TMI Blog2017 (7) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... wider but normally and ordinarily the review in a criminal case has to be on the grounds as enumerated in Rule 1 of Order 40. What is an error apparent on the face of the record has also been a subject matter of consideration by this Court in a large number of cases. What are the grounds on which this Court shall exercise its jurisdiction and what is the error apparent on the face of the record came to be considered by this Court in KAMLESH VERMA VERSUS MAYAWATI ORS. [ 2013 (8) TMI 912 - SUPREME COURT ]. This Court held that an error which is not self-evident and has to be detected by a process of reasoning is not an error apparent on the face of the record. By review application an applicant cannot be allowed to re-argue 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 earlier decision due to judicial fallibility. There has to be error ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 105-DB/2007 was dismissed. Aggrieved by the judgment of the High court dated 30.05.2008 Criminal Appeal Nos. 1396-1397 of 2008 were filed by the accused. This Court heard the criminal appeals. Two Judge Bench of this Court by its judgment dated 25.01.2010 dismissed the criminal appeals of Vikram Singh and Jasvir Singh whereas death sentence awarded to Smt. Sonia, the third Accused was converted into life imprisonment. Vikram Singh and Jasvir Singh filed Review Petition (Crl.) Nos. 192-193 of 2011 which review petitions were dismissed by circulation vide order dated 20.04.2011 by two-Judge Bench which had heard the criminal appeals on the ground of delay as well as on merits. As noted above after the Constitution Bench judgment of this Court in Mohd. Arif alias Ashfaq (supra) Criminal M.P. Nos. 16673-16674 of 2016 and 16675-16676 of 2016 were filed by the applicants for reopening the Review Petition (Crl.) Nos. 192-193 of 2011. 3. Learned Counsel for the parties were permitted to advance their oral submissions on 24.10.2016 in support of Review Petition (Crl.) Nos. 192-193 of 2011. 4. We have heard Shri K.T.S. Tulsi, learned senior Counsel appearing for Vikram Singh whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of a judgment of this Court are subject to the Rules of the game and cannot be lightly entertained. Explaining the scope and ambit of the review jurisdiction of this Court following was stated: A review of a judgment 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. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. 11. As noticed above although Rule 1 of Order 40 prohibits filing of review application in a criminal proceeding except on the ground of error apparent on the fact of the record. The Constitution Bench of this Court has occasion again to consider the ambit and scope of review jurisdiction in P.N. Eswara Iyer and Ors. v. Registrar, Supreme Court of India (1980) 4 SCC 680. In the above case Order 40 Rule 3 as amended in 1978 was under challenge. In the above context this Court had occasion to consider contour of the review jurisdiction and the Constitution Bench speaking through Justice Krishna Iyer cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source. 12. This Court in subsequent judgments has also noticed that scope of review in criminal proceedings has been considerably widened by the Constitution Bench of this Court in P.N. Eswara (supra). In Suthendraraja alias Suthenthira Raja alias Santhan and Ors. v. State through Superintendent of Police, CBI (1999) 9 SCC 323, Justice D.P. Wadhwa made the following observation: 5. It would be seen that the scope of review in criminal proceedings has been considerably widened by the pronouncement in the aforesaid judgment. In any case review is not rehearing of the appeal all over again and to maintain a review petition it has to be shown that there has been a miscarriage of justice. of course, the expression miscarriage of justice is all-embracing... 13. Again a two-Judge Bench in Lily Thomas and Ors. v. Union of India and Ors. (2000) 6 SCC 224, had the occasion to consider the scope of review jurisdiction of this Court. In paragraph 52 following was laid down: 52. The dictionary meaning of the word review is the act of looking, offer something again w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt 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 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 as under: It is impossible to doubt that the indulgence extended in such 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 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 substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be shown that there is a miscarriage of justice. Though the expression miscarriage of justice is of a wider amplitude, it has to be kept in mind that the scope of interference is very limited.... 16. It was further held that resort to review is proper only where a omission or patent mistake or like grave error has crept in earlier judgment by judicial fallibility. In paragraph 16 following has been stated: 16. As was observed by this Court in Col. Avtar Singh Sekhon v. Union of India, 1980 Supp SCC 562, review is not a routine procedure. A review of an 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 fallibility.... The stage of review is not a virgin ground but review of an earlier order which has the normal feature of finality. 17. As noted above Under Order 40 Rule 1 no application for review can be entertained except on the ground of an error appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the record , for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent . A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. 8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury, 1995 (1) SCC 170, while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, 1979 (4) SCC 389, this Court once again held that review proceedings are not by way of, an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 Code of Civil Procedure. 9. Under Order 47 Rule 1 Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. (2006) 5 SCC 501, held as under: (SCC pp. 504-505, paras 11-12) 11. So far as the grievance of the applicant on merits is concerned, the learned Counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter, It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. 12. When a prayer to appoint an arbitrator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well defined. Normally in a 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 re-argue 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 earlier decision due to judicial fallibility. There has to be error apparent on the face of the record leading miscarriage of justice to exercise the review jurisdiction Under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of the justice. 22. In view of parameters of the review jurisdiction as noticed above, we now proceed to examine the review petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted below: 24. The situation would have been different had the Appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence Under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judgment: 18. We also find that the prosecution has been able to show that the finger prints lifted by the Police Officers from the Alto and Chevrolet cars belonged to Vikram Singh and Jasvir Singh respectively. It is significant that the Chloroform bottle recovered from Darshan Kaur's residence was also examined and the thumb impression of Jasvir Singh was detected thereon. 28. There is evidence of the owner of Alto car, PW. 3, Naresh Kumar Sharma who had stated in his statement that the car was lent by him to Vikram Singh in the morning of 14th February, 2005 at about 7 a.m. to 7.30 a.m. Thus, it was no one's case that Alto car belonged to Vikram Singh. The argument raised by Shri K.T.S. Tulsi is misconceived and we unhesitatingly repel the same. 29. Learned Counsel has further contended that present was not a case where death penalty could have been awarded to the applicants. In the review petition reliance has been placed by the applicants on Constitution Bench judgment in Bachan Singh v. State of Punjab (1980) 2 SCC 684, and judgment in Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470. This Court in its judgment dismissing the appeals referred t ..... 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