“We are right because we are final: we are not final because we are right”
Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767 (Constitutional Bench)
1. Issues
2. Application for ‘Recall’ of a final judgment impermissible:
2.1. No provision / procedure / rules permit filing of an Application for Recall of a Judgment.
2.1.1. Even if an application for recall is filed, it is in effect a Review Petition and should be treated as such.
2.1.2. By filing such an Application for recall, the party cannot be permitted to circumvent the procedure of circulation procedure and indirectly obtain an hearing in open court.
2.2. Only recourse available is of ‘Review’ under Article 137 of the Constitution of India.
2.2.1. Review is not an Appeal against the final judgment and a re-hearing is not permissible.
2.2.2. Party aggrieved by a decision in Review Petition can even file a ‘Curative Petition’, meaning that adequate safeguards are inbuilt and recourse to ‘recall’ is not even necessary, much less, permissible.
2.3. Review Petition is to be listed before the same judges who delivered the original judgment.
3. Conclusion.
Background:
Recently, the Ld. Division Bench of the Hon’ble Supreme Court of India in a matter titled as Ritu Chhabaria Versus Union of India & Ors. bearing Writ Petition (Criminal) No. 60 of 2023 decided on 26.04.2023 reported in 2023 LiveLaw (SC) 352 held that in case an incomplete charge-sheet has been filed by the investigating agency, then the Accused shall have an indefeasible right to default bail in terms of Section 167 (2) of the Code of Criminal Procedure, 1973.
Central Bureau of Investigation, aggrieved by the said final judgment, filed an Application seeking recall of Ritu Chhabaria (supra) bearing Diary No. 18276 of 2023 dated 01.05.2023. Vide ex-parte order dated 01.05.2023, it was ordered by another Ld. Division Bench of the Hon’ble Supreme Court of India as under:
2 List the proceedings on 4 May 2023 before a bench of three-Judges.
3 In the meantime, in the event that any other applications have been filed before any other Court on the basis of the judgment of which recall is sought, they shall be presently deferred beyond 4 May 2023.
The ex-parte interim order dated 01.05.2023 has been continued by the Ld. Three Judge Bench of the Hon’ble Supreme Court of India till 12.05.2023.
Consideration:
1. Issues:
1.1. After passing of a final judgment by the Hon’ble Supreme Court of India, can an aggrieved party seek ‘recall’ of the same dehors any provisions for the same?
1.2. Would an application for ‘recall’ be considered an attempt to circumvent the provisions of Article 137 of the Constitution of India (Power of Review) and rules regarding the same?
1.3. If an application for ‘recall’ be said to be permissible, what are the parameters for exercise of such a power? What would be the procedure for the same?
1.4. Whether the same is required to be listed before the same judges who passed the final judgment or not?
2. Application for ‘Recall’ of a final judgment impermissible:
2.1. No provision / procedure / rules permit filing of an Application for Recall of a Judgment:
A final judgment of the Supreme Court declares the law, in terms of Article 141 of the Constitution of India. Such judgment is to be treated as final, having a binding effect.
Under the Constitution of India or the Supreme Court Rules, there is no provision which permits an aggrieved party to file an Application seeking recall of a final judgment passed by the Supreme Court.
A judgment, naturally, is criticised by one or the other segment of society, however, recall thereof cannot be claimed at a drop of a hat, on a mere claim that certain essential aspects were not considered or on alleged violation of principles of natural justice or on the ground that the ramifications of the judgment were not considered or on such like reasons. Fraud on Court, however, can be a cause to recall a final judgment, but the same is essentially a suo moto inherent jurisdiction exercised by the Court, being a Constitutional Court.
A judgment to be binding is not required to undergo a test of being right/correct, as right or wrong is not a definite science, neither is justice. As, if correctness would be the ultimate test, then certainly, any decision could be subjected to such litmus test. Such absolutism is unknown to judicial decisions.
Say a judgment passed by the Constitutional Bench is not considered to be right by an aggrieved party, can the said party be permitted to seek ‘recall’ of the same before a Larger Bench on the test of correctness? Would then the judgment by a Seven Judge Bench, not be subject to the same test in subsequent recall?
Can there be an end to such a process, if the litmus test is correctness of a judgment?
No. This shall lead to repeated rounds of attack to the final judgments, hoping hopelessly for a different view. No one whatsoever can be permitted to entertain a notion about uncertainty in a final judgment, on their own perception of availability of alternative and satisfactory view. The same shall only lead to chaos and shall impair the integrity of the institutional as a whole.
This is the reason why it is said that a final judgment passed by the Supreme Court is not final because it is right, but rather, it is right because it is final. [Ref: Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767 (Constitutional Bench)]
The principle of finality is insisted upon not on the ground that a judgment given by the Apex Court is impeccable but on the maxim interest reipublicae ut sit finis litium [It is in the interest of the State that there should be an end of lawsuits.]. [Ref: Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 38 (Constitutional Bench), Para 40] [Said legal maxim is also followed in Joydeep Mukharjee v. State of W.B., (2011) 2 SCC 706 : 2011 SCC OnLine SC 283.]
Consider this that even the judgment in Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929 (Three Judge Bench), which judgment had far-reaching ramifications inter alia against the personal liberty of accused persons, was delivered without taking into consideration the binding effect of law laid down by the Constitutional Bench in Ramanlal Bhogilal Shah v. D.K. Guha (1973) 1 SCC 696, though specifically argued (at Para 63); yet ‘review’ of the same was sought, rather than ‘recall’ thereof. Several such instances over the years are apparent.
Recall, if any, is a suo moto exercise of inherent jurisdiction only in exceptional circumstances. The same is an extraordinary procedure, not to be exercised in routine but rather, very sparingly and in exceptional circumstances alone.
2.1.1. Even if an application for recall is filed, it is in effect a Review Petition and should be treated as such:
In Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296, it was held as under:
“We, therefore, agree with the learned Solicitor General that 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 in chambers.“
(emphasis supplied)
By filing an Application for recall, an attempt cannot be made to achieve indirectly, which cannot be done directly. In State of Haryana v. M.P. Mohla, (2007) 1 SCC 457, it was held as under:
“28. Mr Srivastava submitted that an application for review in effect and substance was an application for clarification of the judgment of the High Court. We do not think so. An application for clarification cannot be taken recourse to to achieve the result of a review application. What cannot be done directly, cannot be done indirectly. (Ram Chandra Singh v. Savitri Devi [(2004) 12 SCC 713])“
(emphasis supplied)
In Gyanashyam Mishra and Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Company Ltd. & Ors in IA No. 76416/2021 in Civil Appeal No. 8129 of 2019 decided on 17.08.2022, it was has held as under:
“4. Having heard learned senior counsel for the parties and having perused the relevant material is placed on record, we are of the considered view that the present applications are nothing else but an attempt to seek review of the judgement and order passed by this Court on 13th April 2021 under the garb of miscellaneous application.
5. We find that there is a growing tendency of indirectly seeking review of the orders of this Court by filing applications either seeking modification or clarification of the orders passed by this Court.
6. In our view, such applications are a total abuse of process of law. The valuable time of Court is spent in deciding such applications which time would otherwise be utilized for attending litigations of the litigants who are waiting in the corridors of justice for decades together.
7. The applications are therefore dismissed with cost of Rs.10,00,000/- (Rupees ten lakhs) each to be paid by the applicants within four weeks from the date of this order. The cost of Rs.10,00,000/- imposed on the applicant in M.A. No. 1166 of 2021 shall be deposited in the Supreme Court Advocates-on-Record Association Welfare Fund (SCAORAWF)….”
(emphasis supplied)
Thus, an Application for ‘recall’ is to be treated as a Review Petition, as nomenclature of the Application does not matter. In Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400, it was held as under:
26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.
(emphasis supplied)
For a Review Petition, a specific procedure is provided in Order XLVII of the Supreme Court Rules, 2013.
2.1.2. By filing such an Application for recall, the party cannot be permitted to circumvent the procedure of circulation procedure and indirectly obtain an hearing in open court:
In Delhi Admn. v. Gurdip Singh Uban (supra), it was held that:
“17. We next come to applications described as applications for “clarification”, “modification” or “recall” of judgments or orders finally passed. We may point out that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued.
Order XL Rule 3 states as follows:
“3. Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party….”
In case notice is issued, the review petition will be listed for hearing, after notice is served. This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of “no hearing”, we find that sometimes applications are filed for “clarification”, “modification” or “recall” etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. By describing an application as one for “clarification” or “modification”, — though it is really one of review — a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registrar of this Court in Sone Lal v. State of U.P. [(1982) 2 SCC 398] deprecating a similar practice.)”
(emphasis supplied)
2.2. Only recourse available is of ‘Review’ under Article 137 of the Constitution of India:
Article 137 of the Constitution of India empowers the Supreme Court to review any judgment or order subject to the provisions of any law made by Parliament or any rules made under Article 145. Article 145 gives power to make rules for regulating the practice and procedures in the Court. Clause (e) provides for rules relating to the conditions subject to which any judgment or order pronounced by the Court may be reviewed and the procedure for such review.
Order XLVII Rule 1 of the Supreme Court Rules, 2013 provides as follows:
“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 47 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 application for review shall be accompanied by a certificate of the Advocate-on-Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.”
(emphasis supplied)
In Rajendra Khare v. Swaati Nirkhi, (2021) 15 SCC 383 : 2021 SCC OnLine SC 68, initially an application for recall was filed, which was rejected. Thereafter, Review Petition was considered. The relevant portion of the same is as under:
2.5. The review petitioner, who had filed FIR No. 39 of 2016 was not made one of the respondents in the transfer petition. The review petitioner after order dated 18-5-2018 [Swaati Nirkhi v. State (NCT of Delhi), 2018 SCC OnLine SC 3662] filed MA No. 1589 of 2018 praying for recall of the order dated 18-5-2018 passed by this Court in Swaati Nirkhi v. State (NCT of Delhi) [Swaati Nirkhi v. State (NCT of Delhi), 2018 SCC OnLine SC 3662] . This Court dismissed [Swati Nirkhi v. State (NCT of Delhi), 2018 SCC OnLine SC 3663] the MA by passing the following order : (Swati Nirkhi case [Swati Nirkhi v. State (NCT of Delhi), 2018 SCC OnLine SC 3663] , SCC OnLine SC paras 1-2)
“1. No further order is called for.
2. MA is, accordingly, dismissed.”
2.6. After rejection of MA No. 1589 of 2018, the review petitioner has filed this Review Petition (Crl.) No. 671 of 2018 praying for review of orders dated 18-5-2018 [Swaati Nirkhi v. State (NCT of Delhi), 2018 SCC OnLine SC 3662] and 5-6-2018 [Swati Nirkhi v. State (NCT of Delhi), 2018 SCC OnLine SC 3663] . In this review petition, order was passed on 24-10-2018 allowing the application for open court hearing and notice was issued by this Court. This Court passed the following order on 24-10-2018 [Rajendra Khare v. Swaati Nirkhi, 2018 SCC OnLine SC 3664] : (Rajendra Khare case [Rajendra Khare v. Swaati Nirkhi, 2018 SCC OnLine SC 3664] , SCC OnLine SC paras 1-3)
“1. Application for Open Court hearing is allowed.
2. Delay condoned.
3. Issue notice.”
(emphasis supplied)
2.2.1. Review is not an Appeal against the final judgment and a re-hearing is not permissible:
Review, however, cannot be converted into an Appeal against an earlier decision of the Court, as held in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 : 1987 SCC (Cri) 82 (Constitutional Bench), relevant portion of which is as under:
“49. The review petition was admitted after the appeal had been dismissed only because Nandini Satpathy cases [(1987) 1 SCC 269 and (1987) 1 SCC 279] had been subsequently referred to a larger bench to review the earlier decisions. When the earlier decisions are allowed to remain intact, there is no justification to reverse the decision of this Court by which the appeal had already been dismissed. There is no warrant for this extraordinary procedure to be adopted in this case. The reversal of the earlier judgment of this Court by this process strikes at the finality of judgments of this Court and would amount to the abuse of the power of review vested in this Court, particularly in a criminal case. It may be noted that no other court in the country has been given the power of review in criminal cases. I am of the view that the majority judgment of Baharul Islam and R.B. Misra, JJ. should remain undisturbed. This case cannot be converted into an appeal against the earlier decision of this Court.”
(emphasis supplied)
A Review Petition is not a re-hearing of a matter and merely showing that another view is possible is not sufficient. In Vikram Singh v. State of Punjab [Vikram Singh v. State of Punjab, (2017) 8 SCC 518 : (2017) 3 SCC (Cri) 641], it was laid down as under:
“23. In view of the above, it is clear that scope, ambit and parameters of review jurisdiction are 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 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 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 a material error manifest on the face of the record with results in the miscarriage of justice.”
(emphasis supplied)
A review must be subject to the rules of the game and cannot be lightly entertained, as held in Sow Chandra Kante v. Sk. Habib, (1975) 1 SCC 674 : 1975 SCC (Cri) 305 : 1975 SCC (L&S) 184 : 1975 SCC (Tax) 200, relevant portion of which is as under:
Mr Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re-hearing. May be, we were not right is refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. 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. The very strict need for compliance with these factors is the rationale behind the insistence of counsel’s certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.
(emphasis supplied)
2.2.2. Party aggrieved by a decision in Review Petition can even file a ‘Curative Petition’, meaning that adequate safeguards are inbuilt and recourse to ‘recall’ is not even necessary, much less, permissible:
In Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 (Constitutional Bench), the concept of Curative Petition was explained. It was held as under:
“49. The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgments in exercise of its inherent power.
50. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.
51. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of the principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.
52. The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the above requirements.“
(emphasis supplied)
2.3. Review Petition is to be listed before the same judges who delivered the original judgment:
Order XLVII Rule 3 of the Supreme Court Rule, 2013 provides as under:
“3. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed.“
(emphasis supplied)
In P.N. Eswara Iyer v. Supreme Court of India, (1980) 4 SCC 680 (Constitutional Bench), the constitutional validity of Order XL Rule 3 (as amended in 1978) {similar to the present Rule} was considered and upheld. It was held as under:
“16. Let us look at the actuality without being scary. The rule under challenge does not implicate or attract an original hearing at all. It relates to “review” situations. Ex hypothesi, an antecedent judicial hearing and judicial order exist. Indeed, if a full oral hearing on the Bench has already taken place the dangerousness of secret disposals dies out. What is asked for is a review or second look at the first order. Should this second consideration be plenary? Never. The focus must be limited to obvious, serious errors in the first order. Indiscriminate second consideration cannot be purchased by more payment of court fee. We reject the strange plea one of the Advocates put forward that since the petitioner had paid court fee for review he had the right to the full panoply of oral hearing ad libitem covering the whole range.
17. Review must be restricted if the hard-pressed judicial process is not to be a wasting disease. There are many ways of limiting its scope, content and modality. The confinement to certain special grounds, as in Order 47 Rule 1 CPC, is one way. The requirement of counsel’s reasoned certificate of fitness (certworthiness) for review is another. Judicial screening to discover the presence, prima facie, of good grounds to hear counsel in oral submission is a third. The first is good and continues. The second was tried and found ineffective and the third is being tried. Legislative policy is experimental as life itself is a trial-and-error adventure. What is shocking about this third alternative? Judges scrutinise — the same Judges who have once heard oral arguments and are familiar with the case — and, if they do not play truant, direct a hearing in court if they find good grounds. If there is ground, oral hearing follows. It is not as if all oral advocacy is altogether shut out. Only if preliminary judicial scrutiny is not able to discern any reason to review is oral exercise inhibited. The court process is not a circus or opera where the audience can clamour for encore. When the system is under the severe stress of escalating case-load, management of Justice Business justifies forbiddance of frivolous reviews by scrutiny in limine on the written brief. Justicing too is in need of engineering.
… … …
20. We agree that the normal rule of the judicial process is oral hearing and its elimination an unusual exception. We are now on the vires of a rule relating to review in the highest Court. A full-dress hearing, to the abundant accompaniment of public presence and oral submission, is over. It is a second probe. Here written arguments are given. The entire papers are with the Judges. The Judges themselves are the same persons who have heard oral presentation earlier. Moreover, it is a plurality of Judges, not only one. Above all, if prima facie grounds are made out a further oral hearing is directed. Granting basic bona fides in the Judges of the highest Court, it is impossible to argue that partial foreclosure of oral arguments in court is either unfair or unreasonable or so vicious an invasion of natural justice as to be ostracised from our constitutional jurisprudence. It must be remembered that review is not a second dose of the same arguments once considered and rejected. The rejection might have been wrong but that cannot be helped. Dissenting minorities regard the dominant majorities wrong in their judgments but there is no helping it.
… … …
22. … … To sum up, the advantages of the circulation system linked up with the objects of saving Judge-time in court and prompter despatch of review petitions are obvious. To organize review Benches of the same Judges who first heard the case only to last for a few minutes or a little longer, then to disperse and rearrange regular Benches, especially when most of the review petitions are repeat performances in futility, is a judicial circus the court can ill afford. The rule is rational, the injury is marginal.“
(emphasis supplied)
In Rupa Ashok Hurra (supra), as regards a Curative Petition, held that:
“53. We are of the view that since the matter relates to re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three seniormost Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders. It shall be open to the Bench at any stage of consideration of the curative petition to ask a Senior Counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.“
(emphasis supplied)
3. Conclusion:
In view of the above, it is clear that an Application for ‘Recall’ is not maintainable and an abuse of process of law.
Only a Review Petition is permissible, in terms of Article 137 of the Constitution of India read with the Supreme Court Rules, 2013.
WELL PUT .