RAJENDRA KHAREversusSWAATI NIRKHI AND ORS.

460                       [2021]
               SUPREME COURT     1 S.C.R. 460
                              REPORTS                      [2021] 1 S.C.R.


A                            RAJENDRA KHARE
                                       v.
                          SWAATI NIRKHI AND ORS.
                    (Review Petition (Crl.) No. 671 of 2018)
B                                      In
                    (Transfer Petition (Crl) No. 262 of 2018)
                              JANUARY 28, 2021
           [ASHOK BHUSHAN AND INDU MALHOTRA, JJ.]
C
            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
D     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
E     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
F     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
G     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

H
                                      460
      RAJENDRA KHARE v. SWAATI NIRKHI AND ORS.                          461


Article 137 is the universal acceptance of human fallibility. [Para     A
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                 B
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              C
      – 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         D
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         E
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        F
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
                                                                        G
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

                                                                        H
462            SUPREME COURT REPORTS                      [2021] 1 S.C.R.


A     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.
B            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
C     day of 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 liberty was granted
      by this Court on 18.05.2018 that order being ex-parte, it will be
      open to respondents to approach this Court, if aggrieved. In the
      transfer petition, review petitioner was not one of the respondents,
D     hence, it cannot be said that liberty was exhausted by filing M.A.
      by review petitioner. The review petitioner has right to exercise
      statutory jurisdiction of filing application for review of the
      judgment. [Paras 17 and 18][472-A-B, F-H]
            M.S. Ahlawat vs. State of Haryna and Anr., (2000) 1
E           SCC 278 : [1999] 4 Suppl. SCR 160 – relied on.
            2.2 Having found that there was error apparent in the order
      dated 18.05.2018, the said order has to be corrected. Thus, the
      review petition is allowed and the order dated 18.05.2018 is
      recalled. Consequently the Transfer Petition (Crl.) No.262 of 2018
F     is revived. The review petitioner is impleaded as respondent
      No.4 in the transfer petition. [Para 20][473-E-F]
                            Case Law Reference
      [2017] 8 SCR 177               relied on               Para 11
G     [2018] 7 SCR 898               referred to             Para 12
      [2000] 2 Suppl. SCR 496        relied on               Para 14
      [1999] 4 Suppl. SCR 160        relied on              Para 19


H
      RAJENDRA KHARE v. SWAATI NIRKHI AND ORS.                              463


      CRIMINAL APPELLATE JURISDICTION : Review Petition                     A
(Criminal) No. 671 of 2018 in Transfer Petition (Crl.) No.262 of 2018.
      From the Judgment and Order dated 18.05.2018 of this Hon’ble
Court in T.P.(Crl.) No.262/2018.
      With
                                                                            B
      Contempt Petition (C) No.1233/2019 in T.P.(Crl.) No.262/2018.
      Petitioner-in-person.
       Ms. Madhvi Divan, ASG, B. V. Balaram Das, Ayush Puri, Pranay
Ranjan, Rahul Shyam Bhandari, Konark Tyagi, Kaustubh Shukla, Advs.
for the respondents.                                                        C
      The Judgment of the Court was delivered by
      ASHOK BHUSHAN, J.
      1. This review petition has been filed praying that the Order dated
18.05.2018 passed in Transfer Petition (Crl.) No. 262 of 2018 and the       D
Order dated 05.06.2018 dismissing the M.A. be reviewed.
      2. Brief facts of the case giving rise to this review petition now
need to be noted:-
      2.1 The review petitioner lodged the First Information Report
      No.39/2016 in Police Station, Mangol Puri, Delhi under Section        E
      389/34 Indian Penal Code, in which respondent Nos.1 to 5 to this
      review petition were made accused. The Invesigating Officer after
      completing investigation submitted a charge sheet against all the
      accused.
      2.2 The learned Metropolitan Magistrate, North-West Delhi took        F
      cognizance of the offence and issued summons to all the accused
      for appearance on 02.03.2018. On 05.03.2018, the accused did
      not appear, the Court observed that despite service of summon all
      accused are absent, hence, issue fresh summons all the accused
      for 02.05.2018. On 02.05.2018, applications were filed for            G
      exemption from personal appearance by accused persons. The
      learned Magistrate allowed the application subject to filing of
      original medical certificates.
      2.3 The respondent Nos.1 to 3 and 5 filed transfer petition on
      08.05.2018 being Transfer Petition (Crl.) No.262/2018 under
                                                                            H
464        SUPREME COURT REPORTS                         [2021] 1 S.C.R.


A     Section 406 of Cr.P.C. seeking transfer of trial of Criminal Case
      No.3483 of 2017. In the transfer petition, following were the three
      respondents, who were impleaded:-
      1.      State (NCT of Delhi)
              Through the Commissioner of Police,
B
              I.P. Estate, New Delhi -110012.
      2.      Mohan Srivastava alias
              Akahauri Onkar Nath,
              S/o Late Sh Akhauri Bholanath,
C
              Resident of Near Bairagi Harijan Temple, P.S. Delha,
              District Gaya (Bihar) 823001.
      3.      Jugal Kishore Yadav,
D             S/o Sh Puna Prasad Yadav
              R/o 13/137, Sector -16, Rohini,
              Delhi – 110 089.
      2.4 Transfer petition was taken by this Court and following order
      was passed on 18.05.2018:-
E
           “Heard learned counsel for the petitioner.
           Without expressing any opinion on merits, we direct that
           proceedings in Crl. Case No.0003483 of 2017 titled “State Vs.
           Swati Nirkhi & Ors.” on the file of Metropolitan Magistrate
F          461 North West, Rohini Courts, New Delhi shall stand
           transferred to the Court of Metropolitan Magistrate at
           Allahabad, Uttar Pradesh, for hearing and disposal in
           accordance with law. Records shall be sent to the transferee
           Court forthwith. It will be open to the parties to seek clubbing
           of all the matters, if any, pending between them in accordance
G          with law.
           The Registry to transmit a copy of this order to the courts
           concerned. Parties to appear before the transferee court on
           Monday, 9th, July, 2018.

H
      RAJENDRA KHARE v. SWAATI NIRKHI AND ORS.                                465
                [ASHOK BHUSHAN, J.]

          The transfer petition is, accordingly, allowed with the above       A
          direction.
          Since this order being passed ex- parte, it will be open to the
          respondents to approach this Court, if aggrieved.”
      2.5 The review petitioner, who had filed the F.I.R. No.39/2016
      was not made one of the respondents in the transfer petition. The       B
      review petitioner after order dated 18.05.2018 filed M.A.No.1589
      of 2018 praying for recall of the Order dated 18.05.2018 passed
      by this Court in Transfer Petition (Crl.) No.262 of 2018. This
      Court dismissed the M.A. by passing following order:-
          “No further order is called for. M.A. is, accordingly,              C
          dismissed.”
      2.6 After rejection of the M.A. No.1589 of 2018, the review
      petitioner has filed this Review Petition (Crl.) No. 671 of 2018
      praying for review of orders dated 18.05.2018 and 05.06.2018. In
      this review petition, order was passed on 24.10.2018 allowing the       D
      application for open court hearing and notice was issued by this
      Court. This Court passed following order on 24.10.2018:-
          “Application for Open Court hearing is allowed. Delay
          condoned. Issue notice.”
                                                                              E
      2.7 After issuance of notice, reply has been filed to the review
      petition by respondent Nos. 1 to 3 as well as by respondent No.5
      – Jugal Kishore Yadav. A short affidavit on behalf of respondent
      No. 3 dated 11.01.2021 as well as an affidavit on behalf of review
      petitioner dated 19.01.2021 has also been filed.
      3. We have heard Shri Rajendra Khare, the review petitioner             F
appearing-in-person. Shri Rahul Shyam Bhandari, learned counsel has
appeared for respondent Nos.1, 2 and 3 and Shri Kaustubh Shukla,
learned counsel has appeared for respondent No.5.
       4. The petitioner appearing-in-person submits that review
petitioner, who was informant of the First Information Report was not         G
made party to the transfer petition filed under Section 406 Cr.P.C. He
submits that the review petitioner was not impleaded in the transfer
petition so as to deny him the right to oppose the transfer petition. It is
submitted that the review petition was taken by this Court on 18.05.2018
                                                                              H
466             SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     for preliminary hearing and without issuing any notice review petition
      was allowed. It is submitted that as per Order XXXIX of the Supreme
      Court Rules, 2013, afterpreliminary hearing of the transfer petition, notice
      is required to be issued, which notice has not been issued in the present
      transfer petition and on the first day of hearing the transfer petition was
      allowed. The Miscellaneous Application was also summarily dismissed
B
      without giving an opportunity of hearing to the review petitioner to file a
      counter affidavit. The orders passed by this Court dated 18.05.2018 as
      well as 05.06.2018 were passed violating the principles of natural justice.
      It is further submitted that there were no good grounds to transfer the
      Criminal Case pending in the Rohini Court. It is submitted that out of 24
C     witnesses, which are cited, 21 witnesses belong to Delhi and transfer of
      criminal trial will cause immense prejudice. It is further submitted that
      even after order of this Court dated 18.05.2018 in which this Court
      directed parties to appear before the transferee court on 09.07.2018, the
      respondents did not appear before the Court. Review petitioner submits
      that there is an error apparent on the face of the record in the judgment
D
      dated 18.05.2018, which deserves to be reviewed by this Court and the
      transfer petition be heard on merits after giving an opportunity to review
      petitioner also.
             5. Shri Rahul Shyam Bhandari, learned counsel appearing for
      respondent Nos. 1 to 3 contends that no ground have been made out to
E     review the judgment dated 18.05.2018. Referring to reply filed on behalf
      of respondent Nos.1 to 3, learned counsel submits that in fact in the
      Registry when the transfer petition was submitted, the review petitioner
      was impleaded as respondent No.2 but on objection raised by the Registry,
      the name of respondent No.2 was deleted from the transfer petition and
F     there was no attempt on part of transfer petitioners not to implead the
      review petitioner as one of the respondents. It was only due to objection
      by Registry the name of respondent No.2 was deleted. It is further
      submitted that this Court in its order dated 18.05.2018 had granted liberty
      to file an application since the order was being passed ex-parte and
      review petitioner has exhausted his liberty by filing M.A. No.1589 of
G     2018, which was rejected on 05.06.2018. It is submitted that all grounds,
      which are now sought to be raised in the review petition were already
      taken in the M.A. No.1589 of 2018. This Court having rejected the
      M.A., there is no occasion to consider the review petition and the review
      petitionbeing not maintainable deserves to be rejected.
H
       RAJENDRA KHARE v. SWAATI NIRKHI AND ORS.                                   467
                 [ASHOK BHUSHAN, J.]

       6. Learned counsel for the respondent No.5 opposing the review             A
petition has also made similar submissions as raised by learned counsel
for the respondent Nos. 1 to 3.
      7. We have considered the submissions of the parties and have
perused the records.
         8. There is no dispute that the criminal case which has been sought      B
to be transferred in T.P. (Crl.) No.262 of 2018 was criminal case, which
was registered on First Information Report filed by review petitioner in
which FIR after investigation charge sheet has been filed and accused
were summoned. It is also a fact that in the Transfer Petition (Crl.)
No.262 of 2018, the review petitioner was not a party. The learned counsel        C
for the respondent Nos. 1 to 3 has stated in his reply affidavit that initially
when petition was filed in the Registry, review petitioner was respondent
No.2 but on objection raised by the Registry, the name of respondent
No.2 was deleted from the transfer petition. We have no reason to doubt
the above statement on behalf of the counsel for the respondent Nos.1
to 3, but the fact remains that Order dated 18.05.2018 was passed in the          D
transfer petition where the review petitioner was not a partyrespondent.
It is also not disputed that M.A. No.1589 of 2018 filed by review petitioner
came to be dismissed by order as noted above.
       9. The review petition, which has been filed by the review petitioner
to review the judgment is referable to Article 137 of the Constitution            E
read with Order XLVII of Supreme Court Rules, 2013. Article 137 of
the Constitution provides 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               F
       have power to review any judgment pronounced or order made
       by it.”
      10. The Rules have been framed under Article 145 of the
Constitution namely “The Supreme Court Rules, 2013” in which Order
XLVII deals with the review. Order XLVII Rule 1 provides:-                        G
                             “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 1 of the Code, and in a
                                                                                  H
468            SUPREME COURT REPORTS                            [2021] 1 S.C.R.


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 firstapplication
            for review and is based on the grounds admissible under the Rules.
B                            XXXXXXXXXXXXXXXXXX”
             11. The jurisdiction of this Court to review is, thus, specifically
      provided in the Constitution as well as Rules framed under Article 145.
      This Court while considering the review jurisdiction of Supreme Court
      has noted and considered the scope and ambit of the review jurisdiction
C     in Vikram Singh alias Vicky Walia and Anr. Vs. State of Punjab and
      Anr., (2017) 8 SCC 518 in paragraph 23 of which judgment following
      was laid down:-
            “23. In view of the above, it is clear that scope, ambit and
            parameters of review jurisdiction are well defined. Normally in a
D           criminal proceeding, review applications cannot be entertained
            except on the ground of error apparent on the face of the record.
            Further, the power given to this Court under Article 137 is wider
            and in an appropriate case can be exercised to mitigate a manifest
            injustice. By review application an applicant cannot be allowed to
E           reargue the appeal on the grounds which were urged at the time
            of the hearing of the criminal appeal. Even if the applicant succeeds
            in establishing that there may be another view possible on the
            conviction or sentence of the accused that is not a sufficient ground
            for review. This Court shall exercise its jurisdiction to review only
            when a glaring omission or patent mistake has crept in the earlier
F           decision due to judicial fallibility. There has to be an error apparent
            on the face of the record leading to miscarriage of justice to
            exercise the review jurisdiction under Article 137 read with Order
            40 Rule 1. There has to be amaterial error manifest on the face of
            the record with results in the miscarriage of justice.”
G           12. Learned counsel for the respondent Nos. 1 to 3 has also relied
      on a Three-Judge Bench judgment of this Court in Mukesh Vs. State
      (NCT of Delhi), (2018) 8 SCC 149 where this Court has also
      elaborately considered the scope and ambit of the review jurisdiction of
      this Court. In paragraphs 5, 6 and 7, following was laid down by this
      Court:-
H
RAJENDRA KHARE v. SWAATI NIRKHI AND ORS.                                    469
          [ASHOK BHUSHAN, J.]

“5. The power of review of the Supreme Court as envisaged                   A
under Article 137 of the Constitution is no doubt wider than review
jurisdiction conferred by other statutes on the Court. Article 137
empowers the Supreme Court to review any judgment pronounced
or made, subject, of course, to the provisions of any law made by
Parliament or any rule made under Article 145 of the Constitution.
                                                                            B
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
Rule 1 of the Supreme Court Rules, 2013 framed under Article
145 of the Constitution of India. This Court in Sow Chandra Kante
v. Sk. Habib [(1975) 1 SCC 674] speaking through V.R. Krishna               C
Iyer, J. on review has stated the following in para 1: (SCC p. 675)
   “1. … A review of a judgment is aserious 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        D
   and overruled arguments, a second trip over ineffectually
   covered ground or minor mistakes of inconsequential import
   are obviously insufficient.”
7. As per rule, review in a criminal proceeding is permissible only
on the ground of error apparent on the face of the record. This             E
Court in P.N. Eswara Iyer v. Supreme Court of India [(1980) 4
SCC 680] while examining the review jurisdiction of this Court
vis-à-vis criminal and civil proceedings had made the following
observations in paras 34 and 35: (SCC p. 695)
   “34. The rule [ Order XL Rule 1] , on its face, affords a wider          F
   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.   G
   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
   anaccused 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        H
470             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A               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”
B
                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 necessitous.
C               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 XL Rule 2) must,
D               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
E               no insuperable difficulty in equating the area in civil and criminal
                proceedings when review power is invoked from the same
                source.”
                                                           (emphasis in original)”

F            13. The ratio of the above judgments is that review in a criminal
      proceeding is permissible only on the ground of error apparent on face
      of record. The submission which is pressed by the learned counsel for
      the respondent Nos.1 to 3 is that in view of the fact that M.A. No.1589
      of 2018 was rejected by this Court, the review petition is not maintainable.
      The M.A., which was rejected, was an application to recall the judgment.
G     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, thus, by rejection of
      M.A., it cannot be said that review petition filed by the review petitioner
H     is not maintainable.
       RAJENDRA KHARE v. SWAATI NIRKHI AND ORS.                                   471
                 [ASHOK BHUSHAN, J.]

       14. The M.A. which was filed by the review petitioner and was              A
rejected by this Court on 05.06.2018 by order “No further order is called
for” can in no manner take away the right of the review petitioner to file
review under Order XLVII Rule 1 of the Supreme Court Rules, 2013.
This Court with regard to filing of applications styled as application for
clarification, modification or recall of the judgment has observed that in
                                                                                  B
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. This Court in
Delhi Administration vs. Gurdip Singh Uban and Ors., (2000) 7
SCC 296, in paragraph 18 made the following observation:
      “18. We, therefore, agree with the learned Solicitor General that           C
      the Court should not permit hearing of such an application for
      “clarification”, “modification” or “recall” if the application is in
      substance one for review. In that event, the Court could either
      reject the application straight away with or without costs or permit
      withdrawal with leave to file a review application to be listed initially   D
      in chambers.”
       15. We, thus, are of the considered opinion that by mere rejection
of M.A. filed by the review petitioner, the review petitioner cannot be
precluded from filing the present review petition. Review petition is,
thus, fully maintainable and the argument of the respondent that review           E
petition is not maintainable cannot be considered. Further submission of
the counsel for the respondent 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                F
statutory proceedings cannot be considered on the specious plea raised
by the respondents.
       16. 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         G
provided under Article 137 as noted above. The basic philosophy inherent
in granting the power to the Supreme Court to review its judgment under
Article 137 is the universal acceptance of human fallibility.

                                                                                  H
472            SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A            17. 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, which is to the
      following effect:-
B                                 “Order XXXIX
            Applications For Transfer of Criminal Proceeding Under
            Section 406 of The Criminal Procedure Code, 1973 And
            Section 11 of The Terrorist Affected Areas (Special Courts)
            Act, 1984
C                           XXXXXXXXXXXXXXXXX
            2. The petition shall be posted before the Court for preliminary
            hearing and orders as to issue of notice. Upon the hearing the
            Court, if satisfied that no prima facie case for transfer has been
            made out or that the petition is otherwise not tenable, shall dismiss
D           the petition; and if upon such hearing the Court is satisfied that a
            prima facie case for granting the petition is made out, it shall direct
            that notice be issued to the respondent to show cause why the
            order sought for should not be made; such notice shall be given to
            the accused person where he is not the applicant, to the respondent
E           State and to such other parties interested as the Court may think
            fit to direct.
                           XXXXXXXXXXXXXXXXX”
             18. The order having been passed on the first day of hearing
      without issuing notice under Order XXXIX Rule 2, review petitioner is
F     right in his submission that there is an error apparent on the face of the
      record. It is also relevant to notice that the learned counsel for the
      respondent has also submitted that since by the last line of the order
      liberty was granted to the respondent to approach the Court, and M.A.
      was rejected accordingly on 05.06.2018; the review petition has also to
      meet the same fate. The liberty was granted by this Court on 18.05.2018
G
      that order being ex-parte, it will be open to respondents to approach this
      Court, if aggrieved. In the transfer petition, review petitioner was not
      one of the respondents, hence, it cannot be said that liberty was exhausted
      by filing M.A. by review petitioner. The review petitioner has right to
      exercise statutory jurisdiction of filing application for review of the
H     judgment.
       RAJENDRA KHARE v. SWAATI NIRKHI AND ORS.                                   473
                 [ASHOK BHUSHAN, J.]

       19. We may in this context refer to the judgment of this Court in          A
M.S. Ahlawat Vs. State of Haryna and Anr., (2000) 1 SCC 278. In
the above case, this Court convicted the petitioner under Section 193
Indian Penal Code. This Court recalled and set aside the said order after
noticing that the procedure which was required to be followed for
conviction was not followed. In paragraphs 3 and 4 of the judgment, the
                                                                                  B
submissions were noticed, and this Court after coming to the conclusion
that error was committed by not following the procedure, set aside the
order convicting the petitioner. Inparagraphs 12 and 15 following was
laid down:-
       “12. This Court has always adopted this procedure whenever it
       is noticed that proceedings before it have been tampered with by           C
       production of forged or false documents or any statement has
       been found to be false. We have not been able to appreciate as to
       why this procedure was given a go-by in the present case. Maybe
       the provisions of Sections 195 and 340 CrPC were not brought to
       the notice of the learned Division Bench.                                  D
       15. To perpetuate an error is no virtue but to correct it is a
       compulsion of judicial conscience. We, therefore, unhesitatingly
       set aside the conviction of the petitioner for the offence under
       Section 193 IPC.…………………”
       20. We having found that there was error apparent in the order             E
dated 18.05.2018, the said order has to be corrected. We, thus, allow the
review petition, and recall the order dated 18.05.2018; consequently the
Transfer Petition (Crl.) No.262 of 2018 is revived. The review petitioner
is impleaded as respondent No.4 in the transfer petition. One week’s
time is allowed to respondent No.4 and other respondents to file counter          F
affidavit to the transfer petition and one week for filing rejoinder, if any.
       21. List the transfer petition on 12.02.2021 for hearing.
       22. The contempt petition stands closed.

Kalpana K. Tripathy                                    Review Petition allowed.   G




                                                                                  H