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Civil ProcedureSupreme Court of India

Rajendra Khare v. Swaati Nirkhi & Ors.

Review Petition (Criminal) · 2021 INSC 45Decided 28 Jan 2021
Review Petition (Criminal) No. 671 of 2018 in Transfer Petition (Criminal) No. 262 of 2018, with Contempt Petition (C) No. 1233 of 2019
Justice Ashok Bhushan · Justice Indu Malhotra

Background

This order allows a review and reopens a transfer petition; it is not a final judgment on the transfer. Rajendra Khare had lodged an FIR against several persons; after a charge-sheet and summons were issued, the accused persons obtained an order from the Supreme Court transferring the trial from Delhi to Allahabad, but Khare, the original complainant/informant, was never made a party to that transfer petition and so had no chance to oppose it. His later application to recall that order was summarily dismissed, after which he filed this review petition arguing a breach of natural justice.

Decision Breakdown

This order allows a review and reopens a transfer petition; it is not a final judgment on the transfer. The Court held that a review petition is a distinct statutory remedy from an application for recall/clarification, so the earlier dismissal of his recall application did not bar this review. On merits, it found that the original transfer order had been passed at the preliminary hearing stage without issuing the mandatory notice required under Order XXXIX Rule 2 of the Supreme Court Rules, 2013: an "error apparent on the face of the record." The Court allowed the review, recalled its earlier order transferring the trial, revived the transfer petition, and impleaded Khare as a respondent so the matter can be heard afresh with all parties present.

Lesson Learnt

A person directly affected by a court order who was wrongly left out as a party can seek review on the ground of an apparent procedural defect (such as a missing mandatory notice), even if an earlier informal application to "recall" the same order was rejected: review and recall are legally distinct remedies.

Rajendra Khare v. Swaati Nirkhi & Ors. – Legal Case Shots | LegalAware