LEGAL INNOVATION

Curative Petition: Ex debito justitiae

The constitution of India has conferred a power of review of the Judgment of Apex Court under Articles 137 and 145. However, a party stands still aggrieved by reason of a rejection of review, the question arises whether all door of justice is closed for  litigant and to suffer the onslaught for all times to come and in perpetuity, when on the face of the Order it appears to be wholly without jurisdiction or in violation of natural justice.

The innovative concept of curative petition was evolved by Supreme Court as a remedy for injustice in rigid judicial protocol. Hon’ble justice Umesh C. Banerjee while agreeing to justice Quadri opined following:

The oft quoted statement of law of Lord Hewart, CJ in R v. Susssex Justices, ex p McCarthy (1924 (1) KB 256) that it is of fundamental importance that justice should not only be done, should manifestly and undoubtedly be seem to be done had this doctrine underlined and administered therein.     In this context, the decision of the House of Lords in R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2) seem to be an ipoc making decision, wherein public confidence on the judiciary is said to be the basic criteria of the justice delivery system  any act or action even if it a passive one, if erodes or even likely to erode the ethics of judiciary, matter needs a further look. Brother Quadri has taken very great pains to formulate the steps to be taken and the methodology therefor, in the event of there being an infraction of the concept of justice, as such further dilation would be an unnecessary exercise which I wish to avoid since I have already recorded my concurrence therewith excepting, however, lastly that curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute.

“    (Rupa Ashok Hurra vs Ashok Hurra And Another, AIR 2002 SC 1771)

The Hon’ble Supreme Court also took support of Article 142 of the Constitution of India for evolving the concept of Curative Petition. However, this power cannot be used to “supplant” substantive law applicable to the case or case under consideration of the Court. Prior to Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002 (4) SCC 388), the Supreme Court in a number of decisions had held that in case of a miscarriage of justice, it is amenable for correction. Examples of this sort are to be found in M.S.Ahlawat vs State Of Haryana and Anr ((2000) 1 SCC 270), Harbans Singh v. State of Uttar Pradesh & others (1982 SCR (3) 235) and Supreme Court Bar Association v. Union of India & Anr (AIR 1998 SC 1895). In the above mentioned cases the Court invoked its inherent power under Article 142 to do complete justice.

The principle of ex debito justitiae was also invoked in support of the Curative petition. The ex debito justitiae was expounded in order to propound the modalities of curative petitions.

The Hon’ble Supreme Court devised following procedure for curative petition in case of Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002 (4) SCC 388).“52. The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

  1. We are of the view that since the matter relates to re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders. It shall be open to the Bench at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

The Hon’ble Supreme Court has also framed rules under Order XLVIII of the Supreme Court Rules, 2013 for the Curative Petition as one procedure regarding the remedy available to a person even after the Review.

The Hon’ble Supreme Court has entertained following important Curative Petition, which refers to procedure in case of Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002 (4) SCC 388):

Sr No. Cases Relief Brief Facts
1. Sumer vs State Of U.P

(Curative Petition (crl.)  3 of 2005)

Dismissed The main thrust of the petitioner is that the evidence and the factors taken into account by the High Court for disbelieving the testimony of the eye-witnesses have not been properly appreciated by Supreme Court while allowing the appeal of the State against judgment of acquittal.
2. Bakshi & Co vs Commissioner Of Sales Tax Lucknow (Curative Petition (C) No. 108 of 2004) Dismissed The curative petition was accompanied by a certificate from Senior Advocate. The certificate did not specifically set out which of the grounds, if any, for entertaining the curative petition was available in the case. Thus, the certification did not fulfil the requirement laid down in Rupa Ashok Hurra case.
3. Gurdeep Singh & Anr vs State Of Punjab & Ors (Curative Petition No. 23 of 2004) Dismissed ————Do—————–
4. Harendra Jha .Vs.   State of Jharkhand.

(Curative Petition(Crl) D   11467   OF   2007)

Defect in Petition The petitioner failed to produce a certificate from a Senior Advocate as provided in paragraphs 51 and 52 of the decision reported in Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002 (4) SCC 388)
5. Shaukat Hussain Guru vs State (Nct) Delhi & Anr Dismissed Supreme Court had acquitted the petitioner on all charges framed against him but convicted him under Section 123 IPC, an offence with which he was not charged and in respect of which even the Public Prosecutor did not advance any argument in this Court. However, the curative petition was dismissed by a Bench of four Judges of supreme Court on 12th January, 2007.
6. C.B.I vs Keshub Mahindra (Curative Petition(Crl.) NOS. 39-42  of 2010 Dismissed The main planks of the curative petitions was that even though in course of trial before the Magistrate, additional evidences have come on record that fully warrant the framing of the higher charge (s) and the trial of the accused on those higher charges, as long as the 1996 judgment stands the Sessions Court would feel helpless in framing any higher charges against the accused in the same way as the trial
court observed that in view of the judgment of the Supreme Court no court had the power to try the accused for an offence higher than the one under Section 304A of IPC. The learned Magistrate failed to appreciate the correct legal position and misread the decision dated 13.9.1996 as tying his hands from exercising the power under Section 323 or under Section 216 of the Code.
7. Haryana State Ind. Dev. … vs Pran Sukh & Ors (Curative Petition(C) D. No. 3040 OF   2014) Dismissed The Curative Petition was misconceived and vexatious for the reasons rightly recorded by the Registry. The compensation for the acquired land was enhanced by the High Court by relying on a Sale Deed executed by two private and independent companies. HSIIDC had unsuccessfully challenged the Judgment of the High Court before Supreme Court.

The para 6 to 10 of judgement in case of   Yakub Abdul Razak Memon vs State of Maharashtra in W. P. (Crl.) No.129 of 2015, while dwelling upon the reference “whether the curative petition had been decided by the Bench duly constituted as per the Rules”, critically examines the principle and procedure in curative petition.

Rajni Sinha

Advocate High Court

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