Supreme Court of India
DEVENDER PAL SINGHversusSTATE N.C.T. OF DELHI AND ANR.
- Citation
- 2002 INSC 544
- Decided
- 17 December 2002
- Disposal
- Dismissed
- Bench
- M B SHAH
Holding
A review of a death sentence cannot be entertained merely because a minority judge on the bench recorded an acquittal or life sentence; review requires proof of a miscarriage of justice such as a glaring omission or patent mistake.
Summary
The petitioners filed review applications under Article 137 of the Constitution seeking to set aside death sentences imposed by the Supreme Court in three criminal appeals. They argued that because one of the three judges on the bench had either acquitted the accused or suggested life imprisonment, the death penalty should not be awarded and the matter should be referred to a larger bench. The Court examined the scope of review in criminal matters, holding that a review is not a rehearing and can be entertained only on a ground of miscarriage of justice, i.e., a glaring omission, patent mistake or material error. The minority opinion of a judge does not, by itself, constitute such a miscarriage. Consequently, the review petitions were dismissed. A dissenting opinion by Justice Shah suggested that the death sentences could be commuted to life imprisonment, but the majority decision prevailed.
Issues considered
- The scope of review under Article 137 in criminal proceedings, especially concerning death sentences.
- Whether a dissenting or minority view of a judge on a three‑judge bench amounts to a miscarriage of justice justifying review.
- Whether the practice of not imposing death when an acquittal or life sentence is recorded by any judge is a valid ground for review.
- Whether the review petitions should be referred to a larger bench.
Legislation cited
- Constitution of Indias. Article 137, s. Article 141, s. Article 145, s. Article 21
- Supreme Court Rules, 1966s. Order 40 Rule I, s. Order 47 Rule I (CPC), s. Order XL Rule 2, s. Order XL Rule I
Subjects
review petitiondeath penaltymiscarriage of justiceArticle 137Supreme Courtcriminal procedurerarest of raresentencinglarger benchcurative petition
Judgment
A DEVENDER PAL SINGH
V.
STATE N.C.T. OF DELHI AND ANR.
DECEMBER 17, 2002
B [M.B. SHAH, B.N. AGRA WAL AND ARIJIT PASA YAT, JJ.]
Constitution of India, 1950-Article 137:
Review application in Criminal proceedings-Scope of-Held, it has to
C be proved that there is miscarriage ofjustice-Though miscarriage ofjustice
is of wider amplitude, scope of inte1ference under review is limited-Review
proceeding cannot be equated with original hearing-Finality ofthe Judgment
of the Court cannot be reconsidered except where glaring omission or patent
error has crept in earlier-Reference of the case to larger Bench would be
D creation of a new forum-Supreme Court Rules, 1966-0rder XL Rules I and
2.
Review ofdeath sentence-Scope of-Scope for Review of death sentence
awarded is not there merely because one of the Judges in the Bench held that
the accused should be acquilted or that life sentence was appropriate-
Sentencing.
The Review Petitions seek review of the Judgment of this Court
wherein death penalty was imposed on the accused. The petitions were
restricted to the question of sentence. Petitioners contended that death
sentence should not be awarded in a case where one of the three Judges
recorded a finding of acquittal or held that life sentence was appropriate;
that in case of acquittal by one Judge, the case would not be covered in
the category "rarest of rare"; that as a matter of practice death sentence
is not imposed in case of acquittal by trial Court or High Court; and that
since one Judge felt that either life sentence would be imposed or the
accused should be acquitted, the matter should be referred to larger Bench
for review. Dismissing the petitions, the Court
HELD: Per Arijit Pasaya/, J (for himself and Agrawal, J):
I.I. Though the scope of review in criminal proceedings has been
widened to a considerable extent, in any case review is not re-hearing of
332
DEVENDER PAL SINGH v. STATE N.C.T. or DELHI 333
the appeal all over again. In order to maintain the review petition it has A
to be shown that there is a miscarriage of justice. Though the expression
"miscarriage of justice" is of wider amplitude, it has to be kept in mind
that the scope of interference is very limited. Ordinarily application for
review is disposed of by circulation without any detailed arguments, unless
otherwise ordered by the Court. 1337-G, H; 338-AI
B
P.N. Eswara Iyer a11d Ors. v. Registrar, Supreme Court of India, 119801
4 SCC 680 and Ramdeo Chauhan @Raj Nath v. State of Assam, 12001 I 5
sec 714, referred to.
1.2. The scope for review of death sentence awarded is not there
merely because one of the Judges in the Bench held that the accused should C
be acquitted or that life sentence was appropriate. 1335-G; 338-BI
Suthendraraja@Suthenthira Raja @Santhan and Ors. v. State through
DSPICBI, SIT, Chennai, 11999] 9 SCC 323, relied on
1.3. Review is not a routine procedure. A review of earlier order is
D
not permissible unless the Court is satisfied that material error, manifest
on the face of the order undermines its soundness or results in miscarriage
of justice. A review of judgment in a case 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. The stage of E
review is not a virgin ground but review of an earlier order which has
the normal feature of finality. 1345-B-q
Col. Avtar Singh Sekhon v. Union of India and Ors., AIR (1980) SC
2041, relied on .
F
1.4. Whatever nature of the proceeding it is beyond dispute that
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 glaring omission or patent mistake or like grave
error has crept in earlier. 1345-D J
G
Mis Northern India Caterers (India) Pvt. Ltd. v. Lt. Governor of Delhi,
119801 2 sec 167, relied on.
1.5. A judgment of the final Court of the country is final, and a
review of such judgment is an exception. 1345-Ef
H
334 SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.
A 1.6. Compelling reasons for review are non existent in the instant
cases and acceptance of the prayer for reference to a larger Bench would
be the creation of a new forum.
Rupa Ashok Hurra v. Ashok Hurra and Anr., 120021 4 SCC 388 and
Mohini Giri v. Union of India, W.P. (Crl.) 96/2002 AIR (2003) SC 642,
B referred to.
2. While deciding the question whether a case falls under "rarest of
rare category" the nature of the offence and its impact on the society are
determinative factors. Mere acquittal or lesser sentence imposed does not
really relate to the gravity of the offence or its impact on the society. If
C after consideration of the materials, the Court comes to a finding that it
belongs to the "rarest of rare category", acquittal or sentence of life
awarded by trial or High Court should not be considered to be a mitigating
factor. The majority will be precluded as a matter of course from death
sentence and that is not the correct position. 1339-B-q
D State of UP. v. Dharmendra Singh and Anr., [199918 SCC 325; Ronny
@Ronald James Alwaris and Ors. v. State of Maharashtrq, 11998J 3 SCC
625 and Ramdeo Chauhan @Raj Nath v. State of Assam, 12001 5 SCC 714,
referred to.
Pandurang and Ors. v. State of Hyderabad, AIR 1955 SC 216; State
E (Delhi Administration) v. Laxman Kumar and Ors., 11985) 4 SCC 476; Smt.
Lichhamadevi v. State of Rajasthan, 119881 4 SCC 456 and State of
Maharashtra v. Bharat Fakira Dhiwar, 120021 I SCC 622, referred to.
Per Shah, J (Concurring with the reasons and conclusion but
dissenting on the question of sentence): 1348-GI
F
In these matters, if death sentence is altered to imprisonment for life,
it would be sufficient to meet the ends of justice.
Suthendraraja alias Suthenthira Raja alias Santhan and Ors. v. State,
119991 9 sec 323, referred to.
G CRIMINAL APPELLATE JURISDICTION : R.P. (CRL.) No. 497
of 2002.
IN
Criminal Appeal No. 993 of 200 I.
H From the Judgment and Order dated 24.8.2001 of the Designated Court,
DEVENDERPAL SINGH v. STATE N.C.T. OF DELHI [ARIJIT PASAYAT, J.] 335
New Delhi in Special Case No. 4 of 2000. A
WITH
R.P. (Crl.) No. 626 of2002 in Crl. A.. No. 761/2001 and R.P. (Crl.) No.
627/2002 in Crl. A. No. 761 of 2001.
B
Kapil Sibal, Ms. Nitya Ramakrishan, Ms. Neeru Vaid, Ms. Preeti Verma
and Sumit Aggarwal for the Petitionsers/Appellants.
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. These three review petitions have been filed in C
terms of Article 137 of the Constitution of India, 1950 (in short 'the
Constitution'). Though the review applications contain certain references to
the conclusions arrived at the judgment in Criminal Appeal No.761/2001
with death reference No.1/2001, at the time of the hearing it was restricted
to the question whether imposition of death sentence would be proper when
one of the three Hon'ble Judges recorded a finding of acquittal. So far as D
review application No.626/2002 is concerned, same was the plea. In review
application No.627/2002 the plea was that when one Hon'ble Judge held that
life sentence should be proper, death sentence could not be imposed merely
because the two other Hon'ble Judges held so. Though at the outset learned
counsel for the applicants submitted that they were not questioning the E
correctness of the conclusions but reference was made to certain findings
recorded in the appeals and the death references to contend that the conclusions
arrived at by the majority were not in order. However, when it was pointed
out by the learned counsel for the applicants that they had conceded to the
position that their submissions with regard to the review application were
restricted to the question of sentence at the threshold, it was submitted that F
a reference to the conclusions arrived at may be incidental and necessary.
The primary stand of the applicant in the review application as noted
above is that as a matter of practice, this Court never imposed death sentence
when there was an acquittal by the trial court or the High Court. It was also
submitted that since one Hon'ble Judge in each case felt that either life G
sentence should be imposed or acquittal should be there, the judgments should
be reviewed and the matter should be referred to a larger Bench to decide this
issue. Reference was made to the minority view in Bachan Singh v. State of
Punjab, [ 1982] 3 SCC 24 and contended that in view of the irrevocable
nature of the death sentence, in the facts situation as noted above, death H
336 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A sentence cannot be appropriate. Reference was made to several decisions
where this Court had not imposed death sentence because of the acquittal by
the trial court or by the High Court. (e.g. Pandurang and Ors. v. State of
Hyderabad, AIR (1955) SC 216 (para 37), State (Delhi Administration v.
laxman Kumar and Ors., [1985] 4 SCC 476 at (para 49), Smt. Lichhamadevi,
V. State of Rajasthan, [1988] 4 sec 456 (paras 14 and 15) and State of
B Maharashtra v. Bharat Fakira Dhiwar, [2002] 1 sec 622 (para 23). It was
submitted that in case of acquittal by one Hon'ble Judge, it would not come
within the umbrella of the category "rarest of the rare''. It was also submitted
that when there is a difference of view on the Bench even if it be of minority
view, notice should be issued to the respondents for hearing of the review
C application.
Review applications can be filed under Article 13 7 of the Constitution
of India read with Order XL of the Supreme Court Rules, 1966 as amended
(hereinafterreferred to as 'the Rules'). As the Article indicates that this Court
has the power to review any judgment pronounced or order made by it
D subject to the provisions of any law made by Parliament or any rule made
under Article 145 of the Constitution, in exercise of these powers the Rules
have been framed. Rules I and 2 of Order XL of the Rules are relevant and
reproduced as under:
"I. The Court may review its judgment or order, but no application
E for review will be entertained in a civil proceeding except on the
ground mentioned in Order XLVll Rule 1 of the Code, and in a
criminal proceeding except on the ground of an error apparent on the
face of the record.
2. An application for review shall be by a petition, and shall be filed
F within thirty days from the date of the judgment or order sought to
be reviewed. It shall set out clearly the grounds for review."
The scope of review in criminal proceedings was considered by a
Constitution Bench in P.N. Eswara Iyer and Ors. v. Registrar, Supreme
G Court ofIndia, [ 1980] 4 sec 680 and recently in Suthendraraja@ Suthenthira
Raja@ Santhan and Ors. v. State through DSPICBI, SIT, Chennai, [1999]
9 SCC 323- and Ramdeo Chauhan @ Raj Nath v. State of Assam, [200 l] 5
sec 714.
The Constitution Bench in P.N. Eswara lyer's case (supra) observed as
H follows:
DEVENDER PAL SINGH v. STATE N.C.T. OF DELHI [ARIJIT PASAYAT, J] 337
"34. Rule I of Order XL on its face, affords a wider set of A
grounds for review of 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 B
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 C
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 D
summons the Judges to allow a vital material in, it becomes part of
the record; and if apparent error is here, correction becomes
necessitous.
35. The purpose is plain, the language is elastic and interpretation E
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 F
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 I CPC. We see no insuperable difficulty in
equating the area in civil and criminal proceedings when- review power
is invoked from the same source."
G
Though the scope of review in criminal proceedings has been widened
to a considerable extent in view of the aforesaid exposition of law by the
Constitutional Bench, in any case review is not re-hearing of the appeal all
over again, and as was observed in Suthendraraja (supra) in order to maintain
the review petition it has to be shown that there is a miscarriage of justice. H
338 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A Though the expression "miscarriage of justice" is of wider amplitude, it has
to be kept in mind that the scope of interference is very limited. Ordinarily
application for review is disposed of by circulation without any detailed
arguments, unless otherwise ordered by the Court in terms of Rule 3. As
regards the desirability of awarding life sentence when there is diversion of
B views, in Suthendraraja 's case (supra) a similar question was considered.
Here again by majority it was held that the scope for the review of the death
sentence awarded is not there merely because one of the Judges held so. The
position has been succinctly stated by Learned Brother Quadri, J. in the
following words:
C "The ambit of Rule XL(I) of the Supreme Court Rules which
provides grounds for review, as interpreted by this Court in P.N.
Eswara Iyer v. Registrar, Supreme Court of India vis-ii-vis criminal
proceedings, is not confined to "an error apparent on the face of the
record". Even so by the process of interpretation it cannot be stretched
to embrace the premise indicated by my learned brother as a ground
D for review. That apart there are two difficulties in the way. The first
is that the acceptance of the said proposition would result in equating
the opinion of the majority to a ground analogous to "an error apparent
on the face of the record" and secondly in a Bench of three Judges
or of greater strength if a learned Judge is not inclined to confirm the
death sentence imposed on a conviCt, the majority will be precluded
E
from confirming the death sentence as that per se would become
open to review."
Mr. Kapil Sibal, learned senior counsel, appearing for the applicant-
Devender Pal Singh tried to distinguish the aforesaid view on the ground that
F the same related to question of life and death sentences, and not of acquittal
and death sentence. When it was put to him as to the basis for making
reference to a larger Bench, it is submitted that the same was in the background
of Article 21 of the Constitution and after receiving the view of the larger
Bench the review could be disposed of. On a query made as to whether that
would not amount to creation of an appellate forum in respect of a decided
G case, his answer was in the negative. However, he submitted that even if it
so, that would not to be material when the life of a person in the bacl"ground
of Article 21 was involved.
It was pointed out that whenever there is an acquittal by the trial court
H or the High Court, as a matter of practice, death sentence was not imposed.
DEVENDER PAL SINGH v. STATE N.C.T. OF DELHI [ARIJIT PASAYAT. J.] 339
We may point out that there is a difference between a practice even if A
it is accepted to be prevalent, and the application of law. While former is
variable, correct application of law is invariable. A practice may be departed
from for good and compelling reasons, but in that sense application of law
is invariable. We may point out here that in all cases relied upon for the
proposition that death sentence would not be proper a rider was added by the B
Court that it was not of universal application and for good and compelling
reasons departure can be made. We are primarily of the view that while
deciding the question whether a case falls under "rarest of rare category" the
nature of the offence and its impact on the society are determinative factors.
Mere acquittal or lesser sentence imposed does not.really relate to the gravity
of the offence or its impact on the society. If after consideration of the C
materials, the Court comes to finding that it belongs to the "rarest of rare
category", acquittal or sentence of life awarded by trial or High Court should
not be considered to be a mitigating factor. As was observed in Suthendraraja 's
case (supra) the majority will be precluded as a matter of course from death
sentence and that is not the correct position.
D
In a recent case in State of UP. v. Dharmendra Singh and Anr., [1999]
8 SCC 325, the argument was that there was expectation of survival entertained
by the accused after the High Court refused to confirm the death sentence
and there should not be interference with the judgment of the High Cou11 by
substituting death for life sentence. This Court found no legal basis for the E
argument. It was, inter alia, observed that in the judicial system like ours
when there is a hierarchy of courts th~ possibility of reversal of judgments
is inevitable and, therefore, expectation of an accused cannot be a mitigating
factor to interfere in an appeal for enhancement of sentence, if the same is
otherwise called for in law. The Court also noted that in appropriate cases
there is an obligation on the Courts to award sentence of death. Reference F
was made to Ronny@ Ronald James Alwaris and Ors. v. State ofMaharashtra,
[I 998) 3 sec 625, where it was observed:
The obligation of the court in making the choice of death sentence
for the person who is found guilty of murder is onerous indeed. But
by sentencing a person to death, the court is giving effect to the G
command of law which is in public interest whereas in committing
the murder or being privy to commit murder, even if it be a vengeance
for another murder, the convict is violating the law which is against
public interest."
H
340 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A This position was re-iterated in Ramdeo Chauhan's case (supra) in the
following words:
"This Court considered the scope of review and the limitations imposed
on its exercise under Article 137 of the Constitution of India in lily
Thomas v. Union of India, [2000] 6 SCC 224 and held: (SCC pp.
B 247-51, paras 52-56)
52. The dictionary meaning of the word 'review' is 'the act of looking,
offer something again with a view to correction or improvement'. It
cannot be denied that the review is the creation of a statute. This
Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji,
c [ 1971] 3 sec 844 held that the power of review is not an inherent
power. It must be conferred by law either specifically or by necessary
implication. The review is also not an appeal in disguise. It cannot be
denied that justic~ is a virtue which transcends all barriers and the
mies or procedures or technicalities of law cannot stand in the way
of administration of justice. Law has to bend before justice. If the
D
court finds that the error pointed out in the review petition was under
a mistake and the earlier judgment would not have been passed but
. for erroneous assumption which in fact did not exist and its perpetration
shall result in a miscarriage of justice nothing would preclude the
court from rectifying the error. This Court in S. Nagaraj v. State of
E Karnataka, [1993] Supp. 4 SCC 595 held: (SCC pp. 619-20, para
19).
"19. Review literally and even judicially means re-examination
or reconsideration. Basic philosophy inherent in it is the universal
acceptance of human fallibility. Yet in the realm of law the courts
F 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
G
avoid abuse of process or miscarriage of justice. In Raja Prithwi
Chand Lal Choudhury v. Sukhraj Rai, AIR (1941) SC I 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
H Lords. The Court approved the principle laid down by the Privy
DEVENDER PAL SINGH v. STATEN.C.T. OF DELHI (ARIJITPASAYAT, J.J J41
Council in Rajunder Narain Rae v. Bijai Govind Singh, (1836) I A
Moo PC 117 that an order made by the Court was final and could not
be altered:
" ....... nevertheless, if by misprision in embodying the
judgments, errors have been introduced, these courts possess,
by common law, the same power which the courts ofrecord B
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 C
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 D
as under:
"It is impossible to doubt that the indulgence extended
in suc!l 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 E
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 F
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 visualize 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 G
to the conditions subject to which any judgment or order may be
reviewed. In exercise of this power Order 40 had been framed
empowering this Court to review an order in civil proceedings on
grounds analogous to Order 47 Rule I of the Civil Procedure Code.
The expression, 'for any other sufficient reason' in the clause has H
342 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A been gi·ven 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 40 Rule I
of the Supreme CoUii 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
B from recalling or reviewing its own order if it is satisfied that it is
necessary to do so for sake of justice.' The mere fact that two views
on the same subject are possible is no ground to review the earlier
judgment passed by a Bench of the same strength.
53. This Court in Northern India Caterers (India) Pvt. Ltd. v. Lt.
c Governor of Delhi, [ 1980] 2 SCC 167 considered the powers of this
Court under Article 137 of the Constitution read with Order 47 Rule
I CPC and Order 40 Rule I of the su'preme Court Rules and held:
(SCC pp. 171-72, para 8)
·'8. It is well settled that a party is not entitled to seek a review of a
D
judgment delivered by this Court merely for the purpose of a rehearing
and a fresh decision of the case. The nonnal 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
E Rajasthan, [1965] 1SCR933, at p. 948. For instance, ifthe attention
of the Court is not drawn to a material statutory provision during the
original hearing, the Court will review its judgment: Girdhari Lal
Gupta v. D.H. Mehta, [1971] 3 SCR 748, at p. 760. 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.
F Mohindroo v. Dis/I. Judge, Delhi, [ 1971] 2 SCR 11, at p. 27. Power
to review 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
G 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
proceedings, it is beyond dispute that a review proceeding cannot be
equated with the original hearing of the case, and the finality of the
H
DEVENDER PAL SINGH v. STATE N.C.T. OF DELHI [ARIJIT PASAYAT, J.) 343
judgment delivered by the Court will not be reconsidered except A
"where a glaring omission or patent mistake or like grave error has
crept in earlier by judicial fallibility": Sow Chandra Kante v. Sk.
Habib.' [1975] 1 sec 674.
54. Article 137 empowers this Court to review its judgments subject
to the provisions of any law made by Parliament or any rules made B
under Article 145 of the Constitution. The Supreme Court Rules made
in exercise of the powers under Article 145 of the Constitution
prescribe that in civil cases, review lies on any of the grounds specified
in Order 4 7 Rule I of the Code of Civil Procedure which provides:
'I. Application for review of judgment - (I) Any person C
considering himself aggrieved -
(a) by a decree or order from· which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, D
or ( c) by a decision on a reference from a Court of
Small Causes,
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 E
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
judgment to the court which passed the decree or made the order.'
F
Under Order 40 Rule I of the Supreme Court Rules no review lies
except on the ground of error apparent on the face of the record in
criminal cases. Order 40 Rule 5 of the Supreme Court Rules provides
that after an application for review has been disposed of no further
applicalion shall be entertained in the same matter.
G
55. In A.R. A11tulay v. R.S. Nayak, [1988] 2 SCC 602 this Court held
that the principle of English law that the size of the Bench did not
matter has not been accepted in this country. In this country there is
a hierarchy within the Court itself where larger Benches overrule
smaller Benches. This practice followed by the Court was declared to
H
344 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A have been crystallized as a rule of law. Reference in that behalf was
made to the judgments in Javed Ahmed Abdul Hamid Pawala v. State
of Maharashtra, [1985] I SCC 275, State of Orissa v. Titaghur Paper
Mills Co. Ltd., [1985] Supp SCC 280, Union of India v. Godfrey
Philips India Ltd., [1985] 4 SCC 369. In that case the Bench
comprising seven Judges was called upon to decide as to whether the
B directions given by the Bench of this Court comprising five Judges
in the case of R.S Nayak v. A.R. Antulay, [1984] 2 SCC 183 were
legally proper or not and whether the action and the trial proceedings
pursuant to those directions were legal and valid. In that behalf
reference was made to the hierarchy of Benches and practice prevalent
C in the country. It was observed that Court was not debarred from
reopening the question of giving proper directions and correcting the
error in appeal if the direction issued in the earlier case on 16.2.1984
were found to be violative of limits of jurisdiction and that those
directions had resulted in deprivation offundamental rights of a citizen
granted by Articles 14 and 2 I of the Constitution of India. The Court
D referred to its earlier judgments in Prem Chand Garg v. Excise
Commissioner UP., [1963] Supp I SCR 885, Naresh Shridhar
Mirajkar v. State of Maharashtra, [1966] 3 SCR 744 and Ujjam Bai
v. State of UP. and [I 963] I SCR 778 concluded that the citizens
should not suffer on account of directions of the Court based upon
error leading to conferment of jurisdiction. The directions issued by
E
the Cou1t were found on facts to be violative of the limits of jurisdiction
resulting in the deprivation of the fundamental rights guaranteed to
the appellant therein. It was further found that the impugned directions
had been issued without observing the principle of audi alteram
partem.
F
56. It follows, therefore, that the power of review can be exercised
for correction of a mistake and not to substitute a view. Such powers
can be exercised within the limits of the statute dealing with the
exercise of power. The review cannot be treated like an appeal in
disguise. The mere possibility of two views on the subject is not a
G ground for review. Once a review petition is dismissed no further
petition of review can be entertained. The rule of law of following
the practice of the binding nature of the larger Benches and not
taking different views by the Benches of coordinated jurisdiction of
equal strength has to be followed and practised. However, this Court
in exercise of its powers under Article 136 or Article 32 of the
H
DEVENDER PAL SINGH v. STATE N.C.T. OF DELHI [ARIJIT PASAYAT, J.] 345
Constitution and upon satisfaction that the earlier judgments have ·A
resulted in deprivation of fundamental rights of a citizen or rights
created under any other statute, can take a different view
notwithstanding the earlier judgment.
As was observed by this Court in Col. AVtar Singh Sekhon v. Union of
India and Ors., AIR (1980) SC 2041, review is not a routine procedure. A B
review of earlier order is not permissible unless the Court is satisfied that
material error, manifest on the face of the order undermines its soundness or
results in miscarriage of justice. A review of judgment in a case 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 C
fallibility ..... The stage of review is not a virgin ground but review of an
earlier order which has the normal feature of finality.
As was observed by this Court in Mis. Northern India Caterers (India)
Ltd 's case (supra), whatever nature of the proceeding it is beyond dispute
that review proceeding cannot be equated with the original hearing of the D
case and the finality of the judgment delivered by the Court will not be re-
considered except where glaring omission or patent mistake or like error has
crept in earlier.
A judgment of the final Court of the country is final, and a review of
such judgment is an exception. E
In our opinion compelling reasons for review are non-existent in these
cases and acceptance of the prayer for reference to a larger Bench would be
. the creation of a new forum. It may be pointed out that while laying the
norms for a curative petition a Constitution Bench of this Court in Rupa
Ashok Hurra V. Ashok Hurra and Anr., [2002] 4 sec 388 has observed: F
"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 th is Court is the law of the
land; it is precedent for itself and for all the courts/tribunals and G
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 H
346 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A mainly concerned with the latter. However, when reconsideration of
a judgment of this Court is sought, the finaluy at'.ached 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 v. London County
B Council, (1898 Appeal Cases 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 Hoystead v. Commissioner of Taxation, (1926) AC 155 at
c 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 shoulrl be a proper
apprehension by the court of the legal result... .. lf this were
D 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 Lall Choudhary 's case (supra) placing
reliance on dicta of the privy council in Venkata Narasimha Appa
E Row v. Court of Wards, (1886) II Appeal Cases 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
F 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. (It concerns the state that
G there be an end of law-suits. It is in the interest of the State that
there should be an end of law-suits.) 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
H
DEVENDER PAL SINGH v. STATEN.C.T. OF DELHI [ARIJIT PASAYAI, J.] 347
as this." A
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 Article 141 of the Constitution. Sahai, J. speaking for himself and B
for Pandian, J. observed:
"Justice is a virtue which transcends all barriers. Neither
the ru !es 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 C
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
Choudhary's case (supra) further observed:
D
"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."
28. The position with regard to conclusive nature of the precedent E
obtained in England till the following practice statement was made
by Lord Gardiner, L.C. in Lloyds Bank, Ltd. v. Dawson and Ors.,
(1966) 3 All E.R. 68, at p.77 on behalf of himself and the Lords of
Appeal in Ordinary,
"They propose therefore to modify their present practice F
and, while treating former decisions of this House as normally
binding, to depart from a previous decision when it appears right
to do so."
The parameters for filing curative petition are indicated in the said
judgment; and even the writ petitions do not fulfill these parameters. It is G
relevant to note that a petition was filed under Article 32 of the Constitution
(V. Mohini Giri v. Union of India, (W.P. (Crl.) 96/2002) wherein prayer was
made to issue guidelines as to what would be the approach where one of the
Hon'ble Judges acquits while others confirm death sentence. The petition
was dismissed on 16.8.2002 with the follow,ing order: H
348 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A "This petition has been filed for issuance of a guideline as to
what should be the appropriate approach in the case where one of the
Judges in the Bench of this Court while hearing an appeal against
death sentence, acquits the accused person. We do not think that the
judicial discretion of the Bench hearing the appeal can be curtailed
in any manner by issuing guidelines. This petition is dismissed
B accordingly."
Further as noted above, in the cases cited to show that life sentence was
imposed in case of acquittal by trial/High Court, for compelling reasons
departure can be made. In the case at hand, one related to TADA Act, and
C the two others related to killings on caste grounds.
The approach necessary in such cases was highlighted while confirming
death sentence. Further, the remedy available (on the logic of Ramdeo
Chauhan) because of difference in view was also highlighted.
D Submission of Mr. Sibal that the logic does not apply to a case of
acquittal is clearly fallacious.
The review petitions are without any merit and deserve dismissal, which
is so directed.
E SHAH, J. I am in respectful agreement with the reasons recorded by
learned brother Pasaya!, J. in arriving at the conclusion that the review petitions
are required to be dismissed. Sti II however, I record my dissent with regard
to sentence aspect.
R.P. (Cr/.) No.497 of 2002 In W.P. (Cr/.) No.993 of 2001.
F
In this case, it is to be stated that I had arrived at the conclusion that
the prosecution case depends solely upon the confessional statement. The
reasons recorded therein for acquitting him are not required to be reiterated.
However, considering the majority view also, in my opinion, if death sentence
G is altered to imprisonment for life, it would be sufficient to meet the ends of
justice.
R.P. (Cr/.) Nos. 626 and 627 of 2002 In Cr/. A. No. 761 of 2001.
In this case, it is to be stated that appeal of the main accused Bihari
H Manjhi and others was allowed and were acquitted on the basis that there was
DEVENDER PAL SINGH v. STATEN.C.T. OF DELHI [SHAH, J.) 349
no other evidence except the so-called confessional statement which was A
totally unreliable and faulty investigation. This is also a fit case for altering
the death sentence and imposing sentence of imprisonment for life.
For this purpose, I would rely upon the dissent noted by Thomas, J. in
Suthendraraja alias Suthenthira Raja alias Santhan and Ors. v. State, [1999]
9 sec 323 which is reproduced hereunder: B
"17. The Constitution Bench in Bachan Singh v. State of Punjab,
[ 1980] 2 sec 684 has narrowed down the scope for awarding death
sentence to the extremely restricted radius of "rarest of rare cases" in
which the alternative lesser sentence of imprisonment for life is C
unquestionably foreclosed. In the main judgment in the present case
one of the three Judges found that sentence of imprisonme_nt for life
would be sufficient to meet the ends of justice as far A-1 Nalini.
18. In a case where a Bench of three Judges delivered judgment
in which the opinion of at least one Judge is in favour of preferring D
imprisonment for life to death penalty as for any particular accused,
I think it would be a proper premise for the Bench to review the order
of sentence of death in respect of that accused. Such an approach is
consistent with Article 21 of the Constitution as it helps saving a
human life from the gallows and at the same time putting the guilty E
accused behind the bars for life. In my opinion, it would be a sound
proposition to make a precedent that when one of the three Judges
refrains from awarding death penalty to an accused on stated reasons
in preference to the sentence of life imprisonment that fact can be
regarded sufficient to treat the case as not falling within the narrowed
ambit of "rarest of rare cases" when the alternative option is F
unquestionably foreclosed".
In the result, in my opinion, Review Petition (Crl.) No.497 of 2002
filed by Devender Pal Singh in Crl. Appeal No.993 of 2001; Review Petition
(Crl.) No.626 of2002 filed by Dharrnendra Singh@ Dharu Singh in Criminal G
Appeal .No.761 of 2001 and Review Petition (Crl.) No.627 of 2002 filed by
Krishna Mochi and others in Criminal Appeal No.761 of 2002, be partly
allowed and their sentence be altered to imprisonment for life.
K.K.T. Petitions dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "review petition"Sign in to search