TaxTMI 
TaxTMI 
2004 (5) TMI 629
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....e. It would be appropriate to first deal with application filed by the State of Gujarat. 2. The reasons for making this application primarily are that the direction for fresh trial outside the State of Gujarat is unwarranted, per incuriam being not permissible in law, in violation of principles of natural justice, without consideration of real factual scenario, without specific prayer in that regard and reflect adversely on the credibility of the entire judiciary and administration of the State. 3. Mr. Mukul Rohatgi, learned senior counsel appearing for the applicant - State submitted that the direction given for transfer outside the State of Gujarat is not in accordance with law. According to him, such a direction could only have been given on a petition filed under Section 406 of the Code of Criminal Procedure, 1973 (in short the 'Code') and not otherwise. Strong reliance is placed on a decision of this Court in A.R. Antulay v. R.S. Nayak and Anr. 1988 CriLJ 1661 . Emphasis is laid on the observations at pages 729 and 730 paragraphs 204 and 206 respectively. It was submitted that even by exercise of power under Article 142 of the Constitution of India, 1950 (in shor....
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....urt may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed." 6. As noted by a Constitution Bench of this Court in P.N. Eswara Iyer and Ors. v. Registrar, Supreme Court of India : [1980] 2 SCR 889, Suthendraraja alias Suthenthira Raja alias Santhan and Ors. v. State, through DSP/CBI, Chennai 1999 CriLJ 4587, Ramdeo Chauhan alias Raj Nath v. State of Assam 2001 CriLJ 2902, and Devender Pal Singh v. State, NCT of Delhi and Anr. 2003 CriLJ 918, notwithstanding the wider set of grounds for review in civil proceedings, it is limited to 'errors apparent on the face of the record' in criminal proceedings. Such applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with great sense of responsibility as well. 7. In Delhi Administration v. Gurdip Singh Uban and Ors. (2000) 7 SCC 296 it was held that by describing an application one for "clarification" or "modification" though it is really one of review a party c....
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....id paragraph it has been earlier stated that prayer for transfer outside the State was "opposed by the State". If the former plea does not amount to false statement, probably nothing would. The averment that the point was "not permitted to be argued", when on the same breath it is stated that the prayer was "opposed" really shows the extent of falsehood to which the applicant-State has gone and demonstrate the deterioration and falling standards in preparation and filing of papers in Court. Though we could have proceeded against the person on more than one counts, we only pity him for offering himself to be a scapegoat apparently for reasons best known to him, which at any rate could not be genuine or ethical whatsoever. The stand that there was no opportunity granted to the State is further falsified in view of what is stated in para 25 of the judgment (page 388 of SCALE). Even that apart opportunity before Courts are to be sought and availed of and there is no need to invite them to do so and grievance, if any, could be made in this regard only when sought for but rejected by the Court. 10. The decision in A.R. Antulay's case (supra) has really no application to the facts ....
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....has no relevance or application to the present case and the reference to it is wholly inappropriate. Supreme Court Bar Association's case (supra) related to the scope of power under Article 142 of the Constitution and pertained to the authority of this Court to punish an advocate for professional misconduct and not merely to punish him for contempt in respect of which only the main matter itself was before this Court. The powers under Article 142 though considered to be of very wide amplitude are complementary, and supplementary in nature available no doubt to prevent injustice and to do complete justice between parties in the pending litigation. The ratio in that case has no relevance to the present case and it would only justify the course adopted to prevent injustice and do complete justice between parties, as an inevitable consequence of the decision taken in the main appeal itself. The direction given in the present case for transfer though keeping in view normal principles governing claims for transfer was really in exercise of powers as an Appellate Court with plenary and unlimited powers to do justice while dealing with an appeal under Article 136 of the Constitution an....
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....eally of no consequence. The Writ Petition (Crl.) 109 of 2004 is stated to have been filed on 31st July, 2003 and SLF (Crl.) 3770 of 2003 in August, 2003. The appeal before the Gujarat High Court by the State was filed on 7.8.2003, amended twice as noted in the judgment itself. SLP (Crl.) 3770 of 2003 was filed against the judgment of the trial Court. SLP filed by NHRC was treated as one under Article 32 of the Constitution. This Court as the Appellate Court dealing with the judgments of the Trial Court and the Appellate Court, exercising plenary powers under Article 136 of the Constitution, while directing re-trial has ample jurisdiction to fix the place or the Court which should undertake such exercise, keeping in view the needs of justice in a given case with the object of ensuring real, substantial due and proper justice, and that too as an inevitable and necessary corollary of the decision to set aside the judgments of the Courts below. When the appeals were directed to be listed for hearing by constituting this Bench as specially designated by the Hon'ble CJI in exercise of his prerogative, and the proceedings before the other Bench presided over by the Hon'ble CJI wa....
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....isposal have to be soberly read with objectivity and not out of context or even as a provision of an act or rule, with pre-conceived notions apparently exposing virtually ones' own hidden desires or agendas, if any. If only this Court intends to castigate or condemn anyone, who deserved such treatment, be it an institution or authority or incumbent in office, there is no need for it to labour on an excuses to do so indirectly. The monstrosity of the manner in which the Courts below dealt with the matter, though called for stronger and severe handling, we desisted from doing so, keeping in view a fond hope that all those concerned would at least attempt to show better performance, greater circumspection and desired awareness and dispassion to do real, effective and substantial justice. 15. Another aspect which throws considerable doubt about the bonafides of the State Government and its true colours is the veiled threat of legal action for changed statements and credibility of Zahira as a witness. It sounds more like a stand of the defence and not that of the prosecutor. Reading of the statements in this regard gives an impression as if in the eyes of the State Zahira is the ....