The Review – An Exposition
Author: Pasapala Syed Mustaq
Abstract
India is one of the democratic countries in the world; possesses its own written document drafted after proper scrutiny over other country’s documents with elaborate discussions to get the full-fledged document for the welfare and to render justice to the people. India has its sacred text i.e., Constitution of India, to which all should obey. It has also Substantive and Procedural Law. The major focus of this paper revolves around the concept of “Review”. Firstly, this paper will elucidate the concept of Review in the Code of Civil Procedure and secondly on the provision which expressly bars review and finally throws light on the Constitutional law how the provisions allow all the matters to be decided under the concept of Review and Curative Petition.
Exordium
India has its sacred text viz. The Constitution of India, to which all should obey and it also has Substantive and Procedural Law. This paper's major focus is on the topic of “Review’’ in Procedural and adjective laws; Code of Criminal Procedure (for short “Crpc”) and Code of Civil Procedure(for short “CPC’’) and Constitutional Law. This Article flows through the concept of Review in three laws namely: CPC, Crpc, and Constitutional Law. The concept of Review has a public eye to get Justice even after the judgment has been pronounced. The concept of Curative comes under the concept of Review. It is also said to be a Second Review and also the last resort to a litigant or an aggrieved party to the Judgment decided by the courts in India.
CIVIL LAW- Code of Civil Procedure
The term “Civil’’ has been defined in the case of S.A.L. Naryana vs Ishwarla[1] which deals with private rights and provides remedies to the citizens. By adding the word “Civil’’ in “Civil Law’’ it can be stated that the law deals with the private rights of the parties and provides remedies and damages to the parties, and also decides the civil liability such as damages, compensation, and specific performance. The term ‘Private rights’ in CPC, infers the right which can be enjoyed by such person alone,and neither can be enjoyed by any other person nor deprive his or her of their right to enjoy. For instance, when a person constructs a house including a pathway to walk and parking space, the other party cannot object to it as government land/his land. When the former party has built such a house in his land, he possesses the sole right to enjoy such kind of disputes are called private right disputes. By taking into account the above example, the former party (Owner) can approach the court to restrict the other party (latter) who is demanding the land of his own or the government, to pass a permanent Injunction directing the latter party not to enter his (former parties) premises. This part is called providing a remedy to the private right of the party.
In India, civil law is codified as CPC, 1908. Before the said code there was no uniform code to deal with civil liabilities. During the British regime also known as the Colonial regime, the first uniform code was established in the year 1859 but that did not apply to the Presidency court. Subsequently, there were amendments, and the code of the years 1877, 1882 was made applicable to then British India. There were many defects in the code and eventually a new code was enacted in the year 1908 which was named Code of Civil Procedure, 1908. It has evolved into a feasible code after major amendments to it in the years 1951, 1956, 1976, 1999, and 2002.
The object of the Code of Civil Procedure:
The core object of the CPC is to consolidate and amend the procedural laws, and so it is known as consolidated code. In the case of Alka Gupta vs Narender Kumar Gupta[2], the Apex court summarized the object of the CPC as it was exhaustive. It is a compilation cum enumeration of the principle of natural justice to the proceedings of the Civil Court and following that it was also held that the entire object of CPC is to ensure adjudication by the court of law by providing appropriate opportunities at appropriate stages. The CPC has provided extensive Sections including order and rules to adjudicate the disputes about privacy rights and also government-related disputes with prior notice.
REVIEW:
The Paper’s paramount focus is on the Review Jurisdiction exercised by the Civil Court according to CPC. The Review Jurisdiction can be exercised by invoking Section 114 of CPC read with(r/w) Order 47 of the Code. In common parlance,a Review is said to be reconsideration or a re-examination. And according to the judgments by the Top Court of India, in Maharajah Moheshwar Sing vs Bengal Govt[3]. it is opined that Review is nothing but a re-examination of the judicial verdict given by the same judge in the same court. It also means that if the Judge passes judgment or order, he can re-examine the same order or judgment by exercising the powers under Review jurisdiction if the aggrieved party to such order or judgment has applied for the same. This power can help the judge who has passed the judgment to rectify his mistake or error and not to repeat the same in further cases. An application for a Review of a Judgment is governed by Order 47 Rule 1 of CPC which laid down the grounds to apply. The grounds are as follows:
1. Discovery of new and important matter or evidence (or)
2. Mistakes or errors apparent on the face of the record.
3. Any other sufficient grounds, sufficient grounds include as follow while granting review[4]:
where the statement in the judgment is not correct, or
where the decree or order has been passed under a misapprehension of the true state of circumstances or
where a party had no notice or fair opportunity to produce his evidence or
where the court had failed to consider a material issue, fact or evidence or
where the court has omitted to notice or consider material statutory provision or
A ground that goes to the root of the matter and affects the inherent jurisdiction of the court or
Misconception by the court of a concession made by an advocate or
Where a party’s evidence has been closed owing to a misconception on the part of his pleader or
A manifest wrong has been done and it is necessary to pass an order to do full and effective justice.
The aggrieved party can apply for the review, where the aggrieved party or person is a person who is affected by the said judgment or order passed. As given in the case of Kabari (P) Ltd vs Shivnath Shroff[5]the definite legal meaning to the word ‘aggrieved person’ is as follows:
‘A person is said to be aggrieved, who has suffered a legal grievance or against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affect his title of something. For instance, in a suit, if the suit is dismissed then it is said that Plaintiff is an aggrieved party to the suit and if the suit favors the plaintiff, then the defendant will say be an aggrieved party. Any person who is not affected directly will not be considered to be an aggrieved person or party according to the suit as stated in Gopal Bandhu Biswal vs Krishna Chandra Mohanty & Others[6]and the person who is neither a party to the proceeding nor a decree-holder cannot apply for review as held in Bharat Singh v Firm Sheo Pershad Giani Ram[7]but the third party can file review application if he proves that he is aggrieved by the said judgment or order as held in Shivdeo Singh v State of Punjab[8].
The time limit has prescribed in Article 124 of the Limitation Act to file the review petition is thirty days (30 days) from the date of the decree or order[9]
CRIMINAL LAW/CODE OF CRIMINAL PROCEDURE CODE:
The core object of the Crpc is as follows:
It provides machinery for the investigation of a crime and to collect the evidence
It also helps to apprehend suspected criminals.
It helps to determine the guilt or the innocence of the accused person.
The code also ensures to have a fair trial and speedy justice to the accused and victims as well.
The Crpc allows the Appeal, revision, and references but bars the Review jurisdiction. Section 362 of the code stated as follows:
Court not to alter judgment: Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error[10].The Review has been expressly barred in the code of Criminal Procedure. The Apex Court in R. Annapurna vs Ramadugu Anatha Krishna Sastry[11]held in Para No 5, that High Court has no power to recall or review its own decision. Following this yet another case was decided by the Top Court in Sunita Jain vs Pawan Kumar Jain[12] where it was held that it is settled law that there is no review power in the Crpc and hence, the court which passes an order or a judgment cannot review its decision. This is because once the criminal Court has decided the matter be it acquittal or conviction, it considers it to be final. After all, it is not a private wrong as likely provided under the CPC. The offense committed comes under the ambit of the Indian Penal Code and prosecution. Under the Constitution of India, according to Article 20(2), once the person has been prosecuted, he/she cannot be prosecuted again for the same offense. Thus, while deciding a criminal matter the magistrate should be very cautious as the judgment cannot be altered like that of a civil matter. The Courtin Ajay Singh vs State of Chhattisgarh[13], by relying on the term “Court not to alter judgment’’ under Section 362 held that once the judgment is pronounced by the court, the said decision does not conceive any kind of alteration. Another term “except any clerical or arithmetic error’’ as prescribed in the Section has been defined by the Court in the case of Sooraj Devi vs Pyare Lal[14]. It was held that Clerical or arithmetical error is an error occasioned by accidental slip or omission by the court. An arithmetical error is said to be a mistake of calculation whereas a clerical error is an error in typing or writing. In the case of Surendar Singh vs the State of Bihar[15], CJM in its first order after recording the final reports of the prosecution passed an order stating the reason as truth undetected thus, CJM dismissed the complaint. The said CJM again on the same date passed a subsequent order taking cognizance of the accused under Sections 302/ 201/34 of the Indian Penal Code. Thus, the Apex Court held that it amounts to review to the earlier order which is barred under the Code of Criminal Procedure and it is also bad in law and hence quashed the order. There might arise a doubt among the readers about the consequence when the judge hasn’t signed the judgment, and the same was decided by the Supreme Court in KushalbhaiRatanbhai Rohit vs State of Gujarat[16], where it was held that once the judge delivers a judgment in an open Court but does not sign the said judgment, it will not be considered as a judgment and thus the same can be reviewed or altered. Therefore, a judgment shall be reviewed or altered before it is signed by the Judge. An interesting part of the Crpc which shall be cited is the concept of “Recall” which came into the limelight alongside the concept of ‘Review’ through the case of Giridhirlal vs Pratap Rai Mehta[17]the Karnataka High Court has stated that Section 362 bars only an alteration of the judgment but allows to recall the earlier judgment. It opined as follows:
S.362 is based on a universal principle of law when a matter has been finally disposed of by a court, the court is in the absence of a direct statutory provision, functus officio and it cannot entertain a fresh prayer for the same relief until and unless the former judgment or final order disposing of a case set aside. It is this cardinal principle that has been incorporated in S.362 of the Code. (Para-13)
There is a vital and significant difference between the words ‘alter’, ‘review’, and ‘recall’. S.362 puts a complete bar for altering or reviewing a judgment or final orderon merits and the only power given to the court is that it can correct a clerical or arithmetical error. The said Section does not impose any prohibition for recalling an order. (Paras-20 and 21) and stated that there is no bar contained in Section 362 or any other provision in code to recall the order.
Yet, in another Rajasthan High Court case of Habu vs State of Rajasthan[18], it was held that Power to recall is different from the power to altering or reviewing the judgment. The said Karnataka High Court had a different view of the prior judgment, in the case of Hamanath vs State of Karnataka[19], where it was held that Inherent powers of section 482 Crpc cannot be exercised when it is especially prohibited by the code. Section 362 of the code specially prohibits the alteration of the judgment hence, Section 482 cannot be said to override section 362. By reading both sections, it is clear that the court has no power to recall or review its order.
Constitution of India:
The Constitution of India has given wide fundamental rights and duties to the citizens of India. One of the rights emphasized by the Constitution vide Article 137 is Review Jurisdiction. According to Article 137[20], Subject to the provisions of law or rules made by the parliament under Article 145[21] the Supreme Court has the power to review its orders or judgments. The Apex Court while exercising the power given by the Constitution vide Article 137, can also adjudicate or decide the review matters of both the criminal and civil matters. But while deciding criminal matters Review is expressly barred by the code under Section 362 of Crpc. In the case of G.L.Gupta vs D.N.Mehta[22], the Apex Court modified the sentence to imprisonment on the ground that the provision of the foreign act was not brought to the notice of the Supreme Court while deciding the appeal and held that Review is permitted when relevant statutory provision is not brought to the notice of the court while deciding the appeal of such reviewed case. The Supreme Court while exercising the power under Article 137 has the discretion to hear the matter in open court or to dispose of it depending on the grounds laid down. This proposition was held in State of TN vs Animal Welfare Board[23], the Apex Court can substitute the death sentence to life imprisonment or imprisonment by exercising Article 137 of the Constitution of India. In the present days, a Review Petition shall be filed by invoking Article 137 of the Constitution of India when the Review petition is filed by all accused. In the case of Nirbhaya convicts, the court has stated that the review petition filed by the four-row convicts shall be dismissed[24]. In a famous case based on religious matter i.e. Sabarimala, the judgment delivered in Indian Young Lawyers Association vs State of Kerala[25]in favor of women, who shall be allowed to enter into the temple but there were several review petitions filed to re-examine the said judgment again and it has been referred to a larger bench to decidebased onthe question of law.[26]Yet in another most agitating case of Subhash Kashinath Mahajan vs The State of Maharashtra,[27]the Apex Court issued guidelines for an arrest of the public servant, which made the community as downtrodden who started agitated all over India and the Parliament by way of the amendment into SC/ST Prevention of Atrocities Act enacted a provision Section 18A to overturn the guidelines given in the Kashinath Mahajan Judgment. Many review petitions were filed challenging the above judgment. In the case of Prathvi Raj Chauhan vs Union of India,[28] the Amendment act of 2018 was challenged. Further, the Apex Court clubbed both review petitions challenging the amendment and finally upheld the 2018 Amendment Act, Section 18A of the said amendment which overturns the Kashinath Mahajan Judgment.
To file the review petition in the Supreme Court the party shall comply with the Supreme Court Rules, 1966 which prescribed thirty days (30 days) time to file the petition. In case of a delayed petition, the court has opined in the State (CBI) /S.P.E. vs P. V. Narasimha Rao[29]that an inordinate delay of 179 days for filing the petition on the ground that ‘paucity of staff’ cannot be condoned.
Curative Petition:
The concept of a Curative petition has been brought to restore the miscarriage of justice, to prevent abuse of process, and to endure justice even after final judgment has been delivered. It has been held by the Courts as a Second review of the final judgment. In the present days, the Supreme Court has entertained the Curative petitions in the cases like Nirbhaya case[30] and dismissed said petitions as it is not followed the principles laid down in Rupa Ashok Hurra case judgment. In the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr,[31] the concept of the curative petition has laid the foundation; the main object of this petition is to prevent the abuse of court process and to cure grave miscarriage of justice and the apex court held that it might arise in rarest of rare cases and also gave the aggrieved party to file this petition even after the dismissal of the review petition. The grounds laid down in this judgment are as follows:
1. The petitioner who files the curative shall show that there is a violation of the principle of natural justice
2. That the petition was dismissed in circulation
3. The petition shall be certified by the Senior Advocate
4. The petition will be passed to the senior-most judges and to the judge who passed such impugned judgment.
5. The majority of the judges should agree that the said petition shall be placed for hearing, then it shall be sent back to the same judge who has delivered the judgment.
6. After taking into consideration, if the plea lacks merit the court has discretionary power to award exemplary costs against said petitioner.
This case is known to be a landmark on the concept of the Curative petition. The grounds laid down, in this case, will be taken into consideration when the curative petitions are filed. One of such petitions filed by the Nirbhaya convict Akshay Kumar Singh has been dismissed by the Apex Court as it is not within the parameters of the law laid down in the Rupa Ashok Hurra case.
Though the Crpc barred entertaining the Review petition as prohibited by Section 362 of the code, the Constitution of India vide Article 137 allowed the Review petitions and also given the chance to rehear the matter by way of Curative petition in all matters including criminal matters. The aggrieved party can exercise the right as provided under the constitution to file a review petition even though the statutory right has been barred.
Conclusion
The author by concluding the paper would like to state that, the review jurisdiction can be exercised in all the laws be it procedural and substantive law. Though the review jurisdiction is expressly barred in Crpc, the same is allowed vide Article 137 of the Constitution of India in the judgments decided by Supreme Court. Also, the concept of Curative Petition has come to light by Rupa Ashok Hurra's judgment to render justice and to leave the aggrieved party to feel that he has exhausted all rights which the party possesses as it happened with the Nirbhaya accused. The author would like to make a point here that, instead of making the party all along to go to the Supreme Court, it led the legislature to make a provision in Crpc empowering the High Court to review its judgment. When there an analogous provision in CPC, how can it not be in Crpc? As there is no provision in Crpc for the district courts/high courts to review their judgment, the parties forced to knock on the door of the Apex Court by invoking Article 137 of the Constitution of India. The author further would like to state that, when there is a cry, the justice be taken to doors of the people, the absence of provisions in Crpc is stalling the above adage of justice at the doorstep of the people, it is the high time for the legislation to ponder over this aspect.
References:
[1]S.A.L. Naryana vs Ishwarla,AIR 1965 SC 1818 [2]Alka Gupta vs Narender Kumar Gupta (2010)10 SCC 141 [3]Maharajah Moheshwar Sing vs Bengal Govt (1857-60) 7 Moo IA 283 [4] C.K. Takwani, CIVIL PROCEDURE with Limitation Act, 1963, Page no. 571, Eighth Edition- Reprinted 2020 [5]Kabari (P) Ltd vs Shivnath Shroff (1996) 1 SCC 690 [6]Gopal Bandhu Biswal vs Krishna Chandra Mohanty & Others (1998) 4 SCC 447 [7]Bharat Singh v Firm Sheo Pershad Giani Ram (AIR 1978 Del 122) [8]Shivdeo Singh v State of Punjab AIR 1963 SC 1909 [9]https://www.advocatekhoj.com/library/bareacts/limitation/division3part1.php?Title=Limitation%20Act,%201963&STitle=Applications%20in%20specified%20cases)) [10]https://indiankanoon.org/doc/789330/ [11]R. Annapurna vs Ramadugu Anatha Krishna Sastry (2002) 10 SCC 401 [12]Sunita Jain vs Pawan Kumar Jain (2008) 2 SCC 705 [13]Ajay Singh vs State of Chhattisgarh (2017) 3 SCC 330 [14]Sooraj Devi vs Pyare Lal (1981) 1 SCC 500 [15]Surendar Singh vs State of Bihar (2005) 12 SCC 361) [16]KushalbhaiRatanbhai Rohit vs State of Gujarat (2014) 9 SCC 124 [17]Giridhirlal vs Pratap Rai Mehta1989 SCC Online Kar 165 [18]Habu vs State of Rajasthan (1986) SCC Online Raj 54 [19]Hamanath vs State of Karnataka 2017 SCC Online Kar 3708 [20]https://indiankanoon.org/doc/249731/ [21]https://indiankanoon.org/doc/1537130/ [22]G.L.Gupta vs D.N.Mehta (AIR 1971 SC 2162) [23]State of TN vs Animal Welfare Board (AIR 2016 SC 5522) [24]ANI, SC dismisses convict's plea for review of death penalty in Nirbhaya case , The Economic Times, Jan.20,2020:8:50PM IST https://economictimes.indiatimes.com/news/politics-and-nation/sc-dismisses-special-leave-petition-of-convict-in-nirbhaya-case/articleshow/73429908.cms [25]Indian Young Lawyers Association vs State of Kerala (2019) 11 SCC 1 [26]APOORVA MANDHANI, SC justifies Sabarimala reference to larger bench, says it can decide its own jurisdiction, The PRINT,11th May,2020, 6:30 PM:IST [27]Subhash Kashinath Mahajan vs The State of Maharashtra MANU/SC/0275/2018 [28]Prathvi Raj Chauhan vs Union of IndiaMANU/SC/0157/2020 [29]State (CBI) /S.P.E. vs P. V. Narasimha Rao (2001) 9 SCC 249 [30]PTI, SC dismisses curative plea of Nirbhaya case convict, The Economic Times, Jan,30,2020, 2:28 PM:IST https://economictimes.indiatimes.com/news/politics-and-nation/sc-dismisses-curative-plea-of-nirbhaya-case-convict/articleshow/73763928.cms?from=mdr [31]Rupa Ashok Hurra vs. Ashok Hurra and Anr (2002) 4 SCC 388