LexRAJENDRA KHARE versus SWAATI NIRKHI AND ORS.
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SUPREME COURT REPORTS
[2021] 1 S.C.R.
[2021] 1 S.C.R. 460
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RAJENDRA KHARE
v.
SWAATI NIRKHI AND ORS.
(Review Petition (Crl.) No. 671 of 2018)
In
(Transfer Petition (Crl) No. 262 of 2018)
JANUARY 28, 2021
[ASHOK BHUSHAN AND INDU MALHOTRA, JJ.]
Constitution of India:
Arts. 137 and 145 r/w Order XLVII rule 1 and Order XXXIX
Rule 2 of Supreme Court Rules, 2013 – Review jurisdiction – Scope
and ambit of – By order dated 18.05.2018, a criminal case was
transferred from the court of Delhi to the Court at Allahabad, Uttar
Pradesh – The informant of the criminal case, who was not impleaded
as party in the transfer petition, filed Miscellaneous Application
for recalling the order dated 18.05.2018 – The Application was
dismissed – Review petition by the informant – Held: The review
petitioner has right to exercise statutory jurisdiction of filing
application for review – Mere rejection of the application for
recalling the order dated 18.05.2018,would not preclude the
petitioner from filing the review petition – The order sought to be
reviewed, having been passed on the first day of hearing without
issuing notice u/Order XXXIX, Rule 2, there is an error apparent on
the face of the record and the same needs to be corrected – Order
dated 18.05.2018 is recalled and the Transfer Petition is revived,
impleading the review petitioner as respondent therein.
Allowing the Review Petition, the Court
HELD: 1.1 The rectification of an order emanates from the
fundamental principles that justice is above all. In the
Constitution, substantive power to rectify or review the order by
the Supreme Court has been specifically provided under Article
137 of the Constitution. The basic philosophy inherent in granting
the power to the Supreme Court to review its judgment under
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Article 137 is the universal acceptance of human fallibility. [Para
16][471-G-H]
1.2 The review petition, which has been filed by the review
petitioner to review the judgment is referable to Article 137 of
the Constitution read with Order XLVII of Supreme Court Rules,
2013, framed under Article 145 of the Constitution. The
jurisdiction of this Court to review is, thus, specifically provided
in the Constitution as well as Rules framed under Article 145.
[Paras 9, 10 and 11][467-E, G; 468-B-C]
Vikram Singh alias Vicky Walia and Anr. vs. State of
Punjab and Anr., (2017) 8 SCC 518 : [2017] 8 SCR 177
– relied on.
Mukesh vs. State (NCT of Delhi), (2018) 8 SCC 149 :
[2018] 7 SCR 898 – referred to.
1.3 By mere rejection of Miscellaneous Application (MA.)
filed by the review petitioner, the review petitioner cannot be
precluded from filing the present review petition. The M.A., 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 as Order XLVII Rule 1 of
Supreme Court Rules. [Paras 13 and 15][471-D-E; 470-G-H]
1.4 This Court with regard to filing of applications styled as
application for clarification, modification or recall of the judgment
has observed that in substance those applications are for review
and they should not be entertained and the applicants be given
leave to file a review applications which may be dealt with as per
the Rules of the Court. [Para 14][471-A-B]
1.5 The plea that all grounds which have been taken in the
review petition were earlier taken in M.A., and due to rejection
of M.A. they cannot be re-agitated, cannot be acceded to. The
order passed in M.A. does not indicate that any of the issues
which were raised were considered and decided by this Court,
and further the review being statutory proceeding, cannot be
RAJENDRA KHARE v. SWAATI NIRKHI AND ORS.
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SUPREME COURT REPORTS
[2021] 1 S.C.R.
considered on the specious plea raised by the respondents. [Para
15][471-E-F]
Delhi Administration vs. Gurdip Singh Uban and Ors.
(2000) 7 SCC 296:[2000] 2 Suppl. SCR 496 – relied
on.
2.1 A perusal of the order dated 18.05.2018 in the transfer
petition indicates that the order was passed on the preliminary
hearing of the transfer petition and before passing the order, no
notice was issued under Order XXXIX Rule 2 of the Supreme
Court Rules, 2013. The order having been passed on the first
day of hearing without issuing notice under Order XXXIX Rule
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