In the judgment of the case – Rajendra Khare v. Swaati Nirkhi and Others, delivered by Justice Ashok Bhushan and Justice Indu Malhotra, at the Supreme Court on January 28, 2021, have pointed out that the basic philosophy inherent in granting power of review of its judgment to the Supreme Court under Article 137 of the Constitution of India is universal acceptance of human fallibility and further, held that the rejection of Misc. Application (M.A.) does not preclude filing of review petition subsequently.
In its decision of the case – Mukesh v. State (NCT of Delhi )-(2018) 8 SCC 149, the SC has elaborately considered the scope and ambit of its review jurisdiction and held, that “5. The power of review of the Supreme Court as envisaged under Article 137 of the Constitution is no doubt wider than review jurisdiction conferred by other statutes on the Court.Article137 empowers the SC to review any judgment pronounced or made, subject, of course, to the provisions of any law made by Parliament or any rule made under Article145 of the Constitution.
"6. An application to review a judgment is not to be lightly entertained and this Court could exercise its review jurisdiction only when grounds are made out as provided in Order XLVII Rule1ofvthe Supreme Court Rules, 2013 framed under Article 145 of the Constitution of India. This Court in Sow Chadra Kante v. Sk Habib- (1975) 1 SCC 674, speaking through V.R. Krishna Iyer J. on review has stated the following on page 675, in para 1:
"1. .... 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 grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.”
As per rule, review in a criminal proceeding is permissible only on the ground of error apparent on the face of record. The SC has, while examining its own review jurisdiction in its decision of the case – P.N.Eswara Iyer v. Supreme Court of India- (1980) 4 SCC 680 in relation with criminal and civil proceedings, had made following observations in paras 34 and 35 :
"34.The rule (Order XL Rule 1), on its face, affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis-à-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 canalizes the flow from the reservoir of power. The stream cannot stifle the source.
"Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limits of the test. Here “record” means any material which is already on record or may, with the permission of the Court, be brought on record. If Justice summons the Judges to allow a vital material in, it becomes part of the record; and if apparent error is there, correction becomes necessituous.
"35. The purpose is plain, the language is elastic and the interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the Rule (Order XL 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 of CPC. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source.”
The ratio of these judgments is that review in a criminal proceeding is permissible only on the ground of error apparent on the face of record. The Misc. Application, which was rejected, was an application to recall the judgment. Grounds for recall of a judgment and grounds to review the judgment can be different. Review is a proceeding, which exists by virtue of the statute. The M.A. which was rejected was not an application to review under Article 137 as well s Order 47 Rule1, thus, by rejection of M.A., it cannot be said that review petition filed by the review petitioner is not maintainable.
The SC has expressed its considered opinion that by mere rejection of the M.A. filed by the review petitioner on June 5, 2018, he cannot be precluded from filing the present review petition. Review petition is, thus, fully maintainable. The order passed in the M.A. does not indicate that any of the issues which were raised were considered and decided by it, and further the review being statutory proceedings cannot be considered on the specious plea raised by the respondents.
The impugned order having been passed on May 18, 2018 – the first day of the hearing without issuing notice under Order XXXIX Rule 2, review petitioner is right in his submission that there is an error apparent on the face of the record.
The Court has pointed out that on May 18, 2018, it had granted liberty to all the respondents to approach the Court, if aggrieved, as the order passed on that date was ex-parte. In the Transfer Petition, review petitioner was not one of the respondents. Hence it cannot be said that liberty was exhausted by the review petitioner by filing the M.A. He has the right to exercise statutory jurisdiction of filing application for review of the judgment. In result, the Supreme Court declared the Contempt petition closed.
