The Division bench comprising of Justices Ashok Bhushan and Indu Malhotra at the Supreme Court, in the matter of RajendraKhare v. SwaatiNirkhi held that Dismissal of an application for recall of a judgment does not take away the right to file review petition against the judgment.
Review is a proceeding, which exists by virtue of the Statute, the Court underscored, and rejection of a miscellaneous application (MA) for recall of judgment will not take away the right of the review petitioner to file review under Order XLVII Rule 1 of the Supreme Court Rules of 2013.
The review petitioner was the complainant who lodged a First Information Report in 2016 at MangolPuri Police Station, Delhi against respondents with respect to offence under Section 389 (Putting person in fear of accusation of offence, in order to commit extortion) of Indian Penal Code.
The Supreme Court examined Article 137 of the Constitution and Order XLVII of the Supreme Court Rules which deal with review and drew the conclusion that review in a criminal proceeding is permissible on the ground of error apparent on face of record.
It went on to note that the submission by the respondents was that in view of the fact that miscellaneous application was rejected by the Court, the review petition is not maintainable.
It, therefore, ruled that the review petition was maintainable. On the merits of the petition, the Court ruled that the petitioner should have been heard before any order was passed in the transfer petition.Thus, the review was allowed and the Court ordered that transfer petition be revived and heard again after making the petitioner a party.