Madras High Court
The vs Sheikh Habib on 24 May, 2012
Author: M.Venugopal
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24/05/2012 CORAM THE HON'BLE MR. JUSTICE ELIPE DHARMA RAO AND THE HON'BLE MR. JUSTICE M.VENUGOPAL M.P.No.1 of 2012 in H.C.P.No.1498 of 2011 ORDER
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M.VENUGOPAL,J.
The Petitioner (wife of the detenu) has preferred this Miscellaneous Petition seeking review of the order dated 22.02.2012 in H.C.P.No.1498 of 2011 passed by this Court.
2.According to the Petitioner, the order dated 22.02.2012 made in H.C.P.No.1498 of 2011 suffers from errors apparent on the face of the record and therefore, the order passed by this Court calls for a review.
3.It is the plea of the Petitioner that the Division Bench of this Court in H.C.P.No.1498 of 2011 dated 22.02.2012 in paragraph 23 has, inter alia, observed that '... Therefore, according to the learned Public Prosecutor, though the pre-detention representation of the detenu had not been placed before the Detaining Authority, when the very same allegations/averments contained in the pre-detention representation are also found in Crl.O.P.No.18509 of 2011 and the same has been considered by the Detaining Authority, the non consideration of the pre-detention representation will not amount non application of the mind on the part of the Detaining Authority and consequently, it will not vitiate the order of detention' and further, in paragraphs 53 and 56 of the order passed in H.C.P.No.1498 of 2011, two contentions of the Detaining Authority have been rejected to the effect that '.... the explanation of the Detaining Authority is that in view of the huge volume of correspondence received at his office, it would be impracticable to place the pre-detention representations received from the detenus at the time of passing of the detention order' and also the contention that the non consideration of pre-detention representation will not vitiate the order of the detention has not been accepted and this Court, having rejected the contentions of the Detaining Authority in the manner aforesaid, has further accepted the contentions of the authority that he had considered the averments of the anticipatory bail petition and then only passed an order of detention and therefore, the non consideration of the pre-detention representation will not vitiate the order of detention which is not a legally correct one.
4.The stand taken by the Petitioner by drawing the attention of this Court to the observation/finding made by this Court in H.C.P.No.1498 of 2011 dated 22.02.2012 at paragraph 57 and 58 that 'the non placement pre-detention representation dated 06.09.2011 will not amount to non application of mind on the part of the Detaining Authority and therefore, on this ground, the order of detention cannot be set aside' are contrary to the counter affidavit filed by the Detaining Authority.'
5.Yet another contention of the Petitioner is that the finding of this Court in paragraph 58 of the order dated 22.02.2012 in H.C.P.No.1498 of 2011 to the effect that the detention is not vitiated as contents of pre-detention representation is identical to the contents of anticipatory bail application which was duly considered by the Detaining Authority is clearly contrary to the material on record, as stated in para 17 of the counter affidavit.
6.For the purpose of appreciation of the merits of the matter, the averments of the 2nd Respondent made in the counter affidavit at para 17 and 18 are extracted hereunder:
"17.Regarding the contention raised in Grounds-17 of the affidavit, it is submitted that it is not correct to state that false complaint was received at the instance of the higher ups. The contention that the detaining authority had to wait for the out come of the anticipatory bail is also not correct. The averment that an application seeking Anticipatory Bail before the court of law in Criminal proceedings should be treated as pre detention representation is fallacious. I submit that to be a pre detention even if permissible, it should emanate either from the detenu or somebody on his behalf and it should be address to the detaining authority seeking the relief of revoking the ruder of detention or not to pass the order of detention.
18.Regarding the contention raised in Grounds -18 of the affidavit, I submit that to the best of my understanding that there is no pronouncement by Hon'ble Supreme Court in cases of this nature. However assuming otherwise a representation strict to sensu should be emanating from the detenu or on his behalf setting out circumstance prima facie should that no order of detention can be passed against the detenu. I further submit that there is no constitutional mandate under clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. In this case the order of detention was confirmed only on 6.12.2011. Hence the non consideration of the pre detention representation will not vitiate the order of detention."
7.Finally, the Petitioner projects a plea that the oral statement made by the Detaining Authority that the allegations/averments found in the pre-detention representation is also found in the anticipatory bail petitions in Crl.O.P.No.18509 of 2011 and Crl.O.P.No.18511 of 2011 on the file of this Court and the same has been placed before him and considered by him cannot be sustained in the absence of any such recording in the grounds of detention.
8.The substance of the contention of the Petitioner is that the grounds of detention is silent about the fact that the Detaining Authority has considered the averment found in the anticipatory bail petition or either in the counter affidavit, it is stated that he has considered the averments in the anticipatory bail petition and therefore, the above mentioned errors are to be subjected to review by this Court, failing, which it will certainly prejudice the rights and liberties of the detenu.
9.That apart, the Petitioner has taken a ground that the pre-detention representation contained additional facts and issues which were not there in the anticipatory bail applications. Furthermore, it is the categorical case of the Petitioner that right to consider pre-detention representation would include the consideration of entire contents of pre-detention representation and that only partial consideration of representation would vitiate the order of detention.
10.The Petitioner has raised a ground that in the order dated 22.02.2012 in H.C.P.No.1498 of 2011 passed by this Court in paragraphs 62 and 63, errors apparent on the face of record have crept in and draws the attention of this Court to the said paragraphs which run as follows:
"62. The third contention of the learned senior counsel for the petitioner is that in page 14 of the grounds of detention, in English version, and in page 19 of the grounds of detention, in Tamil version, the Detaining Authority has, while referring to the further statement of the complainant-Kalaivanan dated 10.9.2011, stated as if the detenu Dhanasekaran aimed at the head of Kalaivanan and assaulted him with an iron rod but fortunately, he turned and bent his head, thus averting the assault on his head. Whereas in his statement under Section 161 of the Criminal Procedure Code, the complainant Kalaivanan has not stated that the detenu Dhanasekaran attempted to assault him with an iron rod, whereas he had stated that one Govindaraj attempted to hit him on his head with an iron rod. This according to the learned senior counsel would amount to non application of mind on the part of the Detaining Authority. It is sought to be rebutted by the learned Public Prosecutor that this contradiction is a matter for trial and this will not vitiate the order of detention. Further, the learned Public Prosecutor relied on Section 5A of the Act and contended that this is not the only ground relied upon by the Detaining Authority to pass the order of detention, but there are other five grounds which have been relied upon by the Detaining Authority to come to the subjective satisfaction that the detenu is a 'slum grabber' and therefore this ground is severable and the detention order could be sustained on the other remaining grounds.
63. It is no doubt true that the Detaining Authority has committed the above mistake, as contended by the learned senior counsel for the petitioner, but as rightly contended by the learned Public Prosecutor Crime No.1161 of 2011 on the file of R10 MGR Nagar Police Station is not the only ground based upon which the order of detention has been passed and there are five other cases registered against the detenu which have also been relied upon as the grounds for passing the order of detention. It has to be pointed out that Section 5A of the Act has been inserted to save the order of detention if one or more grounds are vague and the order of detention still can be good if anyone of the grounds is deemed to be valid. A reading of Section 5A of the Act shows that when a person had been detained under the order of detention mainly under Section 3 of the Act, which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on aid of such grounds and accordingly, such order shall not be deemed to be invalid or inoperative, merely because one or some of the grounds is or are non-existent or invalid for any other reason whatsoever. Therefore, even if the said contention of the learned senior counsel for the petitioner relating to Crime No.1161 of 2011 is accepted and the said ground relied upon by the Detaining Authority is invalid still as there are five other cases which have been taken into consideration by the Detaining Authority, the order of detention cannot be considered to be invalid. Therefore, we are of the considered view that the said contention of the learned senior counsel cannot be countenanced."
and plead that this Court has failed to notice that only in the said paragraph of the order of detention (Where this erroneous incident has been cited), the Detaining Authority has come to a finding that the said act resulted in a situation which is prejudicial to maintenance of public order and tranquility and as a matter of fact, in the entire grounds of detention, at no other place, any fact giving rise to situation prejudicial to maintenance of public order has been noted by the Detaining Authority.
11.The strenuous plea of the Petitioner is that when this Court has come to the conclusion, while passing order in H.C.P.No.1498 of 2011 dated 22.02.2012, that the Detaining Authority has committed the mistake mentioned in paragraph 62 of the order and when the said fact has wrongly been noted the entire basis of detention of the detenu has been wiped out and as such, the Review Petition has to be allowed to secure the ends of justice.
12.In the counter filed by the 2nd Respondent, it is, among other things, mentioned that the Petitioner cannot have grievance as regards the issue pertaining to pre-detention representation in view of the fact that the same has been considered at length and has been decided by this Court on the facts and circumstances of the case and if the Petitioner is an aggrieved person as against the order passed by this Court in H.C.P.No.1498 of 2011, then, she has to avail the remedy of challenging the said order before the Hon'ble Supreme Court of India and not by way of filing the present Review Petition, which is not maintainable. Further, the Petitioner has not made out any case warranting interference of the order passed by this Court in H.C.P.No.1498 of 2011 dated 22.02.2012, because of the fact that the said order does not suffer from any serious infirmity or illegality in the eye of law.
13.It is the submission of the Learned Public Prosecutor appearing for the Respondents that the Petitioner has deliberately and advisely not chosen to raise the grounds as raised in H.C.P.No.571 of 2012 in her earlier H.C.P.No.1498 of 2011 and that review is permissible only in case of any patent mistake or glaring omission or like any grave error committed by a Court of Law and review is impermissible for rehearing of the case.
14.Also, it is the contention of the Learned Public Prosecutor appearing for the Respondents that a power of review is not to be confused with appellate power which may enable an Appellate Court to correct the errors committed by the original Court.
15.Added further, the Learned Public Prosecutor projects an argument that the repetition of same arguments are not to be permitted by a Court of Law under the guise of review. Furthermore, it is contended by the Learned Public Prosecutor that 'mistake' apparent on the face of record cannot mean an error which has to be fished out and searched.
16.The Learned Public Prosecutor appearing for the Respondents, to lend support to his contention that Review Miscellaneous Petition is not maintainable in law, cites the following decisions:
(a)In Sow Chandra Kante and another V. Sheikh Habib, [(1975) 1 Supreme Court Cases 674 at page 675], the Hon'ble Supreme Court has observed as follows:
"Once an order has been made by the Supreme Court, a review thereof must be subject to the rules and practice of the Court 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."
(b)In Aribam Tuleshwar Sharma V. Aribam Pishak Sharma and others [AIR 1979 Supreme Court 1047], it is held hereunder:
"It is true there is nothing in Article 226 of the Constitutence preclude a High Court from exercising the power of review which iuheram in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors committed by it. But, there are definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due digilence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. AIR 1963 SC 1909, Disting."
(c)In M/s.Northern India Caterers (India) Limited V. Lt.Governor of Delhi [(1980) 2 Supreme Court Cases 167] at page 171 in paragraph 8, it is observed as follows:
"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, 948]. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. G.L Gupta v. D.N. Mehta [(1971) 3 SCR 748, 750]. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice ON Mohindroo v. Dist. Judge, Delhi, [(1971) 2 SCR 11, 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 O. XLVII, Rule 1 of the CPC and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, 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. Sheikh Habib, [(1975) 3 SCR 933."
(d)In Lily Thomas etc. V. Union of India and others, [AIR 2000 Supreme Court 1650] in paragraphs 52 and 55, at pages 1662 to 1664, it is observed thus:
"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 Thakersh and Ors. v. Pradyunman singh ji Arjun singh ji 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. If 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 miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj and Ors etc. v. State of Karnataka and Anr. etc. 1993 Supp.(4) SCC 595 held:
"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 Law Choudhury v. Sukhraj Rai 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.
... neverthless, if by misprision in embodying the judgments, by 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 visualise 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 XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XL VII 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 XL 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."
55.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 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 Art. 136 or Art. 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."
(e)In T.Laxma Reddy V. Government of A.P. Rep. By its Secretary to Home Department and others, [2010 (1) ALD 360], it is held that 'there must be existence of an error apparent on the face of the record for the Court to exercise of its power of review etc.'
17.In this Petition, both the Counsel have advanced their arguments relying on the principles of review known to civil proceedings. As could be seen above, all the judgments relied on by the Learned Public Prosecutor appearing for the Respondent/State are with regard to the principles of review enunciated in civil proceedings. Therefore, the principles laid down thereunder will have no application to the present proceedings, in view of the fact that an application for a Writ of Hebeas Corpus is criminal in nature and it is a well settled principle of law that review is not amenable to criminal jurisprudence. Therefore, without going into various arguments advanced on the part of either side, this Petition is dismissed as not maintainable.
Sgl