Supreme Court Revives Transfer Petition, Cites Error in Initial Order: Rajendra Khare vs. Swaati Nirkhi and Ors. (28 January 2021)

Date of the Judgment: 28 January 2021
Citation: (2021) INSC 23
Judges: Ashok Bhushan, J. and Indu Malhotra, J.
Can an order of the Supreme Court be reviewed if a party was not heard? The Supreme Court of India, in this case, addressed this crucial question regarding the principles of natural justice. The Court reviewed its previous order, which had transferred a criminal case, because the original complainant was not made a party to the transfer petition and was not heard. The bench comprised of Justice Ashok Bhushan and Justice Indu Malhotra, with Justice Ashok Bhushan authoring the judgment.

Case Background

The case originated from a First Information Report (FIR) No. 39/2016, lodged by the review petitioner, Rajendra Khare, at the Mangol Puri Police Station in Delhi. The FIR was filed under Section 389/34 of the Indian Penal Code, naming Swaati Nirkhi and others as accused. After investigation, a charge sheet was filed against the accused. The Metropolitan Magistrate, North-West Delhi, took cognizance of the offense and issued summons for the accused to appear on 02.03.2018. The accused did not appear, and fresh summons were issued for 02.05.2018. On 02.05.2018, the accused sought exemptions from personal appearance, which were granted subject to filing original medical certificates.

Subsequently, the accused (respondent Nos. 1 to 3 and 5) filed a transfer petition on 08.05.2018, seeking the transfer of the criminal case to Allahabad, Uttar Pradesh. The transfer petition was filed under Section 406 of the Code of Criminal Procedure (Cr.P.C.). The original complainant, Rajendra Khare, was not made a party to this transfer petition.

Timeline:

Course of Proceedings

The Supreme Court, on 18.05.2018, ordered the transfer of the criminal case from the Metropolitan Magistrate, North-West Delhi, to the Metropolitan Magistrate at Allahabad, Uttar Pradesh. This order was passed without issuing notice to the review petitioner, Rajendra Khare, who was the original complainant in the case. Following this order, Rajendra Khare filed a Miscellaneous Application (M.A. No. 1589 of 2018) seeking recall of the transfer order, which was dismissed by the Supreme Court on 05.06.2018. Subsequently, Rajendra Khare filed a review petition seeking review of the orders dated 18.05.2018 and 05.06.2018.

Legal Framework

The Supreme Court’s power to review its judgments or orders is derived from Article 137 of the Constitution of India, which states:
“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 have power to review any judgment pronounced or order made by it.”

The procedure for review is governed by the Supreme Court Rules, 2013, specifically Order XLVII, Rule 1, which states:
“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 criminal proceeding except on the ground of an error apparent on the face of the record.”

The transfer of criminal cases is governed by Section 406 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The Supreme Court Rules, 2013, Order XXXIX, Rule 2, outlines the procedure for transfer petitions:
“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 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 State and to such other parties interested as the Court may think fit to direct.”

Arguments

Arguments by the Review Petitioner:

• The review petitioner, Rajendra Khare, argued that he was the original informant in the FIR and should have been made a party to the transfer petition.
• He contended that he was deliberately not impleaded to deny him the opportunity to oppose the transfer.
• He submitted that the Supreme Court allowed the transfer petition on the first day of hearing without issuing notice, violating Order XXXIX of the Supreme Court Rules, 2013.
• He argued that the Miscellaneous Application (M.A.) was summarily dismissed without giving him a chance to file a counter-affidavit, violating principles of natural justice.
• He stated that there were no valid grounds for transferring the case, as most of the witnesses were from Delhi.
• He pointed out that even after the transfer order, the respondents did not appear before the transferee court.
• He submitted that there was an error apparent on the face of the record in the order dated 18.05.2018.

Arguments by the Respondents:

• The respondents argued that no grounds were made out to review the judgment dated 18.05.2018.
• They claimed that the review petitioner was initially impleaded as respondent No. 2 in the transfer petition, but his name was deleted due to an objection by the Registry.
• They stated that the Supreme Court had granted liberty to file an application, which the review petitioner exhausted by filing M.A. No. 1589 of 2018.
• They submitted that all grounds raised in the review petition were already taken in the M.A. No. 1589 of 2018, and the rejection of the M.A. should bar the review petition.

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was whether the order dated 18.05.2018, which transferred the criminal case, could be reviewed given that the review petitioner was not a party to the transfer petition and was not heard before the order was passed.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court held that the order dated 18.05.2018 was passed without adhering to the proper procedure as outlined in Order XXXIX Rule 2 of the Supreme Court Rules, 2013. The review petitioner, being the original complainant, was a necessary party and should have been given an opportunity to be heard. The Court found that the order was passed on the first day of hearing without issuing notice, which constituted an error apparent on the face of the record.

The Court emphasized that the rejection of the Miscellaneous Application (M.A.) did not preclude the review petitioner from filing a review petition under Article 137 of the Constitution and Order XLVII Rule 1 of the Supreme Court Rules, 2013. The Court noted that the M.A. was an application to recall the judgment, whereas the review petition was a statutory proceeding.

The Court stated that “To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience.” The Court also noted that “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.” The Court further observed that “The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings.”

The Supreme Court allowed the review petition, recalled the order dated 18.05.2018, and revived the Transfer Petition (Crl.) No. 262 of 2018. The review petitioner was impleaded as respondent No. 4 in the transfer petition. The respondents were given one week to file a counter-affidavit, and the review petitioner was given one week to file a rejoinder. The transfer petition was listed for hearing on 12.02.2021. The contempt petition was closed.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following:

• Error in Procedure: The Court found a clear procedural error in not issuing notice to the review petitioner before transferring the case. This was a violation of Order XXXIX Rule 2 of the Supreme Court Rules, 2013.
• Violation of Natural Justice: The Court emphasized that the review petitioner, being the original complainant, should have been given an opportunity to be heard before the transfer order was passed.
• Statutory Right to Review: The Court clarified that the rejection of the M.A. did not take away the review petitioner’s statutory right to file a review petition.
• Importance of Correcting Errors: The Court reiterated that correcting errors is a compulsion of judicial conscience and that the power to review is inherent in the judicial system to rectify mistakes.

Key Takeaways

• Importance of Natural Justice: The judgment underscores the importance of adhering to principles of natural justice, especially the right to be heard, in judicial proceedings.
• Procedural Compliance: It highlights the need for strict compliance with procedural rules, such as those outlined in the Supreme Court Rules, 2013.
• Review Jurisdiction: The decision clarifies the scope of the Supreme Court’s review jurisdiction under Article 137 of the Constitution and Order XLVII Rule 1 of the Supreme Court Rules, 2013.
• No Bar on Review: The rejection of a miscellaneous application does not bar the filing of a review petition if the grounds for review are met.
• Rectification of Errors: The judgment emphasizes that the judiciary has a duty to correct errors to ensure justice is served.

Directions

The Supreme Court issued the following directions:

• The order dated 18.05.2018 was recalled.
• Transfer Petition (Crl.) No. 262 of 2018 was revived.
• The review petitioner was impleaded as respondent No. 4 in the transfer petition.
• The respondents were given one week to file a counter-affidavit to the transfer petition.
• The review petitioner was given one week to file a rejoinder, if any.
• The transfer petition was listed for hearing on 12.02.2021.
• The contempt petition was closed.

Development of Law

The ratio decidendi of this case is that a review petition is maintainable even after the rejection of a miscellaneous application, especially when there is a clear violation of procedural rules and principles of natural justice. This case reinforces the importance of adhering to procedural fairness and the right to be heard in judicial proceedings. It also clarifies that the Supreme Court has the power and duty to correct its errors to ensure justice is served.

Conclusion

The Supreme Court’s decision to allow the review petition underscores the importance of procedural fairness and the right to be heard in judicial proceedings. By recalling its previous order and reviving the transfer petition, the Court ensured that all parties, including the original complainant, are given a fair opportunity to present their case. This judgment reinforces the principle that the judiciary has a duty to correct its errors to ensure justice is served.

Category

Parent Category: Criminal Procedure Code, 1973
Child Categories:

• Section 406, Criminal Procedure Code, 1973
• Transfer of Criminal Cases
• Review Petition
• Principles of Natural Justice

Parent Category: Supreme Court Rules, 2013
Child Categories:

• Order XXXIX, Supreme Court Rules, 2013
• Order XLVII, Supreme Court Rules, 2013

Parent Category: Constitution of India
Child Categories:

• Article 137, Constitution of India

FAQ

Q: What is a review petition?
A: A review petition is a legal recourse to request a court to review its own judgment or order, typically based on errors apparent on the face of the record or other valid grounds.

Q: Why was the Supreme Court order reviewed in this case?
A: The Supreme Court reviewed its order because the original complainant was not made a party to the transfer petition and was not given a chance to be heard before the transfer order was passed.

Q: What is the significance of the principle of natural justice?
A: The principle of natural justice ensures that all parties are given a fair hearing and are not prejudiced by a decision made without their input.

Q: What does it mean to say there was an error apparent on the face of the record?
A: It means that there was a clear and obvious error in the court’s record or procedure that was evident without requiring further investigation.

Q: What happens when a court order is recalled?
A: When a court order is recalled, it is effectively nullified, and the proceedings are reverted to the stage before the recalled order was passed.