Devender
Pal Singh Vs. State, N.C.T. of Delhi and Anr
[2002] Insc 561 (17
December 2002)
B.N.
Agrawal & Arijit Pasayat. Arijit Pasayat, J.
Appeal (crl.) 993 of 2001 Review Petition (crl.) 626 of 2002
Appeal (crl.) 761 of 2001 Review Petition (crl.) 627 of 2002 Appeal (crl.) 761
of 2001
These
three review petitions have been filed in terms of Article 137 of the
Constitution of India, 1950 (in short 'the Constitution'). Though the review
applications contain certain references to the conclusions arrived at the
judgment in Criminal Appeal No.761/2001 with death reference No.1/2001, at the
time of the hearing it was restricted to the question whether imposition of
death sentence would be proper when one of the three Hon'ble Judges recorded a
finding of acquittal. So far as review application No.626/2002 is concerned,
same was the plea. In review application No.627/2002 the plea was that when one
Hon'ble Judge held that life sentence should be proper, death sentence could
not be imposed merely because the two other Hon'ble Judges held so. Though at
the outset learned counsel for the applicants submitted that they were not
questioning the correctness of the conclusions but reference was made to
certain findings recorded in the appeals and the death references to contend
that the conclusions arrived at by the majority were not in order. However,
when it was pointed out by the learned counsel for the applicants that they had
conceded to the position that their submissions with regard to the review
application were restricted to the question of sentence at the threshold, it
was submitted that a reference to the conclusions arrived at may be incidental
and necessary.
The
primary stand of the applicant in the review application as noted above is that
as a matter of practice, this Court never imposed death sentence when there was
an acquittal by the trial court or the High Court. It was also submitted that
since one Hon'ble Judge in each case felt that either life sentence should be
imposed or acquittal should be there, the judgments should be reviewed and the
matter should be referred to a larger Bench to decide this issue. Reference was
made to the minority view in Bachan Singh vs. State of Punjab (1982 (3) SCC 24)
and contended that in view of the irrevocable nature of the death sentence, in
the facts situation as noted above, death sentence cannot be appropriate.
Reference was made to several decisions where this Court had not imposed death
sentence because of the acquittal by the trial court or by the High Court. (e.g.
Pandurang and Ors. vs. State of Hyderabad (AIR 1955 SC 216 (para 37), State
(Delhi Administration vs. Laxman Kumar and Ors. (1985(4) SCC 476 at (para 49), Smt.
Lichhamadevi vs. State of Rajasthan
(1988 (4) SCC 456 (paras 14 and 15) and State of Maharashtra vs. Bharat Fakira Dhiwar (2002(1) SCC 622 para 23). It was
submitted that in case of acquittal by one Hon'ble Judge, it would not come
within the umbrella of the category "rarest of the rare". It was also
submitted that when there is a difference of view on the Bench even if it be of
minority view, notice should be issued to the respondents for hearing of the
review application.
Review
applications can be filed under Article 137 of the Constitution of India read
with Order XL of the Supreme Court Rules, 1966 as amended (hereinafter referred
to as 'the Rules'). As the Article indicates that this Court has the power to
review any judgment pronounced or order made by it subject to the provisions of
any law made by Parliament or any rule made under Article 145 of the
Constitution, in exercise of these powers the Rules have been framed. Rules 1
and 2 of Order XL of the Rules are relevant and reproduced as under:
"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 XL
VII Rule 1 of the Code, and in a criminal proceeding except on the ground of an
error apparent on the face of the record.
2. An
application for review shall be by a petition, and shall be filed within thirty
days from the date of the judgment or order sought to be reviewed. It shall set
out clearly the grounds for review." The scope of review in criminal
proceedings was considered by a Constitution Bench in P.N. Eswara Iyer and Ors.
v. Registrar, Supreme Court of India (1980 (4) SCC 680) and recently in Suthendraraja
@ Suthenthira Raja @ Santhan and Ors. vs. State through DSP/CBI, SIT, Chennai
(1999 (9) SCC 323) and Ramdeo Chauhan @ Raj Nath vs. State of Assam (2001(5) SCC 714).
The
Constitution Bench in P.N. Eswara Iyer's case (supra) observed as follows:
"34.
Rule 1 of Order XL on its face, affords a wider set of grounds for review of
orders in civil proceedings, but limits the ground vis--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. 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 an accused 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 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 canalizes 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' 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 here, correction becomes necessitous.
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 40 Rule 2) must, 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 no insuperable difficulty in equating
the area in civil and criminal proceedings when review power is invoked from
the same source." Though the scope of review in criminal proceedings has
been widened to a considerable extent in view of the aforesaid exposition of
law by the Constitutional Bench, in any case review is not re-hearing of the
appeal all over again, and as was observed in Suthendraraja (supra) in order to
maintain the review petition it has to be shown that there is a miscarriage of
justice. Though the expression "miscarriage of justice" is of wider
amplitude, it has to be kept in mind that the scope of interference is very
limited. Ordinarily application for review is disposed of by circulation without
any detailed arguments, unless otherwise ordered by the Court in terms of Rule
3. As regards the desirability of awarding life sentence when there is
diversion of views, in Suthendraraja's case (supra) a similar question was
considered. Here again by majority it was held that the scope for the review of
the death sentence awarded is not there merely because one of the Judges held
so. The position has been succinctly stated by Learned Brother Quadri, J. in
the following words:
"The
ambit of Rule XL(1) of the Supreme Court Rules which provides grounds for
review, as interpreted by this Court in P.N. Eswara Iyer v. Registrar, Supreme
Court of India vis--vis criminal proceedings, is not confined to "an error
apparent on the face of the record".
Even
so by the process of interpretation it cannot be stretched to embrace the
premise indicated by my learned brother as a ground for review. That apart
there are two difficulties in the way. The first is that the acceptance of the
said proposition would result in equating the opinion of the majority to a
ground analogous to "an error apparent on the face of the record" and
secondly in a Bench of three Judges or of greater strength if a learned Judge
is not inclined to confirm the death sentence imposed on a convict, the
majority will be precluded from confirming the death sentence as that per se
would become open to review." Mr. Kapil Sibal, learned senior counsel,
appearing for the applicant- Devender Pal Singh tried to distinguish the
aforesaid view on the ground that the same related to question of life and
death sentences, and not of acquittal and death sentence. When it was put to
him as to the basis for making reference to a larger Bench, it is submitted
that the same was in the background of Article 21 of the Constitution and after
receiving the view of the larger Bench the review could be disposed of. On a
query made as to whether that would not amount to creation of an appellate
forum in respect of a decided case, his answer was in the negative. However, he
submitted that even if it so, that would not to be material when the life of a
person in the background of Article 21 was involved.
It was
pointed out that whenever there is an acquittal by the trial court or the High
Court, as a matter of practice, death sentence was not imposed.
We may
point out that there is a difference between a practice even if it is accepted
to be prevalent, and the application of law. While former is variable, correct
application of law is invariable. A practice may be departed from for good and
compelling reasons, but in that sense application of law is invariable. We may
point out here that in all cases relied upon for the proposition that death
sentence would not be proper a rider was added by the Court that it was not of
universal application and for good and compelling reasons departure can be
made. We are primarily of the view that while deciding the question whether a
case falls under "rarest of rare category" the nature of the offence
and its impact on the society are determinative factors. Mere acquittal or
lesser sentence imposed does not really relate to the gravity of the offence or
its impact on the society. If after consideration of the materials, the Court
comes to finding that it belongs to the "rarest of rare category",
acquittal or sentence of life awarded by trial or High Court should not be
considered to be a mitigating factor. As was observed in Suthendraraja's case
(supra) the majority will be precluded as a matter of course from death
sentence and that is not the correct position.
In a
recent case in State of U.P. vs. Dharmendra Singh and Anr. (1999
(8) SCC 325), the argument was that there was expectation of survival
entertained by the accused after the High Court refused to confirm the death
sentence and there should not be interference with the judgment of the High
Court by substituting death for life sentence. This Court found no legal basis
for the argument. It was, inter alia, observed that in the judicial system like
ours when there is a hierarchy of courts the possibility of reversal of
judgments is inevitable and, therefore, expectation of an accused cannot be a
mitigating factor to interfere in an appeal for enhancement of sentence, if the
same is otherwise called for in law. The Court also noted that in appropriate
cases there is an obligation on the Courts to award sentence of death.
Reference
was made to Ronny @ Ronald James Alwaris and Ors. vs. State of Maharashtra (1998) 3 SCC 625), where it was
observed:
The
obligation of the court in making the choice of death sentence for the person
who is found guilty of murder is onerous indeed. But by sentencing a person to
death, the court is giving effect to the command of law which is in public
interest whereas in committing the murder or being privy to commit murder, even
if it be a vengeance for another murder, the convict is violating the law which
is against public interest." This position was re-iterated in Ramdeo Chauhan's
case (supra) in the following words:
"This
Court considered the scope of review and the limitations imposed on its
exercise under Article 137 of the Constitution of India in Lily Thomas v. Union
of India (2000 (6) SCC 224) and held: (SCC pp. 247-51, paras 52-56)
52.
The dictionary meaning of the word 'review' is 'the act of looking, offer something
again with a view to correction or improvement'. It cannot be denied that the
review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji
Arjunsinghji (1971 (3) SCC 844) held that the power of review is not an inherent
power. It must be conferred by law either specifically or by necessary
implication. The review is also not an appeal in disguise. It cannot be denied
that justice is a virtue which transcends all barriers and the rules or
procedures or technicalities of law cannot stand in the way of administration
of justice. Law has to bend before justice. If the court finds that the error
pointed out in the review petition was under a mistake and the earlier judgment
would not have been passed but for erroneous assumption which in fact did not
exist and its perpetration shall result in a miscarriage of justice nothing
would preclude the court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka ) 1993 Supp (4) SCC 595) held: (SCC
pp.619-20, para 19) "19. Review literally and even judicially means re-
examination or reconsideration. Basic philosophy inherent in it is the
universal acceptance of human fallibility. Yet in the realm of law the courts
and even the statutes lean strongly in favour of finality of decision legally
and properly made. Exceptions both statutorily and judicially have been carved
out to correct accidental mistakes or miscarriage of justice. Even when there
was no statutory provision and no rules were framed by the highest court
indicating the circumstances in which it could rectify its order the courts
culled out such power to avoid abuse of process or miscarriage of justice. In
Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai (AIR 1941 SC 1) the Court
observed that even though no rules had been framed permitting the highest Court
to review its order yet it was available on the limited and narrow ground
developed by the Privy Council and the House of Lords. The Court approved the
principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind
Singh ( 1836 (1) Moo PC 117) that an order made by the Court was final and
could not be altered:
".......nevertheless,
if by misprision in embodying the judgments, errors have been introduced, these
courts possess, by common law, the same power which the courts of record and
statute have of rectifying the mistakes which have crept 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. Our Constitution-makers who had
the practical wisdom to visualize the efficacy of such provision expressly
conferred the substantive power to review any judgment or order by Article 137
of the Constitution. And clause (c) of Article 145 permitted this Court to
frame rules as to the conditions subject to which any judgment or order may be
reviewed. In exercise of this power Order 40 had been framed empowering this
Court to review an order in civil proceedings on grounds analogous to Order 47
Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient
reason' in the clause has been given an expanded meaning and a decree or order
passed under misapprehension of true state of circumstances has been held to be
sufficient ground to exercise the power. Apart from Order 40 Rule 1 of the
Supreme Court Rules this Court has the inherent power to make such orders as
may be necessary in the interest of justice or to prevent the abuse of process
of court. The Court is thus not precluded from recalling or reviewing its own
order if it is satisfied that it is necessary to do so for sake of justice.'
The mere fact that two views on the same subject are possible is no ground to
review the earlier judgment passed by a Bench of the same strength.
53.
This Court in Northern India Caterers (India) Pvt. Ltd. v. Lt. Governor of
Delhi (1980 (2) SCC 167) considered the powers of this Court under Article 137
of the Constitution read with Order 47 Rule 1 CPC and Order 40 Rule 1 of the
Supreme Court Rules and held: (SCC pp. 171-72, para 8) '8. It is well settled
that a party is not entitled to seek a review of a judgment delivered by this
Court merely for the purpose of a rehearing and a fresh decision of the case.
The normal principle is that a judgment pronounced by the Court is final, and
departure from that principle is justified only when circumstances of a
substantial and compelling character make it necessary to do so:
Sajjan
Singh v. State of Rajasthan (1965 (1) SCR 933, at p. 948). For
instance, if the attention of the Court is not drawn to a material statutory
provision during the original hearing, the Court will review its judgment: Girdhari
Lal Gupta v. D.H.Mehta (1971 (3) SCR 748, at p. 760). The Court may also reopen
its judgment if a manifest wrong has been done and its is necessary to pass an
order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi (1971 (2) SCR 11, at p. 27). Power
to review its judgments has been conferred on the Supreme Court by Article 137
of the Constitution, and that power is subject to the provisions of any law
made by Parliament or the rules made under Article 145. In a civil proceeding,
an application for review is entertained only on a ground mentioned in Order 47
Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the
ground of an error apparent on the face of the record. (Order 40 Rule 1,
Supreme Court Rules, 1966). But whatever the nature of the proceedings, it is
beyond dispute that a review proceeding cannot be equated with the original
hearing of the case, and the finality of the judgment delivered by the Court
will not be reconsidered except "where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial fallibility":
Sow
Chandra Kante v. Sk. Habib.' (1975 (1) SCC 674)
54.
Article 137 empowers this Court to review its judgments subject to the
provisions of any law made by Parliament or any rules made under Article 145 of
the Constitution. The Supreme Court Rules made in exercise of the powers under
Article 145 of the Constitution prescribe that in civil cases, review lies on
any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure
which provides:
'1.
Application for review of judgment (1) Any person considering himself aggrieved
(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred, (b) by a decree or order from which no appeal is
allowed, or (c) by a decision on a reference from a Court of Small Causes, and
who, from the discovery of new and important matter or evidence which, after
the exercise of due diligence, was not within his knowledge or could not be
produced by him at the time when the decree was passed or order made, or on
account of some mistake or error apparent on the face of the record, or for any
other sufficient reason, desires to obtain a review of the decree passed or
order made against him, may apply for a review of judgment to the court which
passed the decree or made the order.' Under Order 40 Rule 1 of the Supreme
Court Rules no review lies except on the ground of error apparent on the face
of the record in criminal cases. Order 40 Rule 5 of the Supreme Court Rules
provides that after an application for review has been disposed of no further
application shall be entertained in the same matter.
55. In
A.R. Antulay v. R.S. Nayak (1988 (2) SCC 602) this Court held that the
principle of English law that the size of the Bench did not matter has not been
accepted in this country. In this country there is a hierarchy within the Court
itself where larger Benches overrule smaller Benches. This practice followed by
the Court was declared to have been crystallized as a rule of law. Reference in
that behalf was made to the judgments in Javed Ahmed Abdul Hamid Pawala v.
State of Maharashtra (1985 (1) SCC 275), State of Orissa
v. Titaghur Paper Mills co. Ltd. ( 1985 Supp SCC 280), Union of India v. Godfrey Philips India Ltd. (1985
(4) SCC 369). In that case the Bench comprising seven Judges was called upon to
decide as to whether the directions given by the Bench of this Court comprising
five Judges in the case of R.S Nayak v. A.R. Antulay (1984 (2) SCC 183) were
legally proper or not and whether the action and the trial proceedings pursuant
to those directions were legal and valid. In that behalf reference was made to
the hierarchy of Benches and practice prevalent in the country. It was observed
that Court was not debarred from reopening the question of giving proper
directions and correcting the error in appeal if the direction issued in the
earlier case on 16.2.1984 were found to be violative of limits of jurisdiction
and that those directions had resulted in deprivation of fundamental rights of
a citizen granted by Articles 14 and 21 of the Constitution of India. The Court
referred to its earlier judgments in Prem Chand Garg v. Excise Commissioner
U.P. (1963 Supp (1) SCR 885), Naresh Shridhar Mirajkar v. State of Maharashtra
(1966 (3) SCR 744) and Ujjam Bai v. State of U.P. and (1963(1) SCR 778)
concluded that the citizens should not suffer on account of directions of the
Court based upon error leading to conferment of jurisdiction. The directions
issued by the Court were found on facts to be violative of the limits of
jurisdiction resulting in the deprivation of the fundamental rights guaranteed
to the appellant therein. It was further found that the impugned directions had
been issued without observing the principle of audi alteram partem.
56. It
follows, therefore, that the power of review can be exercised for correction of
a mistake and not to substitute a view. Such powers can be exercised within the
limits of the statute dealing with the exercise of power. The review cannot be
treated like an appeal in disguise. The mere possibility of two views on the
subject is not a ground for review. Once a review petition is dismissed no
further petition of review can be entertained. The rule of law of following the
practice of the binding nature of the larger Benches and not taking different
views by the Benches of coordinated jurisdiction of equal strength has to be
followed and practised. However, this Court in exercise of its powers under
Article 136 or Article 32 of the Constitution and upon satisfaction that the
earlier judgments have resulted in deprivation of fundamental rights of a
citizen or rights created under any other statute, can take a different view
notwithstanding the earlier judgment.
As was
observed by this Court in Col. Avtar Singh Sekhon vs. Union of India and Ors.
(AIR 1980 SC 2041), review is not a routine procedure.
A
review of 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.
As was
observed by this Court in M/s Northern India Caterers (India) Ltd.'s case
(supra), whatever nature of the proceeding it is beyond dispute that review
proceeding cannot be equated with the original hearing of the case and the
finality of the judgment delivered by the Court will not be re- considered
except where glaring omission or patent mistake or like error has crept in
earlier.
A
judgment of the final Court of the country is final, and a review of such
judgment is an exception.
In our
opinion compelling reasons for review are non-existent in these cases and
acceptance of the prayer for reference to a larger Bench would be the creation
of a new forum. It may be pointed out that while laying the norms for a
curative petition a Constitution Bench of this Court in Rupa Ashok Hurra vs. Ashok
Hurra and Anr. (2002 (4) SCC 388) has observed:
"24.
There is no gainsaying that the Supreme Court is the court of last resort the
final court on questions both of fact and of law including constitutional law.
The law declared by this Court is the law of the land; it is precedent for
itself and for all the courts/tribunals and authorities in India. In a
judgment, there will be declaration of law and its application to the facts of
the case to render a decision on the dispute between the parties to the lis. It
is necessary to bear in mind that the principles in regard to the highest court
departing from its binding precedent are different from the grounds on which a
final judgment between the parties, can be reconsidered. Here, we are mainly
concerned with the latter. However, when reconsideration of a judgment of this
Court is sought, the finality attached both to the law declared as well as to
the decision made in the case, is normally brought under challenge. It is,
therefore, relevant to note that so much was the value attached to the
precedent of the highest court that in The London Street Tramways Company, Limited
v. London County Council [1898 Appeal Cases 375], the House of Lords laid down
that its decision upon a question of law was conclusive and would bind the
House in subsequent cases and that an erroneous decision could be set right
only by an Act of Parliament.
25. In
Hoystead v. Commissioner of Taxation [ 1926 AC 155 at 165], Lord Shaw observed:
"Parties
are not permitted to begin fresh litigations because of new views they may
entertain of the law of the case, or new versions which they present as to what
should be a proper apprehension by the court of the legal result.....If this
were permitted litigation would have no end, except when legal ingenuity is
exhausted."
26. To
the same effect is the view expressed by the Federal Court of India in Raja Prithwi
Chand Lall Choudhary's case (supra) placing reliance on dicta of the privy
council in Venkata Narasimha Appa Row v. Court of Wards [1886 (II) Appeal Cases
660 at 664]. Gwyer, C.J. speaking for the Federal Court observed:
"This
Court will not sit as a court of appeal from its own decisions, nor will it
entertain applications to review on the ground only that one of the parties in
the case conceives himself to be aggrieved by the decision. It would in our
opinion be intolerable and most prejudicial to the public interest if cases
once decided by the court could be re-opened and re-heard: "There is a salutary
maxim which ought to be observed by all courts of last resort Interest reipublicae
ut sit finis litium.
(It
concerns the state that there be an end of law- suits. It is in the interest of
the State that there should be an end of law-suits.) Its strict observance may
occasionally entail hardship upon individual litigants, but the mischief
arising from that source must be small in comparison with the great mischief
which would necessarily result from doubt being thrown upon the finality of the
decisions of such a tribunal as this."
27. In
S. Nagaraj's case (supra) an application was filed by the state for
clarification of the order passed earlier. It was urged by the petitioner that
any modification or recalling of the order passed by this Court would result in
destroying the principle of finality enshrined in Article 141 of the
Constitution. Sahai, J.
speaking
for himself and for Pandian, J. observed:
"Justice
is a virtue which transcends all barriers. Neither the rules of procedure nor
technicalities of law can stand in its way. The order of the court should not
be prejudicial to anyone. Rule of stare decisis is adhered for consistency but
it is not as inflexible in administrative law as in public law. Even the law
bends before justice." The learned judge referring to the judgment of Raja
Prithwi Chand Lall Choudhary's case (supra) further observed:
"Even
when there was no statutory provision and no rules were framed by the highest
court indicating the circumstances in which it could rectify its order, the
courts culled out such power to avoid abuse of process or miscarriage of
justice."
28.
The position with regard to conclusive nature of the precedent obtained in
England till the following practice statement was made by Lord Gardiner, L.C.
in Lloyds Bank, Ltd., v. Dawson and Ors. [1966 (3) All E.R. 68, at p.77] on
behalf of himself and the Lords of Appeal in Ordinary, "They propose
therefore to modify their present practice and, while treating former decisions
of this House as normally binding, to depart from a previous decision when it
appears right to do so." The parameters for filing curative petition are
indicated in the said judgment; and even the writ petitions do not fulfill
these parameters. It is relevant to note that a petition was filed under
Article 32 of the Constitution (V. Mohini Giri vs. Union of India (W.P. (Crl.)
96/2002) wherein prayer was made to issue guidelines as to what would be the
approach where one of the Hon'ble Judges acquits while others confirm death
sentence. The petition was dismissed on 16.8.2002 with the following order:
"This
petition has been filed for issuance of a guideline as to what should be the
appropriate approach in the case where one of the Judges in the Bench of this
Court while hearing an appeal against death sentence, acquits the accused
person. We do not think that the judicial discretion of the Bench hearing the
appeal can be curtailed in any manner by issuing guidelines. This petition is
dismissed accordingly." Further as noted above, in the cases cited to show
that life sentence was imposed in case of acquittal by trial/High Court, for
compelling reasons departure can be made. In the case at hand, one related to
TADA Act, and the two others related to killings on caste grounds.
The
approach necessary in such cases was highlighted while confirming death
sentence. Further, the remedy available (on the logic of Ramdeo Chauhan)
because of difference in view was also highlighted.
Submission
of Mr. Sibal that the logic does not apply to a case of acquittal is clearly
fallacious.
The
review petitions are without any merit and deserve dismissal, which is so
directed.
Back