ZAHIRA HABIBULLAH SHEIKH AND ANR. ETC. versus STATE OF GUJARAT AND ORS. ETC.

Citation: [2004] SUPP. 2 S.C.R. 571 · Decided: 07-05-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU

Judgment (excerpt)

ZAHIRA HABIBULLAH SHEIKH AND ANR. ETC. 
A 
v. 
STATE OF GUJARAT AND ORS. ETC. 
MAY 7, 2004 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
Constitution of India, 1950; Articles 136, 137 r/w Order XL of the 
Supreme Court Rules, 1966 : 
B 
Review Petitions for modification ef directions given by Supreme C 
Court for fresh trial outside the State-Held: Review of order in a criminal 
proceeding limited to errors apparent on the face of record-Review ought 
to be resorted to with great sense of responsibility and should not be used 
as a device for ventilating remorselessness-Supreme Court has ample 
jurisdiction to fu: the place/court for fresh trial-If basis of grievance D 
sufficiently disclosed and relief sought is incidental/ancillary to main relief 
then no formal application would be required even though it may be 
relevant for purposes of determining the Court.fee-Supreme Court had 
given the directions in exercise of its plenary powers as an Appellate Court 
and keeping into consideration the general principles governing claims for E 
transfer and ensuring real/substantial/due and proper justice-Petition is 
thoroughly misconceived, a sheer abuse of process of law-Hence, dismissed. 
Directions by Supreme Court for fresh trial outside the State-
Whether creates negative impact upon the functioning of the State judiciary- F 
Held : No, since observation criticism in the judgment as to the manner 
of disposal by the Courts below has to be read with objectivity and not out 
of context. 
Code of Criminal Procedure, 1973; Ss. 311 and 391 : 
Evidence on record-Consideration of-Held : Since appeals were 
allowed on the ground that the investigation was vitiated, it was not 
nece1sary to record any finding as to the conviction/acquittal of accused-
Hence, the question of consideration of evidence on record except to the 
G 
extent necessary for deciding the appeals, did not arise. 
H 
571 
572 
SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R. 
A 
Respondent-State of Gujarat and one of the accused persons filed 
applications for modification of the Judgment and Order dated 12.4.2004 
of this Court whereby the Court directed fresh trial of the case outside 
the State of Gujarat. 
B 
It was contended by the respondent-State and the accused-
c 
applicant that the direction for fresh trial of the case outside the State 
was not in accordance with law; and that in an appeal against acquittal, 
this Court was required to consider the evidence which would weighed 
with the Court acquitting the accused. 
Dismissing the applications, the Court 
HELD : 1.1. The petition is in essence and substance seeking for 
a review under the guise of making an application for direction and 
D modification, apparently petitioner being fully aware of the normal 
procedure that such applications for review are not, unless Court 
E 
directs, listed for open hearing in Court, at the initial stage at least, 
before orderine nnticr to the other side and could be summarily 
rejected, if found tu 1,,. uf no prima facie merit. The move adopted itself 
is unjustified, and could not be countenanced also either by way of 
review or in the form the preser1t application as well. The nature of 
relief sought, and the reasons assigned are such that even under the 
pretext of filing a review petition such an exercise cannot be undertaken, 
virtually for re-hearing and alteration of the judgment because it is not 
to the liking of the party, when there is no apparent error on record 
F whatsoever to call for even a review. A review application can be filed 
under Article 137 of the Constitution read with Order XL of the 
Supreme Court Rules, 1966. Notwithstanding the wider set of grounds 
for review in civil proceedings, it is limited to 'errors apparent on the 
face of the record' in criminal proceedings. Such applications are not 
G to be filed for the pleasure of the parties or even as a device for 
ventilating remorselessness, but ought to be resorted to with great 
sense of responsibility. [577-C-E, 577-H; 578-C-E) 
P.N Eswara ~ver & Ors. v. Registrar. Supreme Cuurt of India, [19801 
H 4 sec 680, followed. 
Z.H. SHEIKH v. STATE 
573 
Suthendraraja @ Suthenthira Raja @ Santhan & Ors. v. State A 
through DSPICBI, Chennai (1999] 9 SCC 323; Ramdeo Chauhan @ Raj 
Nath v. State'Of Assam, (2001] 5 SCC 714; Devender Pal Singh v. State, 
NCT of Delhi & Anr., (2003] 2 SCC 501 and Delhi Administration v. 
Gurdip Singh Uban & Ors., (2000) 7 SCC 296, relied on. 
1.2. The plea tha

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