Dismissal of miscellaneous application seeking recall/ modification of judgment does not extinguish right to file review petition: Supreme Court

Dismissal of an application for recall of a judgment does not take away the right to file review petition against the judgment, the Supreme Court ruled on Thursday (Rajendra Khare v. Swaati Nirkhi)..Review is a proceeding, which exists by virtue of the Statute, the Court underscored, and rejection of a miscellaneous application (MA) for recall of judgment will not take away the right of the review petitioner to file review under Order XLVII Rule 1 of the Supreme Court Rules of 2013..“The MA, which was rejected, was not an application to review under Article 137 as well as Order XLVII Rule 1, thus, by rejection of MA, it cannot be said that review petition filed by the review petitioner is not maintainable,” the Court ruled..The judgment was delivered by a Bench of Justices Ashok Bhushan and Indu Malhotra in a review petition filed against an order passed in a transfer petition..The review petitioner was the complainant who lodged a First Information Report in 2016 at Mangol Puri Police Station, Delhi against respondents with respect to offence under Section 389 (Putting person in fear of accusation of offence, in order to commit extortion) of Indian Penal Code.The Metropolitan Magistrate, North-West Delhi took cognizance of the offence and issued summons to all the accused.The accused later filed a transfer petition before the Supreme Court seeking transfer of trial to Allahabad, Uttar Pradesh..The Supreme Court, on May 18, 2018 allowed the transfer plea and ordered that trial be transferred from Rohini Courts, New Delhi to the Court of Metropolitan Magistrate at Allahabad, Uttar Pradesh.The review petition was not a party to the same and the order was passe ex-parte. The review petitioner then filed a miscellaneous application seeking recall of that order on the ground that he was not heard but the same was dismissed on June 5, 2018 leading to the present review petition..Rajendra Khare, appearing in-person, contended that the petitioner, who was the informant with respect to the FIR, was not made a party to the transfer petition under Section 406 of the Code of Criminal ProcedureHe contended that as per Order XXXIX of the Supreme Court Rules, 2013, after preliminary hearing of the transfer petition, notice is required to be issued, which was not done in the present transfer petition and on the first day of hearing the transfer petition was allowed. The miscellaneous application was also summarily dismissed without giving an opportunity of hearing to the review petitioner to file a counter affidavit. Thus, it was his argument that the orders passed by the Supreme Court allowing the transfer petition and dismissing the miscellaneous application were in violation of the principles of natural justice..On the other hand, advocate Rahul Shyam Bhandari representing the respondents, submitted that no ground is made to review the order of the Supreme Court in the transfer petition since all grounds raised in the review petition were already taken in the miscellaneous application which the Court had dismissed. Hence, the review petition is not maintainable, he submitted.It was also pointed out by Bhandari that the petitioner was initially made a party to the transfer plea but was later deleted after the Supreme Court Registry raised objections..The Supreme Court examined Article 137 of the Constitution and Order XLVII of the Supreme Court Rules which deal with review.“Review in a criminal proceeding is permissible on the ground of error apparent on face of record,” the Court said..It went on to note that the submission by the respondents was that in view of the fact that miscellaneous application was rejected by the Court, the review petition is not maintainable..“The MA 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. By mere rejection of MA filed by the review petitioner, the review petitioner cannot be precluded from filing the present review petition,” the Court said..It, therefore, ruled that the review petition was maintainable. On the merits of the petition, the Court ruled that the petitioner should have been heard before any order was passed in the transfer petition.Thus, the review was allowed and the Court ordered that transfer petition be revived and heard again after making the petitioner a party..[Read Judgment]