Summary
The Supreme Court reviewed and recalled its ex parte order transferring a criminal case because the required notice had not been issued before final disposal. Earlier summary rejection of the informant’s recall application did not bar the properly instituted review. The informant was added as a respondent and the transfer petition revived for pleadings and hearing. The Court did not decide the merits of the transfer request, and the connected contempt petition was closed.
Issues
- Whether rejection of an earlier recall application barred a statutory review petition.
- Whether final transfer at preliminary hearing without the prescribed notice disclosed an error apparent warranting review.
Provisions considered
- Article 137, Constitution of IndiaThe constitutional review power remained available notwithstanding summary rejection of the earlier miscellaneous recall application, where no issue had been adjudicated in that rejection. (¶¶ 9, 11, 13, 14, 15, 16)
- Order XLVII Rule 1, Supreme Court Rules, 2013Criminal review required an error apparent on the record. The failure to follow the prescribed notice procedure supplied that ground here. (¶¶ 10, 11, 12, 13, 17, 18, 20)
- Order XXXIX Rule 2, Supreme Court Rules, 2013At preliminary hearing, a prima facie case for transfer calls for notice to the designated respondents and interested parties as directed, rather than final allowance without that procedure. (¶¶ 17, 18)
Held
- The earlier miscellaneous application was not the statutory review, and its summary rejection did not show consideration or determination of the issues raised. It therefore did not foreclose this review. (¶¶ 13, 14, 15)
- The informant had not been a respondent in the transfer petition and had received no opportunity to oppose transfer. An ex parte liberty clause addressed to respondents did not exhaust his separate review remedy when he sought recall. (¶¶ 8, 17, 18)
- Passing the final transfer order on the first hearing without notice under the applicable rule was an error apparent requiring correction. This was a procedural review, not a merits determination of the transfer grounds. (¶¶ 17, 18, 20)
- The transfer petition was revived, the informant impleaded, and time allowed for counter affidavits and rejoinder. The connected contempt proceedings were closed. (¶¶ 20, 21, 22)
Result
Review allowed and transfer order recalled; transfer petition restored with the informant impleaded and pleading directions issued; contempt petition closed.