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CASE NO.:

Review Petition (crl.) 497 of 2002

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

PETITIONER:

Devender Pal Singh

RESPONDENT:

State, N.C.T. of Delhi and Anr.

DATE OF JUDGMENT: 17/12/2002

BENCH:

B.N. AGRAWAL & ARIJIT PASAYAT.

JUDGMENT:

JUDGMENT

ARIJIT PASAYAT, J.

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

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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

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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

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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)

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"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

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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

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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

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(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

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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

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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.