Textiles and another Appellant
Versus
Union of India and others Respondent

(Before : S. P. Bharucha, C.J.I., S. S. M. Quadri, U. C. Banerjee, S. N. Variava And Shivaraj V. Patil, JJ.)

Writ Petn. (C) Nos. 509 of 1997 with 245 of 1999; 338, 325-326, 663 and 680 of 2000; 374 of 2001 and 108 of 1999, Decided on : 10-04-2002.

Constitution of India, 1950—Articles 32, 124, 132, 133, 134, 139 and 140.

Judgment

Syed Shah Mohammed Quadri, J—These writ petitions have come up before us as a Bench of three learned Judges of this Court referred the first mentioned writ petition to a Constitution Bench observing thus : “Whether the judgment of this Court dated March 10, 1997 in Civil Appeal No. 1843 of 1997 can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be considered by a Constitution Bench of this Court.”

The other writ petitions were tagged to that case.

2. In these cases the following question of constitutional law of considerable significance arises for consideration : whether an aggrieved person is entitled to any relief against a final judgment/order of this Court, after dismissal of review petition, either under Article 32 of the Constitution or otherwise.

3. In our endeavour to answer the question, we may begin with noticing that the Supreme Court of India is established by Article 124 of the Constitution which specifies its jurisdiction and powers and enables Parliament to confer further jurisdiction and powers on it. The Constitution conferred on the Supreme Court original jurisdiction (Articles 32 and 131); appellate jurisdiction both civil and criminal (Articles 132, 133, 134); discretionary jurisdiction to grant special leave to appeal (Article 136) and very wide discretionary powers, in the exercise of its jurisdiction, to pass decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, which shall be enforceable throughout the territory of India in the manner prescribed (Article 142); powers like the power to withdraw any case pending in any High Court or High Courts to itself or to transfer any case from one High Court to another High Court (Article 139) and to review judgment pronounced or order made by it (Article 137). Conferment of further jurisdiction and powers is left to be provided by Parliament by law (Article 138). Parliament is also enabled to confer further powers on the Supreme Court (Articles 134(2), 139, 140). Article 141 says that the law declared by the Supreme Court shall be binding on all Courts within the territory of India and Article 144 directs that all authorities civil and judicial, in the territory of India, shall act in aid of the Supreme Court. It is a Court of record and has all the powers of such a Court including power to punish for contempt of itself (Article 129).

4. Since the jurisdiction of this Court under Article 32 of the Constitution is invoked in these writ petitions, we shall advert to the provisions of Article 32 of the Constitution. It is included in Part III of the Constitution and is quoted hereunder :

“32. Remedies for enforcement of rights conferred by this Part.-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

5. A perusal of the Article, quoted above, shows it contains four clauses. Clause (1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III – fundamental rights. By clause (2) the Supreme Court is vested with the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by Part III. Without prejudice to the powers of the Supreme Court in the aforementioned clauses (1) and (2), the Parliament is enabled, by clause (3), to empower by law any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). The constitutional mandate embodied in clause (4) is that Article 32 shall not be suspended except as otherwise provided for by the Constitution.

6. Inasmuch as the Supreme Court enforces the fundamental rights by issuing appropriate directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, it may be useful to refer to, in brief, the characteristics of the writs in general and writ of certiorari in particular with which we are concerned here. In English law there are two types of writs- i) judicial procedural writs like writ of summons, writ of motion etc. which are issued as a matter of course; these writs are not in vogue in India and (ii) substantive writs often spoken of as high prerogative writs like writ of quo warranto, habeas corpus,mandamus, certiorari and prohibition etc.; they are frequently resorted to in Indian High Courts and the Supreme Court. “Historically, prohibition was a writ whereby the royal Courts of common law prohibited other Courts from entertaining matters falling within the exclusive jurisdiction of the common law Courts; certiorari was issued to bring the record of an inferior Court into the King’s Bench for review or to remove indictments for trial in that Court; mandamus was directed to inferior Courts and Tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs.” [1] In England while issuing these writs, at least in theory, the assumption was that the King was present in the King’s Court. The position regarding the House of Lords is described thus, “of the Court of Parliament, or of the King in Parliament as it is sometimes expressed, the only other supreme tribunal in this country”. In Rajunder Narain Rai vs. Bijai Govind Singh, (1836 (1) Moo PC 117). They are discretionary writs but the principles for issuing such writs are well defined. In the pre-constitutional era the jurisdiction to issue the prerogative writs was enjoyed only by three chartered High Courts [2] in India but with the coming into force of the Constitution, all the High Courts and the Supreme Court are conferred powers to issue those writs under Article 226 and Article 32, respectively, of the Constitution. In regard to the writ jurisdiction, the High Courts in India are placed virtually in the same position as the Courts of King’s Bench in England. It is a well-settled principle that the technicalities associated with the prerogative writs in English Law have no role to play under our constitutional scheme. It is, however, important to note that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior Court to an inferior Court which certifies its records for examination. “Certiorari lies to bring decisions of an inferior Court, tribunal, public authority or any other body of persons before the High Court for review so that the Court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior Court or tribunal or public authority which forbids that Court or Tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior Courts, tribunals and public authorities”.[3]

7. Having carefully examined the historical background and the very nature of writ jurisdiction, which is a supervisory jurisdiction over inferior Courts/Tribunals, in our view, on principle a writ of certiorari cannot be issued to co-ordinate Courts and a fortiorari to superior Courts. Thus, it follows that a High Court cannot issue a writ to another High Court; nor can one Bench of a High Court issue a writ to a different Bench of the same High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior Courts in our constitutional scheme. Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court. Further, neither a smaller Bench nor a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. It is pointed above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior Court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior Courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.

8. In Naresh Shridhar Mirajkar and Ors. vs. State of Maharashtra and Anr. (1966) 3 SCR 744 , some journalists filed a Writ Petition in the Supreme Court under Article 32 of the Constitution challenging an oral order passed by the High Court of Bombay, on the Original Side, prohibiting publication of the statement of a writness given in open Court, as being violative of Article 19(1)(a) of the Constitution of India. A Bench of nine learned Judges of this Court considered the question whether the impugned order violated fundamental rights of the petitioners under Article 19(1)(a) and if so whether a writ under Article 32 of the Constitution would issue to the High Court. The Bench was unanimous on the point that an order passed by this Court was not amenable to the writ jurisdiction of this Court under Article 32 of the Constitution. Eight of the learned Judges took the view that a judicial order cannot be said to contravene fundamental rights of the petitioners. Sarkar, J. was of the view that the Constitution does not contemplate the High Courts to be inferior Courts so their decisions would not be liable to be quashed by a writ of certiorari issued by the Supreme Court and held that this Court had no power to issue a writ of certiorari to the High Court. To the same effect are the views expressed by Shah and Bachawat, JJ. Though, in his dissenting judgment Hidayatullah, J. (as he then was) held that a judicial order of the High Court, if erroneous, could be corrected in an appeal under Article 136 of the Constitution, he, nonetheless, opined that the impugned order of the High Court committed breach of the fundamental right of freedom of speech and expression of the petitioners and could be quashed under Article 32 of the Constitution by issuing a writ of certiorari to the High Court as subordination of the High Court under the scheme of the Constitution was not only evident but also logical. In regard to the apprehended consequences of his proposition, the learned Judges observed :

“It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge or Bench in the same Court. This is an erroneous assumption. To begin with the High Courts cannot issue a writ to the Supreme Court because the writ goes down and not up. Similarly, a High Court cannot issue a writ to another High Court. The writ does not go to a Court placed on an equal footing in the matter of jurisdiction. Where the county Court exercised the powers of the High Court, the writ was held to be wrongly issued to it (See : In re, the New Par Consols, LImited[1898(1) QB 669]).” (Emphasis supplied)

9. In A. R. Antulay vs. R. S. Nayak and Anr. (1988) 2 SCC 602, the question debated before a seven-Judge Bench of this Court was whether the order dated February 16, 1984, passed by a Constitution Bench of this Court, withdrawing the cases pending against the appellant in the Court of Special Judge and transferring them to the High Court of Bombay with a request to the Chief Justice to assign them to a sitting Judge of the High Court for holding trial from day to day. [R. S. Nayak vs. A. R. Antulay, (1984) 2 SCC 183 at 243], was a valid order. It is relevant to notice that in that case the said order was not brought under challenge in a petition under Article 32 of the Constitution. Indeed the appellant’s attempt to challenge the aforementioned order of the Constitution Bench before this Court under Article 32 of the Constitution, turned out to be abortive on the view that the writ petition under Article 32, challenging the validity of the order and judgment passed by the Supreme Court as nullity or otherwise incorrect, could not be entertained and that he might approach the Court with appropriate review petition or any other application which he might be entitled to file in law. While so, in the course of the trial of those cases the appellant raised an objection in regard to the jurisdiction of the learned Judge of the High Court to try the cases against him. The learned Judge rejected the objection and framed charges against the appellant, which were challenged by him by filing a Special Leave Petition to appeal before this Court wherein the question of jurisdiction of the High Court to try the cases was also raised. It was numbered as Criminal Appeal No. 468 of 1986 and was ultimately referred to a seven-Judge Bench. By majority of 5 : 2 the appeal was allowed and all proceedings in the cases against the appellant before the High Court pursuant to the said order of the Constitution Bench dated February 16, 1984, were set aside and quashed. Mukharji, Oza and Natarajan, JJ. took the view that the earlier order of this Court dated February 16, 1984 which deprived the appellant of his constitutional rights, was contrary to the provisions of the Act of 1952 and was in violation of the principles of natural justice and in the background of the said Act was without any precedent and that the legal wrong should be corrected ex debito justitiae [4] Ranganath Misra, J., with whom Ray, J. agreed, while concurring with the majority, observed that it was a duty of the Court to rectify the mistake by exercising inherent powers. Ranganathan, J. expressed his agreement with the view of the majority that the order was bad being in violation of Arts. 14 and 21 of the Constitution. However, he held that the said order was not one such order as to be recalled because it could not be said to be based on a view which was manifestly incorrect, palpably absurd or patently without jurisdiction. In that he agreed with Venkatachaliah, J. (as he then was) who gave a dissenting opinion. The learned Judge held that it would be wholly erroneous to characterise the directions issued by a five-Judge Bench as a nullity liable to be ignored and so declared in a collateral attack. However, five learned Judges were unanimous that the Court should act ex debito justitiae. On the question of power of the Supreme Court to review its earlier order under its inherent powers Mukharji, Oza and Natarajan, JJ. expressed the view that the Court could do so even in a petition under Art. 136 or Art. 32 of the Constitution. Ranganath Misra, J. gave a dissenting opinion holding that the appeal could not be treated as a review petition. Venkatacaliah, J. (as he then was) also gave a dissenting opinion that inherent powers of the Court do not confer or constitute a source of jurisdiction and they are to be exercised in aid of a jurisdiction that is already invested for correcting the decision under Art. 137 read with O. XL, Rule 1 of the Supreme Court Rules and for that purpose the case must go before the same Judges as far as practicable.

10. On the question whether a writ of certiorari under Art.32 of the Constitution could be issued to correct an earlier order of this Court Mukharji and Natarajan, JJ. concluded that the powers of review could be exercised under either Art. 136 or Art. 32 if there had been deprivation of fundamental rights. Ranganath Misra, J. (as he then was) opined that no writ of certiorari was permissible as the Benches of the Supreme Court are not subordinate to the larger Benches of this Court. To the same effect is the view expressed by Oza, Ray, Venkatachaliah and Ranganathan, JJ. Thus, in that case by majority of 5:2 it was held that an order of the Supreme Court was not amenable to correction by issuance of a writ of certiorari under Art. 32 of the Constitution.

11. In Smt. Triveniben vs. State of Gujarat (1989) 1 SCC 678, speaking for himself and other three learned Judge of the Constitution Bench, Oza, J., reiterating the same principle, observed :

It is well settled now that a judgment of Court can never be challenged under Art.14 or 21 and, therefore, the judgment of the Court awarding the sentence of death is not open to challenge as violating Art. 14 or Art. 21 as has been laid down by this Court in Naresh Shridhar Mirajkar vs. State of Maharashtra and also in A. R. Antulay vs. R. S. Nayak, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be no challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Art. 32 to go behind or to examine the final verdict reached by a competent Court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper.”

Jagannatha Shetty, J. expressed no opinion on this aspect.

12. We consider it inappropriate to burden this judgment with discussion of the decisions in other cases taking the same view. Suffice it to mention that various Benches of this Court reiterated the same principle in the following cases (A. R. Antulay vs. R. S. Nayak and another (1988) 2 SCC 602; Krishna Swami vs. Union of India and others (1992) 4 SCC 605; Mohd. Aslam vs. Union of India (1996) 2 SCC 749; Khoday Distilleries Ltd. and another vs. Registrar General, Supreme Court of India (1996) 3 SCC 114; Gurbachan Singh and another vs. Union of India and another (1996) 3 SCC 117; Babu Singh Bains and others vs. Union of India and others (1996) 6 SCC 565 and P. Ashokan vs. Union of India and another (1998) 3 SCC 56.

13. It is, however, true that in Supreme Court Bar Association vs. Union of India and another (1998) 4 SCC 409, a Constitution Bench and in M. S. Ahlwat vs. State of Haryana and another (2000) 1 SCC 278 a three-Judge Bench, and in other cases different Benches quashed the earlier judgments/orders of this Court in an application filed under Art. 32 of the Constitution. But in those cases no one joined issue with regard to the maintainability of the writ petition under Art. 32 of the Constitution. Therefore, those cases cannot be read as authority for the proposition that a writ of certiorari under Art. 32 would lie to challenge an earlier final judgment of this Court.

14. On the analysis of the ratio laid down in the aforementioned cases, we reaffirm our considered view that a final judgment/order passed by this Court cannot be assailed in an application under Art. 32 of the Constitution of India by an aggrieved person whether he was a party to the case or not.

15. In fairness to the learned counsel for the parties, we record that all of them at the close of the hearing of these cases conceded that the jurisdiction of this Court under Art. 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this Court after exhausting the remedy of review under Art.137 of the Constitution read with O. XL, R. 1 of the Supreme Court Rules, 1966.

16. However, all the learned counsel for the parties as also the learned Attorney-General who appeared as amicus curiae, on the notice of this Court, adopted an unusual unanimous approach to plead that even after exhausting the remedy of review under Art.137 of the Constitution, an aggrieved person might be provided with an opportunity under inherent powers of this Court to seek relief in cases of gross abuse of the process of the Court or gross miscarriage of justice because against the order of this Court the affected party cannot have recourse to any other forum.

17. Mr. Shanti Bhushan, the learned senior counsel appearing for the petitioner, submitted that the principle of finality of the order of this Court had to be given a go-by and the case re-examined where the orders were passed without jurisdiction or in violation of the principles of natural justice, violation of any fundamental rights or where there has been gross injustice. He invited our attention to O. XLVII, R. 6 of the Supreme Court Rules, 1966 and submitted that this Court had inherent jurisdiction and that cases falling in the aforementioned categories should be examined under the inherent jurisdiction of this Court. According to the learned counsel Art. 129 would not be available to correct a judgment of this Court but he pleaded that as from the order of the Apex Court no appeal would lie, therefore, an application, by whatever name called, which should be certified by a Senior Counsel in regard to existence of permissible ground, has to be entertained on any of the aforementioned grounds to correct a judgment of this Court. He cited Antulay’s case, Supreme Court Bar Association’s case and Ahlawat’s case as instances in which this Court had corrected its earlier judgments. He advocated : (i) for oral hearing on such an application and (ii) for hearing by Bench of Judges other than those who passed the order on the ground that it would inspire confidence in the litigant public.

18. Mr. K. K. Venugopal, the learned Senior Counsel, while adopting the arguments of Mr. Shanti Bhushan submitted that the provisions of O. XLVII, R. 6 of the Supreme Court Rules,is a mere restatement of the provisions of Art. 137 of the Constitution and that the inherent jurisdiction of this Court might be exercised to remedy the injustice suffered by a person. He suggested that a Constitution Bench consisting of senior Judges and the Judges who passed the order under challenge, could be formed to consider the application seeking correction of final orders of this Court. He added that to ensure that floodgates are not opened by such a remedy, an application for invoking the inherent power of this Court might require that it should be certified by a senior Advocate and in case of frivolous application the petitioner could be subjected to costs. He relied on the judgment of United States in United States of America vs. Ohio Power Company (1 Lawyers’ ED 2d 683) to show that in every jurisdiction the Courts have corrected their own mistakes. He cited the judgment of this Court in Harbans Singh vs. State of Uttar Pradesh and others (1982) 2 SCC 101 to show that even after the dismissal of the review petition the Supreme Court reconsidered its own judgment; he pleaded for laying down guidelines in regard to entertaining such an application.

19. Mr. Anil B. Divan, the learned Senior Counsel, submitted that Art. 129 of the Constitution declared this Court to be a Court of record so it would have inherent powers to pass appropriate orders to undo injustice to any party resulting from judgments of this Court. He relied on the judgment of this Court in Supreme Court Bar Association’s case (supra) to show that such a power was exercised by this Court and pleaded to fashion appropriate procedure for entertaining application to reconsider earlier judgment of this Court at the instance of an aggrieved person to do justice to the parties.

20. The learned Attorney-General argued that the remedy provided under Art. 32 of the Constitution would not be available to a person aggrieved by the final order of this Court; he nonetheless supported the contentions urged by other learned counsel that in case of gross miscarriage of justice, this Court ought to exercise its inherent powers by entertaining an applicaton to examine the final order of this Court, even when a review was rejected,in the rarest of the rare cases. According to him where the order was passed without jurisdiction or in violation of the principles of natural justice, the case would fall in the rarest of the rare cases. He, however, contended that an order of this Court could not be said to violate fundamental rights conferred under Part III of the Constitution and, therefore, on that ground no relief could be claimed. He submitted that under Art. 137 read with O. XI, R. 1 of the Supreme Court Rules, 1966 review of an order of this Court is provided which will be considered by the same Bench unless the same Juges are not available by reason of demitting the office. In regard to reconsideration of the judgment under the inherent power of the Court he referred to the judgment of the Federal Court in Raja Prithwi Chand Lall Choudhary etc. vs. Rai Bahadur Sukhraj Rai and others, etc. (1940 (2) FCR 78). He submitted that for correction of a final judgment of this Court on the ground of lack of jurisdiction or violation of principle of natural justice, a curative petition could be entertained which might be heard by an appropriate Bench composed of the senior Judge as well as Judges who passed the order.

21. Dr. Rajiv Dhavan, the learned Senior Counsel, argued that since the Supreme Court is the creature of the Constitution so the corrective power has to be derived from the provisions conferring jurisdiction on the Supreme Court like Arts. 32 and 129-140; such a power does not arise from an abstract inherent jurisdiction. The corrective power must be exercised so as to correct an injustice in a case of patent lack of jurisdiction in a narrow sense, not in the Anisminic’s broader sense, and gross violation of natural justice. Relying on the judgment of House of Lords in R vs. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2)’s case (1999 (1) All ER 577) he has submitted that this Court has inherent power to correct its own judgment where a party through no fault of his own has been subjected to an unfair procedure giving scope for bias. His further contention is that the corrective power is a species of the review power and Arts. 129, 137, O. XL, R. 5 and O. XLVII, Rules 1 and 6 indicate that this Court has inherent power to set right its own judgment. He referred to the decisions of this Court in Antulay’s case, Supreme Court Bar Association’s case, Ahlwat’s case and Triveniben’s case (supra) to impress upon as that this Court has earlier exercised this power. He submitted that the Supreme Court can also issue practice direction in that behalf.

22. Mr. Ranjit Kumar, the learned Senior Counsel,invited our attention to various provisions of the Constitution dealing with different types of jurisdictions of this Court and advocated that in case of manifest illegality and palpable injustice this Court under its inherent powers could reconsider final judgment/order passed by this Court. He submitted that the composition of the Bench might include senior most Judges along with the Judges who passed the order, if available. It is also his submission that while considering such curative petitions on the ground of manifest illegality and palpable injustice, in the rarest of rare cases, factors like the doctrine of stare decisis and the finality an the certainty of the law declared by this Court are required to be kept in mind. He referred to the judgment of this Court rendered by seven learned Judges in the Keshav Mills Co. Ltd. vs. Commissioner of Income-tax, Bombay North (1965) 2 SCR 908, which was followed by another Bench of seven learned Judges reported in Maganlal Chhaganlal (P) Ltd. vs. Municipal Corporation of Greater Bombay and others (1974) 2 SCC 402 and by a Bench of five learned Judges in the case of the Indian Aluminium Co. Ltd. vs. Commissioner of Income-tax, West Bengal, Calcutta (1972) 2 SCC 150. He stressed that the power of re-consideration of an earlier decision had to be very restricted; when the power of review is very limited and circumscribed as is evident from the decision of the Constitution Bench in Cauvery Water Disputes Tribunal (1993) 1 Suppl. SCC 96 and the Bench of three learned Judges in S. Nagaraj and others vs. State of Karnataka and another (1993) 4 Suppl. SCC 595 and in Ramdeo Chauhan vs. State of Assam (2001) 5 SCC 714 by three learned Judges and in the case of Lily Thomas and others vs. Union of India and others (2000) 6 SCC 224 the exercise of inherent power for correcting the manifest illegality and palpable injustice after dismissal of the review petition has to be much narrower than the power of review.

23. These contentions pose the question, whether an order passed by this Court can be corrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the Court or miscarriage of justice to an aggrieved person.

24. There is no gainsaying that the Supreme Court is the Court of last resort the final Court on questions both of fact and of law including constitutional law. The law declared by this Court is the law of the land; it is precedent for itself and for all the Courts/Tribunals and authorities in India. In a judgment there will be declaration of law and its application to the facts of the case to render a decision on the dispute between the parties to the lis. It is necessary to bear in mind that the principles in regard to the highest Court departing from its binding precedent are different from the grounds on which a final judgment between the parties, can be reconsidered. Here, we are mainly concerned with the latter. However, when reconsideration of a judgment of this Court is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge. It is, therefore, relevant to note that so much was the value attached to the precedent of the highest Court that in the London Street Tramways Company, Limited vs. London County Council (LR 1898 AC 375), the House of Lords laid down that its decision upon a question of law was conclusive and would bind the House in subsequent cases and that an erroneous decision could be set right only by an Act of Parliament.

25. In Hovstead and others vs. Commissioner of Taxation (LR 1926 AC 155 at 165). Lord Shaw observed :

“Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result. . . . . . . . If this were permitted litigation would have no end, except when legal ingenuity is exhausted.”

26. To the same effect is the view expressed by the Federal Court of India in Raja Prithwi Chand Lal Choudhary’s case (supra) placing reliance on dicta of the Privy Council in Venkata Narasimha Appa Row vs. Court of Wards (1886 (2) AC 660 at 664). Gwyer, C.J. speaking for the Federal Court observed:

“This Court will not sit as a Court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re-opened and re-heard : “There is a salutary maxim which ought to be observed by all Courts of last resort – Interest reipublicae ut sit finis litium. [5] Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a Tribunal as this.”

27. In S. Nagaraj’s case (supra), an application was filed by the State for clarification of the order passed earlier. It was urged by the petitioner that any modification or recalling of the order passed by this Court would result in destroying the principle of finality enshrined in Art. 141 of the Constitution. Sahai, J. speaking for himself and for Pandian,J. observed :

“Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice.”

The learned Judge referring to the judgment of Raja Prithwi Chand Lall Choudhury’s case (supra) further observed :

“Even when there was not statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice.”

28. The position with regard to conclusive nature of the precedent obtained an England till the following practice statement was made by Lord Gardiner, L.C. in Lloyds Bank Ltd. vs. Dawson and others (Note 1966 (3) All ER 77) on behalf of himself and the Lords of Appeal in Ordinary.

“They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”

29. The principle in regard to departing from an earlier view by the House, after the said practice statement, is reflected in the speech of Lord Reid in Jones vs. Secretary of State for Social Services, Hudson vs. Secretary of State for Social Services (conjoined appeals) (1972 (1) All ER 145), who observed:

“The old view was that any departure from rigid adherence to precedent would weaken that certainty. I did not and do not accept that view. It is notorious that where an existing decision is disapproved but cannot be overruled Courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in so doing; they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one can say in advance whether in a particular case the Court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that overruling such a decision will promote and not impair the certainty of the law.

But that certainty will be impaired unless this practice is used sparingly. I would not seek to categorise cases in which it should or cases in which it should not be used. As time passes experience will supply some guide. But I would venture the opinion that the typical case for reconsidering an old decision is where some broad issue is involved, and that it should only be in rare cases that we should reconsider questions of construction of statutes or other documents.”

30. In Fitzleet Estates Ltd. vs. Cherry (Inspector of Taxes) (1977 (3) All ER 996) Lord Wilberforce observed :

“My Lords, in my firm opinion, the 1966 Practice Statement was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by majority : I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate Tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it.”

Lord Edmund-Davies observed :

“My Lords, I respectfully share your views that the Chancery Lane decision (1966 (1) All ER 1) was correct. But even had I come to the opposite conclusion, the circumstrances adverted to are such that I should not have thought it ‘right to depart from it now. To do so would have been to open the floodgates to similar appeals and thereby to impair that reasonable certainty in the law which the Practice Statement (Note 1966 (3) All ER 77) itself declared to be ‘an indispensable foundation upon which to decide what is the law and its application to individual cases’.”

31. The law existing in other countries is aptly summarised by Aharon Barak in his treatise [6]thus :

“The authority to overrule exists in most countries, whether of civil law or common law tradition. Even the House of Lords in the United Kingdom is not bound any more by its precedents. The Supreme Court of the United States was never bound by its own decisions, and neither are those of Canada, Australia, and Israel.”

32. To what extent the principle of stare decisis binds this Court, was considered in the case of Keshav Mills Co. Ltd. (supra). The question before a Constitution Bench of seven learned Judges of this Court was : to what extent the principle of stare decisis could be pressed into service where the power of this Court to overrule its earlier decisions was invoked. The Court expressed its view thus :

“When this Court decides questions of law, its decisions are, under Art. 141, binding on all Courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroenous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions.”

33. In Maganlal Chhaganlal’s case (supra), a Bench of seven learned Judges of this Court considered, inter alia, the question : whether a judgment of the Supreme Court in Northern India Caterers’ case was required to be overruled. Khanna, J. observed :

“At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious set back if the highest Court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all Courts in the country under Art. 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law.”

34. In the case of the Indian Aluminium Co. Ltd. (supra), the question before a Constitution Bench of five learned Judges was : when can this Court properly dissent from a previous view?

35. In regard to the effect of an earlier order of this Court Sawant, J. speaking for the Constitution Bench observed in Cauvery Water Disputes Tribunal’s case (supra) as follows:

“The decision of this Court on a question of law is binding on all Courts and authorities. Hence under the said clause the President can refer a question of law only when this Court has not decided it. Secondly, a decision given by this Court can be reviewed only under Art. 137 read with R. 1 of O. XL of the Supreme Court Rules, 1966 and on the conditions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. (See Bengal Immunity Company Ltd. vs. State of Bihar (1955) 2 SCR 603.

36. In the cases of Ramdeo Chauhan (supra) and Lily Thomas (supra), the question before the Court was, the scope of the power of review of a judgment of this Court under Art. 137 of the Constitution read with S. 114, OrderXLVII of the C.P.C. and O. XL, R. 1 of the Supreme Court Rules, 1966.

37. In the case of Ex parte Pinochet Ugarte (No. 2) (supra), on November 25, 1998 the House of Lords by majority 3:2 restored warrant of arrest of Senator Pinochet who was the Head of the State of Chile and was to stand trial in Spain for some alleged offences. It came to be known later that one of the Law Lords (Lord Hoffmann), who heard the case, had links with Amnesty International (A.I.) which had become a party to the case. This was not disclosed by him at the time of the hearing of the case by the House. Pinochet Ugarte, on coming to know of that fact, sought reconsideration of the said judgment of the House of Lords on the ground of an appearance of bias not actual bias. On the principle of disqualification of a Judge to hear a matter on the ground of appearance of bias it was pointed out.

“The principle that a judge was automatically disqualified from hearing a matter in his own cause was not restricted to cases in which he had a pecuniary interest in the outcome, but also applied to cases where the judge’s decision would lead to the promotion of a cause in which the judge was involved together with one of the parties. That did not mean that judges could not sit on cases concerning charities in whose work they were involved, and judges would normally be concerned to rescue themselves or disclose the position to the parties only where they had an active role as trustee or director of a charity which was closely allied to and acting with a party to the litigation. In the instant case, the facts were exceptional in that A1 was a party to the appeal, it had been joined in order to argue for a particular result and the Law Lord was a director of a charity closely allied to A1 and sharing its objects. Accordingly, he was automatically disqualified from hearing the appeal. The petition would therefore be granted and the matter referred to another committee of the House for rehearing per curiam.”

38. On the point of jurisdiction of the House to correct any injustice in an earlier order, it was observed : “In principle it must be that your Lordships, as the ultimate Court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and, therefore, its inherent jurisdiction remains unfettered. In Cassell and Co. Ltd. vs. Broome (No. 2) (1972 (2) All ER 849 : 1972 AC 1136) your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.”

And it was held.

“An appeal to the House of Lords will only be reopened where a party through no fault of its own, had been subjected to an unfair procedure. A decision of the House of Lords will not be varied or rescinded merely because it is subsequently thought to be wrong.”

39. We may notice here that in these cases except in Raja Prithwi Chand Lall Choudhary (supra) and Ex parte Pinochet Ugarte (No. 2) (supra), the question was in what circumstances the ratio in the earlier judgment of the highest Court having precedent value could be departed. In the aforementioned two cases the decision was rendered on an application seeking reconsideration of the final judgment of the Federal Court and House of Lords respectively. In view of the specific provision of Art. 137 of the Constritution read with O. XL, R. 1 of the Supreme Court Rules, conferring power of review on this Court, the problem in entertaining a review petition against its final judgment which its precursor – the Federal Court – had to face, did not arise before this Court.

40. The petitioners in these writ petitions seek reconsideration of the final judgments of this Court after they have been unsuccessful in review petition and in that these cases are different from the cases referred to above. The provision of O. XL, R. 5 of the Supreme Court Rules bars further application for review in the same matter. The concern of the Court now is whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, complaining of the gross abuse of the process of Court and irremedial injustice. In a State like India, governed by rule of law, certainty of law declared and the final decision rendered on merits in a lis between the parties by the highest Court in the country is of paramount importance. The principle of finality is insisted upon not on the ground that a judgment given by the Apex Court is impeccable but on the maxim “Interest reipublicae ut sit finis litium 7.

7 It concerns the state that there be an end of law-suits. It is in the interest of the State that there should be an end of law- suit.

41. At one time adherence to the principle of stare decisis was so rigidly followed in the Courts governed by the English jurisprudence that departing from an earlier precedent was considered heresy. With the declaration of the practice statement by the House of Lords, the highest Court in England was enabled to depart from a previous decision when it appeared right to do so. The next step forward by the highest Court to do justice was to review its judgment inter partie to correct injustice. So far as this Court is concerned, we have already pointed out above that it has been conferred the power to review its own judgments under Art. 137 of the Constitution. The role of judiciary merely to interpret and declare the law was the concept of bygone age. It is no more open to debate as it is fairly settled that the Courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final Courts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment. In Union of India and another etc. vs. Raghubir Singh (dead) by LRs. etc. etc. (1989) 2 SCC 754 Pathak, C.J. speaking for the Constitution Bench aptly observed :

“But like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations, limitations arising by reference to the need for re-adjustment in a changing society, a re-adjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that “the life of the law has not been logic it has been experience” (Oliver Wendell Holmes : The Common Law, p.5), and again when he declared in another study (Oliver Wendell Holmes: Common Carriers and the Common Law (1943) 9 Cur LT 387, 388) that “the law is forever adopting new principles from life at one end,” and “sloughing off” old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined (Julius Stone : Legal Systems and Lawyers Reasoning, pp. 58-59).”

42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision-making process not disclosing his links with a party to the case, or abuse of the process of the Court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human falliblity, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are perusaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final Court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.

43. It may be useful to refer to the judgment of the Supreme Court of United States in Ohio Power Company’s case (supra). In that case the Court of claims entered judgment for refund of tax, alleged to have been overpaid, in favour of the tax payer. On the application of the Government a writ of certiorari against that judgment was declined by the Supreme Court of United States in October, 1955. The Government sought rehearing of the case by filing another application which was dismissed in December, 1955. A second petition for hearing was also rejected in May, 1956. However, in June, 1956 the order passed in December, 1955 was set aside sua sponte (of its own motion) and that case was ordered to be heard along with two other pending cases in which the same question was presented. In those two cases the Supreme Court held against the tax payer and, on the authority of that judgment, reversed the judgment of the Court of claims. Four learned members of the Court in per curiam opinion, rested the decision “on the ground of interest in finality of the decision must yield where the interest of justice so required.” Three learned members dissented and held that denial of certiorari had become final and ought not to be disturbed. Two learned members, however, did not participate.

44. This Court in Harbans Singh’s case (supra), on an applicaton under Art. 32 of the Constitution filed after the dismissal of special leave petition and the review, reconsidered its judgment. In that case, among others, the petitioner and another person were convicted under S. 302 of I.P.C. and sentenced to death. In the case of one of the remaining two convicts, the Supreme Court commuted the death sentence to life imprisonment. While staying the death sentence of the petitioner, A. N. Sen, J. in his concurring opinion, noticed the dismissal of the petitioner’s special leave, review petitions and the petition for clemency by the President and observed :

“Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Arts. 32 and 136 of the Constitution, I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice.”

45. In Antulay’s case (supra), the majority in the seven-Judge Bench of this Court set aside an earlier judgment of the Constitution Bench in a collateral proceeding on the view that the order was contrary to the provisions of the Act of 1952; in the background of that Act without precedent and in violation of the principles of natural justice, which needed to be corrected ex debito justitiae.

46. In Supreme Court Bar Association’s case (supra), on an application filed under Art. 32 of the Constitution of India, the petitioner sought declaration that the Disciplinary Committees of the Bar Councils set up under the Advocates Act, 1961, alone had exclusive jurisdiction to inquire into and suspend or debar an advocate from practising law for professional or other misconduct and that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction had no such jurisdiction, power or authority in that regard. A Constitution Bench of this Court considered the correctness of the judgment of this Court in Re : Vinay Chandra Mishra (1995) 2 SCC 584. The question which fell for consideration of this Court was : whether the punishment of debarring an advocate from practice and suspending his licence for a specified period could be passed in exercise of power of this Court under Art. 129 read with Art. 142 of the Constitution of India. There an errant advocate was found guilty of criminal contempt and was awarded the punishment of simple imprisonment for a period of six weeks and was also suspended from practice as an Advocate for a period of three years from the date of the judgment of this Court for contempt of the High Court of Allahabad. As a result of that punishment all elective and nominated offices/posts then held by him in his capacity as an Advocate had to be vacated by him. Elucidating the scope of the curative nature of power conferred on the Supreme Court under Art. 142, it was observed:

“The plenary powers of the Supreme Court under Art. 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exisets as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which the Supreme Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. It is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Supreme Court to prevent “clogging or obstruction of the stream of justice.”

In spite of the width of power conferred by Art. 142, the Constitution Bench took the view that suspending the advocate from practice and suspending his license was not within the sweep of the power under the said article and overruled the judgment in ReV.C.Mishra’s case (supra)

47. In M. S. Ahlwat’s case (supra), the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under S. 193, I.P.C. in Afzal vs. State of Haryana (1996) 7 SCC 397. He filed an application under Art. 32 of the Constitution assailing the validity of that order. Taking note of the complaint of miscarriage of justice by the Supreme Court in ordering his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was no virtue but to correct it was a compulsion of judicial conscience. The correctness of the judgment was examined and the error was rectified. )

48. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Arts. 129 and 142 which confer very wide powers on this Court to do complete justice betweeen the parties. We have already indicated above that the scope of the power of this Court under Art.139 as a Court of record and also adverted to the extent of power under Art. 142 of the Constitution.

49. The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarraige of justice, may reconsider its judgments in exercise of its inherent power.

50. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground 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 a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.

51. Nevertheless, we think that a 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.

52. The petitioner, in the curative petition, shall ever 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 fulfillment of the above requirements.

53. 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 matters needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders. It shall be open to the Bench at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

54. Insofar as the present writ petitions are concerned, the Registry shall process them, notwithstanding that they do not contain the averment that the grounds urged were specifically taken in the review petitions and the petitions were dismissed in circulation.

55. The point is accordingly answered.

56. Banerjee, J—I have had the privilege of going through a very lucid expression of opinion by brother Quadri and while recording my concurrence therewith I wish to add a few paragraphs of my own.

57. The issue involved presently though not a concept within the ambit of doctrine of stare decisis but akin thereto the effect as to the scope or finality of the decision of this Court in the normal course of events. There cannot possibly be any manner of doubt that the matter once dealt with this Court attains a state of finality and no further grievance can be had in regard thereto. The founding fathers of the Constitution decidedly provided that the decision of this Court as final, conclusive and binding – final and conclusive inter-parties and binding on all. But the makers have also conferred a power of review of the judgment of this Court and the perusal of the provisions of Arts. 137 and 145 makes it abundantly clear. In the event, however, a party stands aggrieved by reason of a rejection of review, the question posed as to whether a litigant thereof to suffer the onslaught for all times to come and in perpetuity when on the face of the order it appears to be wholly without jurisdiction or in violation of natural justice – a further factum of there being a bias or gross or manifest injustice, which shocks the conscience of a reasonable man : needless to record that the facts, as noticed above, are not only unwarranted but possibly in the region of impossibility or more appropriately improbable.

58. Mr. K. K. Venugopal, the learned Senior Counsel appearing in support of one of the matters before this Bench, has been rather emphatic in his submissions as regards the apprehension of bias and it is his contention that a mere likelihood of bias should prompt this Court to allow a further consideration of the matter. Incidentally, be it noted that in all these matters, petitions under Art. 32 of the Contitution have been filed with a prayer for issuance of the writ of certiorari. We called for the records in some of the matters, which stand concluded by decisions of this Court and the principle issue thus arises as to the maintainability of a petition under Art. 32 of the Constitution. There is no denial of the fact that the right exists to move this Court for enforcement of the rights conferred by Part III of the Constitution and stands conferred in terms of Art. 32 and the language used therein is of widest possible amplitude but as regards the issuance of writs, the view seems to be rather well settled in the negative.

59. About four decades ago, in Naresh Shridhar Mirajkar and others vs. State of Maharashtra and another (1966) 3 SCR 744, a nine-Judge Bench of this Court in no uncertain terms negatived the availability of writ jurisdiction under Art. 32 and with utmost clarity and felicity of expression stated :

“We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writ of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. We have no doubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Art. 32 to correct such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Art. 32. The words used in Art. 32 are no doubt wide; but having regard to the considerations which we have set out in the course of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this Court’s jurisdiction to issue a writ of certiorari under Art. 32; to hold otherwise would be repugnant to the well recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this Court’s decisions in relation to the said point.”

60. Two decades later, this Court in A. R. Antulay vs. R. S. Nayak and another (1988) 2 SCC 602, relying upon the nine-Judge Bench judgment, came to a conclusion that in view of the decision in Mirajkar case, it must be taken as concluded that the judicial proceedings in this Court are not subject to the writ jurisdiction under Art. 32 of the Constitution and that is so on account of the fact that Benches of this Court are not subordinate to larger Benches thereof and certiorari is not admissible thus for quashing of the orders made on the judicial side of the Court. In Smt. Triveniben vs. State of Gujarat (1989) 1 SCC 678, a Constitution Bench of this Court also in no uncertain terms laid down that it will not be open to this Court in exercise of its jurisdiction under Art. 32 to go behind or to examine the final verdict reached by a competent Court. To complete the list, however, a very recent decision of this Court in Ajit Kumar Barat vs. Secretary, Indian Tea Association and others (2001) 5 SCC 42 one of us (Shivaraj V. Patil, J.) upon consideration of Mirajkar (supra) and Antulay (supra) came to a conclusion that authority of an order passed by this Court itself cannot be subjected to writ jurisdiction of this Court.

61. On the wake of the aforesaid, there is thus no manner of doubt that the plea of the availability of writ jurisdiction, as envisaged under Art. 32 of the Constitution, cannot be sustained and the law seems to be well settled on this score and as such we need not delve into neither dilate any further thereon.

62. Having regard to the conclusion, as above, does it, however, mean and imply a closed door even if the order of this Court depicts that the same stands in violation of natural justice adversely and seriously affecting the rights of the parties or the same depicts manifest injustice rendering the order a mockery of justice – can it be said that the binding nature of an order of this Court, cannot thus be ever be corrected even if it causes insurmountable difficulty and immense public injury – the debate has a very large and wide ramification and thus will have to be dealt with in a manner with care and caution and with proper circumspection as regards its impact – the principal basis being the concept of justice and this is where the principle of ex debito justitiae comes to play. Can it be said that the justice delivery system of the country is such that in spite of noticing a breach of public interest with a corresponding social ramification, this Court would maintain a delightful silence with a blind eye and deaf ear to the cry of a society in general or even that of a litigant on the ground of finality of an order as passed by this Court? True the finality shall have to be maintainable but it is the principal requirement, which the law envisages? Roscoe Pound stated that flexibility is the greatest virtue of law and thus its applicability should also be flexible rather than a rigid insistence on a strict format. Justice of the situation shall have to be considered with a fair perception of such a concept rather than with a blinking light – attention ought to be focussed on a larger social perspective since law is meant for the society and if flexibility is its virtue, which law enjoys, its corresponding primary duty thus would be to change the legal horizon and perspective with the appropriate socio-economic change. The law must follow the society rather than abandon the society and carry on it strict track without any deviation or without being hindered of the social changes and thus resultantly face a social catastrophe.

63. Lord Denning’s exposition of the doctrine ‘ex debito justitiae’ in A/s Cathrineholm vs. Norequipment Trading Ltd. (1972 (2) All ER 538) has been stated to be rather restrictive, but since basically the same stands out to be on the concept of justice, speaking for myself do not subscribe to such a criticism. The Master of the Rolls stated that if the judgment is irregular – that is, which ought not have been signed at all – then the defendant is entitled ex debito justitiae to have it set aside but in the event it is otherwise regular, question of setting aside of the judgment would not arise. It is, thereafter, however, arises, the question as to the true effect of Regular and Irregular Judgments : Since the issue involves a much wider debate, we refrain ourselves to attribute meanings thereto or to dilate on the ramifications of the terminology having regard to further enunciation of the doctrine by both the English Courts and the Indian Supreme Court.

64. Adverting to the true purport of the maxim, therefore, it is no gainsaid that “the same relates to and arises from the concept of justice. In the event there appears to be infraction of the concept, question of there being a turn around and thereby maintaining a total silence by the law Courts would not arise. It is on this score, the learned Attorney General for India, appearing as Amicus Curiae, contended that Supreme Court has the jurisdiction to exercise this inherent power for the ends of justice or to prevent abuse of the process of the Court. Though we are not inclined to ascribe an order of this Court as an abuse of the process of the Court, but the factum of the availability of inherent power for the ends of justice cannot in any way be decried. The Constitution of India assigned a pivotal role on to the Supreme Court providing therein the supremacy of law with the rationale being justice is above all. The exercise of inherent power of this Court also stands recognised by Order XLVII, R. 6 of the Supreme Court Rules, 1966, which reads as below :

“6. Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

65. The observations of this Court in A.R. Antulay (supra) lends concurrence to such an exercise of power by this Court ex debito justitiae. The Court can exercise its inherent power in the event of there being an error brought to the notice of this Court. Mukharji, J. (as he then was) in paragraph 40 of the judgment in A. R. Antulay (supra) very lucidly and with utmost precision stated:

“The question of validity, however, is important in that the want of jurisdiction can be established solely by a superior Court and that, in practice, no decision can be impeached collaterally by any inferior Court. But the superior Court can always correct its own error brought to its notice either by way of petition or ex debito justitiae. (See Rubinstein’s Jurisdiction and Illegality).”

66. Incidentally a Seven Judge Bench of this Court in Synthetics and Chemicals Ltd. and others vs. State of U. P. and others, (1990) 1 SCC 109 relied upon another Judgment of Lord Denning in Ostime (Inspector of Taxes) vs. Australian Mutual Provident Society (1959 (3) All ER 245 : 1960 AC 459) and the dissent noting by Justice Jackson in the case of Commonwealth of Massachusetts et al vs. USA (92 L ed 968), wherein in similar tone it has been stated that as soon as one finds a journey in the wrong direction, there should always be an attempt to turn to the right direction since law Courts ought to proceed for all times in the right path rather than in the wrong. Adverting to the issue of inherent power, the observation of the Court in S. Nagaraj and others vs. State of Karnataka and another (1993) 4 Suppl. SCC 595 seems to be rather apposite. This Court in paragraph 19 of the report, upon relying on the fundamental principles of jurisprudence that justice is above all, stated as below ;

“Review literally and even judicially means re-exemption or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage or justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury vs. Sukhraj Rai (AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45) the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae vs. Bijai Govind Singh (1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar 175) that an order made by the Court was final and could not be altered.

“. . . . .nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in . . . . . .The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments, or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.

Basis for exercise of the power was stated in the same decision as under :

“It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.”

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII, Rule 1 of the Civil Procedure Code. The expression ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”

67. In one of its recent pronouncements (Supreme Court Bar Association vs. Union of India and another (1998) 4 SCC 409 this Court has had the occasion to deal with the issue at some length relying upon Article 129 read with Article 142 of the Constitution. The plenary powers of the Supreme Court, as envisaged under Article 142, stand out to be complimentary to those powers to do complete justice between the parties and it is on this score in paragraphs 47 and 48 of the report, this Court observ-ed :

“47. The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent “clogging or obstruction of the stream of justice.” It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or case under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of Court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz. to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of Court, the contemner and the Court cannot be said to be litigating parties.

48. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice “between the parties in any cause or matter pending before it”. The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by “ironing out the creases” in a cause or matter before it. Indeed this Court is not a Court of restricted jurisdiction of only dispute-settling. It is well recognised and established that this Court has always been a law-maker and its role travels beyond merely dispute-settling. It is a “problem-solver in the nebulous areas” (See K. Veeraswami vs. Union of India, (1991) 3 SCC 655 : 1991 SCC (Cri) 734) but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.”

68. Incidentally, this Court stands out to be an avenue for redressal of grievance not only in its revisional jurisdiction as conferred by the Constitution but as a platform and forum for every grievance in the country and it is on this context Mr. Shanti Bhushan, appearing in support of the some of the petitioners, submitted that the Supreme Court in its journey for over 50 years has been able to obtain the confidence of the people of the country, whenever the same is required – be it the atrocities of the police or a public grievance pertaining to a governmental action involving multitudes of problems. It is the Supreme Court, Mr. Shanti Bhushan contended, where the people feel confident that justice is above all and would be able to obtain justice in its true form and sphere and this is beyond all controversies. It has been contended that finality of the proceeding after an Order of the Supreme Court, there should be, but that does not preclude or said to preclude this Court from going into the factum of the petition for gross injustice caused by an Order of the Supreme Court itself under the inherent power being an authority to correct its errors – any other view should not and ought not be allowed to be continued. Needless to record here, however, that review jurisdiction stand foisted upon this Court in terms of the provisions of the Constitution, as noticed hereinbefore and it is also well-settled that a second review petition cannot be said to maintainable. Reference may be made in this context to a decision of this Court in the case of J. Ranga Swamy vs. Govt. of A.P. and Others (AIR 1990 SC 535), wherein this Court in paragraph 3 stated as below :-

We are clearly of the opinion that these applications are not maintainable. The petitioner, who appeared in person, referred to the judgment in Antulay’s case, (1988) 2 SCC 602. We are, however, of the opinion that the principle of that case is not applicable here. All the points which the petitioner urged regarding the constitutionality of the Government orders in question as well as the appointment of respondent instead of petitioner to the post in question had been urged before the Bench, which heard the civil appeal and writ petitions originally. The petitioner himself stated that he was heard by the Bench at some length. It is, therefore, clear that the matters were disposed of after a consideration of all the points urged by the petitioner and the mere fact that the order does not discuss the contentions or give reasons cannot entitle the petitioner to have what is virtually a second review.”

69. True, due regard shall have to have as regards opinion of the Court in Ranga Swamy (supra), but the situation presently centres round that in the event of there being any manifest injustice would the doctrine of ex debito justitiae be said to be having a role to play in sheer passivity or to rise above the ordinary heights as it preaches that justice is above all. The second alternative seems to be in consonance with time and present phase of socio-economic conditions of the society. Manifest justice is curable in nature rather than incurable and this Court would lose its sanctity and thus would belie the expectations of the founding fathers that justice is above all. There is no manner of doubt that procedural law/procedural justice cannot overreach the concept of justice and in the event an Order stands out to create manifest injustice, would the same be allowed to remain in silenco so as to affect the parties perpetually or the concept of justice ought to activate the Court to find a way out to resolve the erroneous approach to the problem. Mr. Attorney General, with all the emphasis in his command, though principally agreed that justice of the situation needs to be looked into and relief be granted if so required but on the same breath submitted that the Court ought to be careful enough to trade on the path, otherwise the same will open up Pandora’s box and thus, if at all, in rarest of the rare cases the further scrutiny may be made. While it is true that law Courts has overburdened itself with the litigation and delay in disposal of matters in the subcontinent is not unknown and in the event of any further appraisal of the matter by this Court, it would brook on further delay resulting in consequences which are not far to see but that would by itself not in my view deter this Court from further appraisal of the matter in the event the same, however, deserve such an additional appraisal – The note of caution sounded by Mr. Attorney as regards opening up of pandora’s box strictly speaking, however, though may be of very practical in nature but the same apparently does not seem to go well with the concept of justice as adumbrated in our constitution. True it is, that practicability of the situation needs a serious consideration moreso when this Court could do without it for more than 50 years, which by no stretch of imagination can be said to be a period not so short. I feel it necessary, however, to add that it is not that we are not concerned with the consequences of reopening of the issue but the redeeming feature of our justice delivery system, as is prevalent in the country, is adherence to proper and effective administration of justice in stricto. In the event there is any affectation of such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affectation of public confidence as regards the doctrine of integrity in the justice delivery system technicality ought not to out-weigh the course of justice – the same being the true effect of the doctrine of ex debito justitiae. The oft quoted statement of law of Lord Hewart, C.J. in R. vs. Sussex Justices, ex p McCarthy (1924 (1) KB 256) that it is of fundamental importance that justice should not only to done, should manifestly and undoubtedly be seen to be done had this doctrine underlined and administered therein. In this context, the decision of the House of Lords in R. vs. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2) seem to be an ipoc making decision, wherein public confidence on the judiciary is said to be the basic criteria of the justice delivery system – any act or action even if it a passive one, if erodes or even likely to erode the ethics of judiciary, matter needs a further look.

70. Brother Quadri has taken very great pains to formulate the steps to be taken and the methodology therefor, in the event of there being an infraction of the concept of justice, as such further dilation would be an unnecessary exercise which I wish to avoid since I have already recorded my concurrence therewith excepting, however, lastly that curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumstances having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a Judge with the subject-matter in dispute. In my view, it is now time that procedural justice system should give way to the conceptual justice system and efforts of the law Court ought to be so directed. Gone are the days where implementation of draconian system of law or interpretation thereof were insisted upon – Flexibility of the law Courts presently are its greatest virtue and as such justice-oriented approach is the need of the day to strive and forge ahead in the 21st century. No costs.

[1]. Halsbury’s Laws of England, Fourth Edition (reissue), Vol. I (1) para 103.

[2]. High Courts of Bombay, Calcutta and Madras.

[3]. Halsbury’s Laws of England, Fourth Edition (reissue) Vol.I(1) para 109.

[4]. In accordance with the requirement of justice; as a matter of right.

[5]. It concerns the State that there be an end of law suits. It is in the interest o the State that there should be an end of law suit.

[6]. “ Judicial Discretion “ at page 234.

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Counsel for the Parties:

Soli J. Sorabjee, Attorney General, Shanti Bhushan, P. A. Mohammed, Anil B. Divan, Rajiv Dutta, K. K. Venugopal, D. A. Dave, Parag P. Tripathi, Ranjit Kumar, Dr. Rajiv Chavan, P. S. Mishra, Sr. Advocates, Ms. Kamini Jaiswal, Ms. Aishwarya Rao, Ms. Bipaakkhu Borthakur, P. Vittal Rao, Ms. Gunwant Dara, Ms. Sudha Gupta, Vikas Singh, Yunus Malik, Ms. Pallavi Parmar, Prashant Chaudhary, Prashant Bhushan, Sanjeev K. Kapoor, Narender Verma,Vishal Gupta, Sanjay Pathak, Anil Mittal, K. K. Mohan, A. T. Patra, S. Sukumaran, Nipun Malhotra, Dr. Mrs. Sonia Hurra, Divyang K. Chhaya, Varun Goswami, A. P. Medh, Dhruv Mehta, K. C. Kaushik, Prateek Jalan, Manish Singhvi, R. N. Poddar, C. Radhakrishna, Ms. Sushma Suri, S. N. Terdol, Sanjay R. Hegde, Satya Mitra, G. Prakash, K. B. Rohtagi, Ms. Aparna Rohtagi Jain, Manoj Aggarwal, Ranji Thomas, Javed M. Rao, Vineet Sinha, Ashok Aggarwal, Rajender Pd. Saxena, B. S. Banthia, V. B. Saharya, Rakesh K. Khanna, Reetesh Singh, Surya Kant, Ms. Sunita Sharma, Ms. Rekha Pandey, D. S.Mahra, Bimal Roy Jad, Bineet Kumar, V. K. Sidharthan, B. K. Khurana, S. Muralidhar, S. Vallinayagam, Ms. Neeru Vaid, Advocates with them, for the Appearing Parties; In person(NP), for Petitioner in W.P. No. 374/2001.