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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL M.P.NOS.16673-16674 OF 2016 & CRIMINAL M.P. NOS.16675-16676 OF 2016

IN REVIEW PETITION (CRL.) NOS.192-193 OF 2011

IN  CRIMINAL APPEAL NOS.1396-1397 OF 2008

VIKRAM SINGH @ VICKY  WALIA AND ANR.     … APPLICANTS/

     PETITIONERS VS.

STATE OF PUNJAB AND ANR.      … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Delay  condoned.  These  criminal

miscellaneous petitions have been filed by the

applicants  for  reopening  the  Review  Petition

(Crl.) Nos. 192-193 of 2016 in Criminal Appeal

Nos.1396-1397  of  2008  on  the  basis  of

Constitution  Bench  judgment  in Mohd.  Arif

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alias Ashfaq versus  Registrar, Supreme Court

Of India And Others, 2014(9) SCC 737, by which

judgment  liberty  was  granted  to  those

petitioners whose review applications seeking

review  of  judgment  of  this  Court  confirming

death sentence were rejected by circulation but

death sentences were not executed.

2. Both the applicants Vikram Singh @ Vicky

Walia and Jasvir Singh @ Jassa were tried for

offences under Section 302, 364A, 201 and 120B

IPC. The trial court vide its judgment dated

20th December,  2016/21st December,  2016

convicted both the applicants as well as one

Smt. Sonia wife of Jasvir Singh and awarded

death sentence to all the three accused under

Section  302  and  364A  IPC.  Criminal  Appeal

No.105-DB of 2007 was filed before the High

Court by all the accused against the judgment

of Sessions Judge, Hoshiarpur. Murder Reference

No. 1 of 2007 was also made by the Sessions

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Judge  before  the  High  Court  seeking

confirmation  of  death  sentence.  Both  Murder

Reference  No.1  of  2007  as  well  as  Criminal

Appeal  No.105-DB  of  2007  were  heard  and

disposed of by a common judgment of the High

Court dated 30.05.2008. The High Court accepted

the Murder Reference No.1 of 2007 and confirmed

the death sentence awarded by the trial court

resultantly Criminal Appeal No.105-DB/2007 was

dismissed.  Aggrieved  by  the  judgment  of  the

High  court  dated  30.05.2008  Criminal  Appeal

Nos.1396-1397  of  2008  were  filed  by  the

accused. This court heard the criminal appeals.

Two Judge Bench of this Court by its judgment

dated 25.01.2010 dismissed the criminal appeals

of Vikram Singh and Jasvir Singh whereas death

sentence  awarded  to  Smt.  Sonia,  the  third

accused was converted into life imprisonment.

Vikram  Singh  and  Jasvir  Singh  filed  Review

Petition  (Crl.)  Nos.192-193  of  2011  which

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review petitions were dismissed by circulation

vide order dated 20.04.2011 by two-Judge Bench

which had heard the criminal appeals on the

ground of delay as well as on merits. As noted

above after the Constitution Bench judgment of

this Court in  Mohd. Arif alias Ashfaq (supra)

Criminal M.P.Nos.16673-16674 of 2016 and 16675-

16676 of 2016 were filed by the applicants for

reopening the Review Petition (Crl.) Nos.192-

193 of 2011.   

3. Learned  counsel  for  the  parties  were

permitted to advance their oral submissions on

24.10.2016 in support of Review Petition (Crl.)

Nos.192-193 of 2011.

4. We have heard Shri K.T.S. Tulsi, learned

senior  counsel  appearing  for  Vikram  Singh

whereas Shri Tripurari Ray has been heard for

applicant  No.2.  Shri  V.  Madhukar,  learned

Additional Advocate General has been heard for

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the State of Punjab and Haryana and Ms. Anvita

Cowshish, learned counsel for complainant.

5. The applicants by their review petitions

are  seeking  review  of  the  judgment  of  this

Court  dated  25.01.2010  by  which  judgment

criminal appeals filed by the applicants were

dismissed  and  death  sentence  awarded  by  the

trial court and affirmed by the High Court was

maintained by dismissing the appeals.  

6. Before  we  proceed  to  examine  the  review

petitions, it is necessary to note the ambit,

scope and parameters of the review jurisdiction

of this Court.

7. Article 137 of the Constitution of India

provides for review of judgments or orders of

this Court in following words:

“137. Review of judgments or orders  by  the  Supreme  Court.— Subject to the provisions of any law  made  by  Parliament  or  any rules made under Article 145, the Supreme Court shall have power to

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review any judgment pronounced or order made by it.”

8. Order  40  of  Supreme  Court  Rules,  1966

deals  with  the  review,  Rule  1  of  which

provides:

“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 47 Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.”

9. This  Court  has  constitutional  power  to

review its judgment as granted by Article 137

of  the  Constitution  which  is  subject  to

provisions of any law made by Parliament or any

Rules made under Article 145. Under Article 145

the Supreme Court has framed Rules, 1966 as

noted  above.  As  per  Rule  1  of  Order  40  an

application for review in a criminal proceeding

can be entertained on the ground of an error

apparent on the face of the record.

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10. Granting power of review to this Court by

the  Constitution  is  in  recognition  of  the

universal principle that the power of review is

part of all judicial system. Rule 1 of Order 40

of Supreme Court Rules, 1966 provides for the

procedure  and  manner  in  which  the  power  of

review  can  be  exercised  by  this  Court.  The

ambit  and  scope  of  power  of  review  of  this

Court has come up for consideration time and

again before this Court. Justice Krishna Iyer

in  Sow Chandra Kante and another vs. Sheikh

Hai, (1975) 1 SCC 674, held that to review of a

judgment of this Court are subject to the rules

of the game and cannot be lightly entertained.

Explaining the scope and ambit of the review

jurisdiction  of  this  Court  following  was

stated:

“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

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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.”

11. As noticed above although Rule 1 of Order

40 prohibits filing of review application in a

criminal  proceeding  except  on  the  ground  of

error apparent on the face of the record. The

Constitution Bench of this Court has occasion

again to consider the ambit and scope of review

jurisdiction  in  P.N.  Eswara  Iyer  and  others

vs. Registrar, Supreme Court of India, (1980)

4 SCC 680.  In the above case Order 40 Rule 3

as amended in 1978 was under challenge. In the

above  context  this  Court  had  occasion  to

consider contour of the review jurisdiction and

the Constitution Bench speaking through Justice

Krishna Iyer categorically held that although

Order 40 Rule 1 limits the ground  viz-a-viz

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criminal proceedings to errors apparent on the

face of the record but the power to review in

Article 137 is wide and framers of the rules

never  intended  a  restrictive  review  over

criminal orders or judgments. In paragraphs 34

and 35 following was laid down:

“34.  The  rule,  on  its  face, affords a wider set of grounds for review  for  orders  in  civil proceedings, but limits the ground vis-a-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

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in  all  proceedings.  The  rule merely canalises 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 there, 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 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

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civil  and  criminal  proceedings when review power is invoked from the same source.”

12. This Court in subsequent judgments has

also noticed that scope of review in criminal

proceedings  has  been  considerably  widened  by

the Constitution Bench of this Court in  P.N.

Eswara  (supra).  In  Suthendraraja  alias

Suthenthira Raja alias Santhan and others vs.

State through Superintendent of Police, CBI,

(1999) 9 SCC 323, Justice D.P Wadhwa made the

following observation:

“5. It would be seen that the scope  of  review  in  criminal proceedings has been considerably widened  by  the  pronouncement  in the  aforesaid  judgment.  In  any case  review  is  not  rehearing  of the appeal all over again and to maintain a review petition it has to be shown that there has been a miscarriage of justice. Of course, the  expression  “miscarriage  of justice” is all-embracing…”  

13. Again a two-Judge Bench in Lily Thomas

and  others  vs.  Union  of  India  and  others,

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(2000) 6 SCC 224, had the occasion to consider

the scope of review jurisdiction of this Court.

In paragraph 52 following was laid down:

“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

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Karnataka, 1993 Supp (4) SCC 595, held: (SCC pp. 619-20, para 19)

“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 FC 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 117:2 MIA 181,   that an

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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

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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  47 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

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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.”

14. It was further held that mere possibility

of  two  views  on  the  same  subject  is  not  a

ground for review. In paragraph 56 following

was stated:

“56. It  follows,  therefore, that the power of review can be exercised  for  correction  of  a mistake  but  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

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disguise. The mere possibility of two views on the subject is not a ground for review…”

15. Further in  Devender Pal Singh vs. State,

NCT of Delhi and another, (2003) 2 SCC 501,

Arijit  Pasayat,J.,  elaborately  examined  the

scope and ambit of review jurisdiction of this

Court after referring to all earlier relevant

judgments  of  this  Court.  In  paragraph  11

following was stated:

“11. 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  rehearing  of  the appeal all over again, and as was observed in Suthendraraja 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 a wider amplitude, it has to be kept in mind that the scope  of  interference  is  very limited……”

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16. It was further held that resort to review

is  proper  only  where  a  omission  or  patent

mistake  or  like  grave  error  has  crept  in

earlier  judgment  by  judicial  fallibility.  In

paragraph 16 following has been stated:

“16. As  was  observed  by  this Court in  Col. Avtar Singh Sekhon v.  Union of India, 1980 Supp SCC 562, review  is  not  a  routine procedure. A review of an 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.”

17. As noted above under Order 40 Rule 1 no

application  for  review  can  be  entertained

except on the ground of an error apparent on

the face of the record. Although, the power of

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review given to this Court is wider as has been

held by the Constitution Bench in P.N. Eshwara

(supra),  Justice  Krishna  Iyer  has  given  an

illustration where the Court will not hesitate

in exercising its power to review in a case

where deceased himself walks in the Court on

whose  murder  accused  were  convicted.  Justice

Krishna Iyer rightly observed that Court is not

powerless to do justice in such case. Thus,

although the power of review granted to this

Court is wider but normally and ordinarily the

review in a criminal case has to be on the

grounds as enumerated in Rule 1 of Order 40.  

18. What is “an error apparent on the face of

the record” has also been a subject matter of

consideration by this Court in a large number

of cases. What are the grounds on which this

Court shall exercise its jurisdiction and what

is the error apparent on the face of the record

came to be considered by this Court in Kamlesh

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Verma vs. Mayawati and others, (2013) 8 SCC

320 (in which case one of us Dipak Misra, J.

was  also  a  party).  This  Court  held  that  an

error which is not self-evident and has to be

detected by a process of reasoning is not an

error apparent on the face of the record. In

paragraphs 15 and 16 following was laid down:

“15. An  error  which  is  not self-evident  and  has  to  be detected  by  a  process  of reasoning can hardly be said to be an error apparent on the face of  the  record  justifying  the Court  to  exercise  its  power  of review. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected,  but  lies  only  for patent  error.  This  Court  in Parsion  Devi v.  Sumitri  Devi, 1997 (8) SCC 715, held as under: (SCC pp. 718-19, paras 7-9)

“7. It  is  well  settled  that review  proceedings  have  to  be strictly  confined  to  the  ambit and scope of Order 47 Rule 1 CPC. In  Thungabhadra  Industries  Ltd. v.  Govt.  of  A.P.,  AIR  1964  SC 1372, this Court opined: (AIR p. 1377, para 11)

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‘11. What,  however,  we  are now  concerned with  is whether the statement in the order of September  1959  that  the  case did not involve any substantial question  of  law  is  an  “error apparent  on  the  face  of  the record”. The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive,  for  the  earlier order  itself  might  be erroneous.  Similarly,  even  if the  statement  was  wrong,  it would not follow that it was an “error apparent on the face of the  record”,  for  there  is  a distinction  which  is  real, though it might not always be capable of exposition, between a mere erroneous decision and a decision  which  could  be characterised  as  vitiated  by “error  apparent”.  A  review is by  no  means  an  appeal  in disguise  whereby  an  erroneous decision  is  reheard  and corrected,  but  lies  only  for patent error.’

8. Again,  in  Meera  Bhanja v. Nirmala Kumari Choudhury, 1995 (1) SCC  170,  while  quoting  with approval  a  passage  from  Aribam Tuleshwar Sharma v.  Aribam Pishak Sharma,  1979  (4)  SCC  389, this Court once again held that review proceedings are not by way of an

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appeal  and  have  to  be  strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

9. Under Order 47 Rule 1 CPC a judgment  may  be  open  to  review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not  self-evident  and  has  to  be detected  by  a  process  of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to  exercise  its  power  of  review under  Order  47  Rule  1  CPC.  In exercise of the jurisdiction under Order  47  Rule  1  CPC  it  is  not permissible  for  an  erroneous decision  to  be  ‘reheard  and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.”

  (emphasis in original)

16. Error  contemplated  under the  Rule  must  be  such  which  is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for  correction  of  a  mistake  but not to substitute a view. The mere possibility  of  two  views  on  the subject  is  not  a  ground  for review.”

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19. Further elaborating on the parameters of

review jurisdiction following was laid down in

paragraphs 17 and 18:

“17. In a review petition, it is  not  open  to  the  Court  to reappreciate  the  evidence  and reach a different conclusion, even if  that  is  possible.  Conclusion arrived  at  on  appreciation  of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court in Kerala  SEB v.  Hitech Electrothermics & Hydropower Ltd., 2005 (6 )SCC 651, held as under: (SCC p. 656, para 10)

“10. … In a review petition it is not open to this Court to reappreciate  the  evidence  and reach  a  different  conclusion, even if that is possible. The learned  counsel for  the Board at  best  sought  to  impress  us that  the  correspondence exchanged  between  the  parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a  review  petition.  The appreciation  of  evidence  on record  is  fully  within  the domain of the appellate court.

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If  on  appreciation  of  the evidence  produced,  the  court records a finding of fact and reaches  a  conclusion,  that conclusion  cannot  be  assailed in a review petition unless it is shown that there is an error apparent  on  the  face  of  the record or for some reason akin thereto.  It  has  not  been contended before us that there is  any  error  apparent  on  the face of the record. To permit the review petitioner to argue on  a question  of appreciation of  evidence  would  amount  to converting  a  review  petition into an appeal in disguise.”

18. Review is not rehearing of an original matter. The power of review  cannot  be  confused  with appellate  power  which  enables  a superior  court  to  correct  all errors committed by a subordinate court.  A  repetition  of  old  and overruled argument is not enough to reopen concluded adjudications. This Court in Jain Studios Ltd. v. Shin  Satellite  Public  Co.  Ltd., (2006) 5 SCC 501, held as under: (SCC pp. 504-505, paras 11-12)

“11. So far as the grievance of the applicant on merits is concerned,  the  learned  counsel for  the  opponent  is  right  in submitting  that  virtually  the applicant seeks the same relief which  had  been  sought  at  the

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time of arguing the main matter and  had  been  negatived.  Once such a prayer had been refused, no  review  petition  would  lie which  would  convert  rehearing of the original matter. It is settled law that the power of review  cannot  be  confused with  appellate  power  which enables  a  superior  court  to correct all errors committed by a subordinate court. It is not rehearing  of  an  original matter. A repetition of old and overruled  argument  is  not enough  to  reopen  concluded adjudications.  The  power  of review  can  be  exercised  with extreme  care,  caution  and circumspection  and  only  in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein  had  been  made  at  the time  when  the  arbitration petition  was  heard  and  was rejected,  the  same  relief cannot be sought by an indirect method  by  filing  a  review petition. Such petition, in my opinion,  is  in  the  nature  of ‘second  innings’  which  is impermissible  and  unwarranted and cannot be granted.””

20. Summarising  the  principles  when  review

will be maintainable and review will not be

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maintainable following was held in paragraphs

20.1 and 20.2:

“20.1. When the review will be maintainable:

(i)  Discovery  of  new  and important  matter  or  evidence which, after the exercise of due diligence,  was  not  within knowledge  of  the  petitioner  or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii)  Any  other  sufficient reason. The  words  “any  other  sufficient reason” have been interpreted in

Chhajju  Ram v.  Neki,AIR  1922  PC 112, and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526, to mean “a reason sufficient  on  grounds  at  least analogous  to  those  specified  in the  rule”.  The  same  principles have been reiterated in  Union of India v.  Sandur Manganese & Iron Ores Ltd.(2013)8 SCC 337.

20.2. When the review will not be maintainable:

(i)  A  repetition  of  old  and overruled argument is not enough to reopen concluded adjudications.

(ii)  Minor  mistakes  of inconsequential import.

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(iii) Review proceedings cannot be  equated  with  the  original hearing of the case.

(iv)  Review  is  not maintainable  unless  the  material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal  in  disguise  whereby  an erroneous decision is reheard and corrected but lies only for patent error.

(vi)  The  mere  possibility  of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii)  The  appreciation  of evidence on record is fully within the domain of the appellate court, it  cannot  be  permitted  to  be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time  of  arguing  the  main  matter had been negatived.”

21. In view of above, it is clear that scope,

ambit and parameters of review jurisdiction are

well  defined.  Normally  in  a  criminal

proceeding,  review  applications  cannot  be

entertained  except  on  the  ground  of  error

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apparent on the face of the record. Further,

the power given to this Court under Article 137

is  wider  and  in  an  appropriate  case  can  be

exercised to mitigate a manifest injustice. By

review  application  an  applicant  cannot  be

allowed to re-argue the appeal on the grounds

which were urged at the time of the hearing of

the  criminal  appeal.  Even  if  the  applicant

succeeds  in  establishing  that  there  may  be

another  view  possible  on  the  conviction  or

sentence  of  the  accused  that  is  not  a

sufficient ground for review. This Court shall

exercise its jurisdiction to review only when a

glaring omission or patent mistake has crept in

earlier decision due to judicial fallibility.

There has to be error apparent on the face of

the record leading miscarriage of justice to

exercise the review jurisdiction under Article

137 read with Order 40 Rule 1. There has to be

a material error manifest on the face of the

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record with results in the miscarriage of the

justice.  

22. In  view  of  parameters  of  the  review

jurisdiction as noticed above, we now proceed

to examine the review petition to find out as

to  whether  there  are  sufficient  grounds  as

enumerated above for reviewing the judgment of

the  criminal  appeal  affirming  the  death

sentence awarded to the applicants.

23. Learned counsel contended that the tape-

recorded  conversation  has  been  relied  on

without  there  being  any  certificate  under

Section 65B of the Evidence Act, 1872. It was

contended  that  audio  tapes  are  recorded  on

magnetic media, the same could be established

through a certificate under Section 65B and in

the absence of the certificate, the document

which constitutes electronic record, cannot be

deemed to be a valid evidence and has to be

ignored from consideration. Reliance has been

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placed by the learned counsel on the judgment

of this Court in  Anvar P.V. vs. P.K. Basheer

and others, (2014) 10 SCC 473. The conversation

on  the  landline  phone  of  the  complainant

situate  in  a  shop  was  recorded  by  the

complainant.  The  same  cassette  containing

conversation by which ransom call was made on

the  landline  phone  was  handed  over  by  the

complainant  in  original  to  the  Police.  This

Court  in  its  judgment  dated  25.01.2010  has

referred to the aforesaid fact and has noted

the said fact to the following effect:

“The  cassette  on  which  the conversations had been recorded on the  landline  was  handed  over  by Ravi Verma to S.I. Jiwan Kumar and on  a  replay  of  the  tape,  the conversation  was  clearly  audible and was heard by the Police.”

24. The  tape  recorded  conversation  was  not

secondary evidence which required certificate

under Section 65B, since it was the original

cassette  by  which  ransom  call  was  tape-

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recorded, there cannot be any dispute that for

admission of secondary evidence of electronic

record a certificate as contemplated by Section

65B is a mandatory condition. In  Anvar P.V.

(supra) this  Court  had  laid  down  the  above

proposition in paragraph 22. However, in the

same judgment this Court has observed that the

situation would have been different, had the

primary evidence was produced. The conversation

recorded  by  the  complainant  contains  ransom

calls  was  relevant  under  Section  7  and  was

primary evidence which was relied on by the

complainant. In paragraph 24 of the judgment of

this Court in  Anvar P.V.  it is  categorically

held that if an electronic record is used as

primary  evidence  the  same  is  admissible  in

evidence, without  compliance  with  the

conditions in Section 65B. Paragraph 24 is as

extracted below:

“24. The  situation  would  have been different had the appellant

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adduced  primary  evidence,  by making available in evidence, the CDs  used  for  announcement  and songs.  Had  those  CDs  used  for objectionable  songs  or announcements been duly got seized through  the  police  or  Election Commission and had the same been used as primary evidence, the High Court could have played the same in  court  to  see  whether  the allegations were true. That is not the  situation  in  this  case.  The speeches, songs and announcements were  recorded  using  other instruments  and  by  feeding  them into  a  computer,  CDs  were  made therefrom which were produced in court, without due certification. Those  CDs  cannot  be  admitted  in evidence  since  the  mandatory requirements  of  Section  65-B  of the  Evidence  Act  are  not satisfied.  It  is  clarified  that notwithstanding  what  we  have stated  herein  in  the  preceding paragraphs  on  the  secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”

25. He has further contended that on the plain

reading of the Chemical Examiner’s report, it

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is  clear  that  the  death  was  caused  due  to

overdose  of  chloroform  and  pentazocine

poisoning. Hence, the conviction ought to have

been  under  Section  304A  IPC  and  not  under

Section  302  IPC.  The  conviction  against  the

applicants  under  Section  302  and  364A  was

recorded after considering entire evidence on

record.  This  Court  while  dismissing  the

criminal  appeals  and  affirming  the  death

Reference  No.1  has  appreciated  the  entire

evidence and approved the decision of the trial

court and the High Court. The conviction of the

applicant  was  based  on  cogent,  ocular  and

medical evidence and in the review application

applicants have again asked this Court to re-

appraise the evidence and come to a different

conclusion. There is no apparent error on the

face of the record in recording conviction of

the applicants under Section 302 and 364A.

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26. It  is  further  contended  that  this  Court

had  relied  on  the  disclosure  statement  of

Jasvir Singh, which led to the recovery of the

dead body which disclosure statement does not

connect Vikram Singh with the crime. The trial

court as well as the High Court marshaled the

ocular  evidence  by  which  evidence  role  of

Vikram Singh was duly proved in commission of

crime. Hence, this submission deserves to be

rejected.  

27. Lastly, Shri K.T.S. Tulsi, learned senior

counsel submits that this Court in paragraph 18

has  recorded  its  conclusion  that  the  finger

prints of Vikram Singh were found on the Alto

and  Chevrolet  cars,  therefore,  connection  of

Vikram Singh is established in the crime. It is

submitted  that  since  this  Court  recorded  at

para 18 that the said cars belong to Vikram

Singh, the existence of finger prints cannot by

itself be of any significance with regard to

35

his culpability in the crime. It is submitted

that by relying on finger prints, this Court

had committed an apparent error on the face of

the  record.  The  above  submission  of  learned

counsel is misconceived and incorrect.  In para

18 of the judgment this Court never observed

that Alto and Chevrolet cars belonged to Vikram

Singh. The statement of facts made in para 18

was to the effect that the finger prints from

the Alto and Chevrolet cars belong to Vikram

Singh  and  Jasvir  Singh  respectively.  It  is

useful  to  extract  below  para  18  of  the

judgment:

“18.We  also  find  that  the prosecution has been able to show that the finger prints lifted by the Police Officers from the Alto and  Chevrolet  cars  belonged  to Vikram  Singh  and  Jasvir  Singh respectively.  It  is  significant that  the  Chloroform  bottle recovered  from  Darshan  Kaur’s residence  was  also  examined  and the  thumb  impression  of  Jasvir Singh was detected thereon.”  

36

28. There  is  evidence  of  the  owner  of  Alto

car, PW.3, Naresh Kumar Sharma who had stated

in his statement that the car was lent by him

to  Vikram  Singh  in  the  morning  of  14th

February, 2005 at about 7 a.m. to 7.30 a.m.

Thus,  it  was  no  one’s  case  that  Alto  car

belonged to Vikram Singh. The argument raised

by Shri K.T.S. Tulsi is misconceived and we

unhesitatingly repel the same.

29. Learned counsel has further contended that

present  was  not  a  case  where  death  penalty

could have been awarded to the applicants. In

the review petition reliance has been placed by

the applicants on Constitution Bench judgment

in Bachan Singh vs. State of Punjab, (1980) 2

SCC  684,  and  judgment  in  Machhi  Singh  and

others vs. State of Punjab, (1983) 3 SCC 470.

This  Court  in  its  judgment  dismissing  the

appeals  referred  to  Bachan  Singh  and  Machhi

Singh and has categorically applied its mind to

37

various parameters laid down in the aforesaid

judgments  and  on  the  broad  principle  which

emerged from the judgments for evaluating the

category  of  the  rarest  of  the  rare  case.

Various mitigating and aggravated factors which

have been noted in the judgment of the High

Court were referred to by this Court, and this

Court  recorded  its  conclusion  that  balance-

sheet  has  been  drawn  by  the  High  Court  of

aggravating and mitigating circumstances which

was duly adopted by this Court. We do not find

any error apparent on the record in the above

consideration by this Court in affirming the

judgment of the High Court.

30. Learned counsel appearing for Jasvir Singh

adopted the submissions of Shri K.T.S. Tulsi on

legal issues and on the question of sentence.

Certain other submissions have been raised on

behalf of the second applicant which also do

not disclose any ground which can be said to be

38

a  valid  ground  for  exercising  review

jurisdiction.  

31. We,  after  carefully  considering  the

submissions  of  the  applicants,  are  of  the

considered opinion that submissions raised in

the review petitions do not raise any ground

for  review  of  judgment  of  this  Court  dated

25.01.2010.

32. In the result, the review applications are

rejected.

……………………………………………J.       ( DIPAK MISRA )

……………………………………………J.        ( R. BANUMATHI )

……………………………………………J.         ( ASHOK BHUSHAN )

New Delhi, July 07, 2017.