# VIKRAM SINGH @ VICKY WALIA AND ANR v. STATE OF PUNJAB AND ANR

- **Citation:** [2017] 8 S.C.R. 177
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal M.P. Nos.16673-16674 of2016
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vikram-singh-vicky-walia-and-anr-v-state-of-punjab-and-anr-32143
- **Pages:** 21

## Headnote

[2017] 8 S.C.R. 177
VIKRAM SINGH @ VICKY WALIA AND ANR.
A
v.
STATE OF PUNJAB AND ANR.
(Criminal M.P. Nos.16673-16674 of2016and16675-16676 of2016)
In
(Review Petition (Cr!.) Nos.192-193 of2011)
In
(Criminal Appeal Nos.1396-1397 of2008)
JULY07,2017
fDIPAK MISRA, R. BANUMATHI AND
ASHOK BHUSHAN, JJ.J
B
c
Constitution of India - Art. 13 7 - Review of judgments or
orders by the Supreme Court - On facts, conviction of three 4/ss.
302, 364A, 201 and 120B and sentenced to death - Supreme Court
upheld the death sentence of two, however commuted the death
D
sentence of lady co~accused to life imprisonment - Review
petitions - Held: This Court while affirming the judgment of the
High Court, found no error apparent on the record - Submissions
raised in the review petition do not raise any ground for review -
Submission that tape recorded conversation was relied on without
there being any certificate u!s. 65B as such not a valid evidence,
E
cannot be accepted - Tape recorded conversation was not secondary
· evidence which required certificate uls. 65B, since it was the original
cassette by which ransom call was tape-recorded - Submission that
the death was caused due to overdose of chlorofr;rm and pentazocine
poisoning, as such the conviction ought to be uls. 304A and not u/ F .
s. 302 cannot be accepted - Conviction of the applicants was based
on cogent, ocular and medical evidence and there was no apparent
error on the face of the record in recording conviction of the
applicants ·uls. 302 and 364A - Penal Code, 1860 - 302, 364A,
201and120B - Evidence Act, 1872 - s. 65B.
Art. 13 7 - Power of review - Scope and ambit of.-
Explained - Or. 40 r. 1 - Supreme Court Rules, 1966.
G
Evidence Act, 1872 - s. 65B - Admissibility of electronic records -
Reliance on the tape recorded conversation - Requirement of
certificate u/s. 65B - Held: For admission of secondary evidence H
177
178
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A of electronic record a certificate as contemplated by s. 65B is a
mandatory condition - Tape recorded conversation was original
cassette by which ransom call was tape-recorded, thus, not secondary
evidence which required certificate u/s. 65B.
B
Rejecting the review applications, the Court
HELD: 1.1 This Court has constitutional power to review
its judgment as granted by Article 137 of the Constitution which
is subject to Supreme Court Rules, 1966. 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
c record. 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. Under Order 40
Rule 1 no application for review can be entertained except on
D the ground of an error apparent on the face of the record. 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. (Paras 9, 10, 171
[183-E-G; 189-C, DI
E
F
1.2 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 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.
G This Court shall exercise Its jurisdiction to review only when a
glaring

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[2017] 8 S.C.R. 177
VIKRAM SINGH @ VICKY WALIA AND ANR.
A
v.
STATE OF PUNJAB AND ANR.
(Criminal M.P. Nos.16673-16674 of2016and16675-16676 of2016)
In
(Review Petition (Cr!.) Nos.192-193 of2011)
In
(Criminal Appeal Nos.1396-1397 of2008)
JULY07,2017
fDIPAK MISRA, R. BANUMATHI AND
ASHOK BHUSHAN, JJ.J
B
c
Constitution of India - Art. 13 7 - Review of judgments or
orders by the Supreme Court - On facts, conviction of three 4/ss.
302, 364A, 201 and 120B and sentenced to death - Supreme Court
upheld the death sentence of two, however commuted the death
D
sentence of lady co~accused to life imprisonment - Review
petitions - Held: This Court while affirming the judgment of the
High Court, found no error apparent on the record - Submissions
raised in the review petition do not raise any ground for review -
Submission that tape recorded conversation was relied on without
there being any certificate u!s. 65B as such not a valid evidence,
E
cannot be accepted - Tape recorded conversation was not secondary
· evidence which required certificate uls. 65B, since it was the original
cassette by which ransom call was tape-recorded - Submission that
the death was caused due to overdose of chlorofr;rm and pentazocine
poisoning, as such the conviction ought to be uls. 304A and not u/ F .
s. 302 cannot be accepted - Conviction of the applicants was based
on cogent, ocular and medical evidence and there was no apparent
error on the face of the record in recording conviction of the
applicants ·uls. 302 and 364A - Penal Code, 1860 - 302, 364A,
201and120B - Evidence Act, 1872 - s. 65B.
Art. 13 7 - Power of review - Scope and ambit of.-
Explained - Or. 40 r. 1 - Supreme Court Rules, 1966.
G
Evidence Act, 1872 - s. 65B - Admissibility of electronic records -
Reliance on the tape recorded conversation - Requirement of
certificate u/s. 65B - Held: For admission of secondary evidence H
177
178
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A of electronic record a certificate as contemplated by s. 65B is a
mandatory condition - Tape recorded conversation was original
cassette by which ransom call was tape-recorded, thus, not secondary
evidence which required certificate u/s. 65B.
B
Rejecting the review applications, the Court
HELD: 1.1 This Court has constitutional power to review
its judgment as granted by Article 137 of the Constitution which
is subject to Supreme Court Rules, 1966. 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
c record. 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. Under Order 40
Rule 1 no application for review can be entertained except on
D the ground of an error apparent on the face of the record. 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. (Paras 9, 10, 171
[183-E-G; 189-C, DI
E
F
1.2 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 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.
G 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.
H There has to be a material error manifest on the face of the record
VIKRAM SINGH @ VICKY WALIA v. STATE OF PUNJAB
179
. with results in the miscarriage of the justice. [Para 21) (193-H;
A
194-A-C)
2.1 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 B
complainant in original to the Police. This Court in its judgment
noted that the cassette on which the conversations had been
recorded on the. landline was handed over by RV to S.I. and on a
replay of the tape, the conversation was clearly audible and was
heard by the Police. The tape recorded conversation was not
secondary evidence which required certificate under Section 65B
C
of the Evidence Act, 1872, since it was the original cassette by
which ransom call was tape-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. [Paras 23, 24) [194-F-H; 195-A-B)
D
·2.2 It was submitted that the death was caused due to
overdose of chloroform and pentazocine poisoning, hence, the
conviction ought to have been under Secti.on 304A IPC and not
under Section 302 IPC. The conviction against the applicants
under Section 302 and 364A IPC was recorded after considering
E
entire evidence on record. This Court while dismissing the
criminal appeals and affirming the death Reference 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 again asked this Court to re-appraise the
F
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. [Para 251 1195-H; 196A•C)
2.3 The submission that this Court had relied on the G
disclosure statement of JS, which led to the recovery of the dead
body which disclosure statement does not connect VS with the
crime, cannot be accepted. The trial court as well as the High
Court marshaled the ocular evidence by which role of VS was
duly proved in commission of crime. The submission of the H
180
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A counsel for the appellant that since this Court recorded in the
judgment that the said cars belong to the appellant, the existence
of finger prints cannot by itself be of any significance with regard
to his culpability in the crime; and that by relying on finger prints,
this Court had committed an apparent error on the face of the
record, is misconceived and incorrect. In the judgment this Court
B
never observed that Alto and Chevrolet cars belonged to the
appellant. The statement of facts made in the judgment was to
the effect that the finger prints from the Alto and Chevrolet cars
belong to the appellants respectively. There is evidence of the
owner of Alto car, PW.3, who had stated in his statement that the
C car was lent by him to the applicant-VS. It was no one's case that
Alto car belonged to the appellant. [Paras 26-28) [196-C-D, E-G;
197-B)
2.4 This Court referred to the various mitigating and
aggravated factors, and recorded its conclusion that balance-sheet
D has been drawn by the High Court of aggravating and mitigating
circumstances which was duly adopted by this Court. No error
apparent on the record is found on the record by this Court in
affirming the judgment of the High Court. The submissions raised
in the review petitions do not raise any ground for review of
E judgment of this Court. [Paras 29, 31) [197-E, G)
Mohd. Arif alias Ashfaq v. Registrar, Supreme Court Of
India And Others, 2014 (9) SCC 737:(2014) 11 SCR
1009; Sow Chandra Kante and another v. Sheikh Hai,
(1975) 1 SCC 674; P.N. Eswara Iyer and others v.
Registrar, Supreme Court of India (1980) 4 SCC 680;
F
Suthendraraja alias Suthenthira Raja alias Santhan and
others v. State through Superintendent of Police, CBI,
(1999) 9 sec 323:(19991 3 Suppl. SCR 540; Lily
Thomas and others v. Union of India and others (2000)
6 SCC 224:(2000) 3 SCR 1081; Devender Pal Singh
G
v. State, NCT of Delhi and another (2003) 2 SCC
501:(2002) 5 Suppl. SCR 332; Kamlesh Verma v.
Mayawati and others (2013) 8 SCC 320:(2013) ll SCR
25; Anvar P. V. v. P.K. Basheer and others, (2014) 10
SCC 473:(2014) 11 SCR 399; Bachan Singh v. State .
of Punjab (1980) 2 SCC 684; Machhi Singh and others
H
VIKRAM SINGH @VICKY WALIA v. STATE OF PUNJAB
181
v. State of Punjab, (1983) 3 SCC 470:[1983) 3 SCR
A
413 - referred to.
Case Law Reference
[2014) 11 SCR 1009
referred to
Para 1
(1975) 1 sec 674
referred to
Para 10
(1980) 4 sec 680
referred to
Para 11
B
[1999) 3 Suppl. SCR 540
referred to·
Para 12
· [2000) 3 SCR1081
referred to
Para 13
[2002] 5 Suppl. SCR 332
referred to
Para 15
[2013r 11 SCR 25
referred to
Para 17
c
[2014) 11 SCR 399
referred to
Para 23
(1980) 2 sec 684
referred to
Para 29
[1983) 3 SCR 413
referred to
Para 29
CRIMINAL APPELLATE JURISDICTION : Criminal
M.P.Nos.16673-16674 of2016 and CriminalM.P. Nos.16675-16676 of D
2016 in Review Petition (Crl.) Nos.192-193 of2011 in Criminal Appeal
Nos.1396-1397 of2008.
From the Judgment and Order dated 30~05.2008 of the High Court
of Punjab and Haryana at Chandigarh in Crl.Appeal No. 105-DB/200.7.
K. T. S. Tulsi, Sr. Adv., Tripurari Ray, B. S. Billowria, Raj Kamal,
E
Ms. Pallavi Malhotra, Vijay Pratap Singh, Ms. Ambika, Ms. Shilpa Singh,
Abid Bashir, S. K. Sharma, Advs. for the Appellant.
V. Madhukar, AAG. Ms. Anvita Cowshish, Ms. Lubna Naaz,
' Kuldip Singh, Abhishek Singh, Rahul Shuam Bhandari, Sarvesh Singh,
. Advs. for the Respondents~
F
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Delay condoned. These criminal
miscellaneous petitions have been filed by the applicants for reopening ·
the Review Petition (Cr!.) Nos. 192-193 of 2016 in Criminal Appeal
Nos.1396-1397 of2008 on the basis of Constitution Bench judgment in
G
Mohd. Arif alias Aslifaq versus Registrar, Supreme Court Of India
And Others, 2014(9) SCC 73 7, by which judgment liberty was granted
to those petitioners whose review applications seeking review of judgment
of this Court confirming death sentencewere rejected by circulation but
death sentences were not executed."'''
{'.·
H
182
SUPREME COURT REPORTS
[2017) 8 S.C.R.
A
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 20'h December,
2016/21'' December, 2016 convicted both the applicants as well as one
Smt. Sonia wife of Jasvir Singh and awarded death sentence to all the
B three accused under Section 302 and 364AlPC. Criminal Appeal No.l 05DB of 2007 was filed before the High Court by all the accused against
the judgment of Sessions Judge, Hoshiarpur. Murder Reference No. l
of 2007 was also made by the Sessions Judge before the High Court
seeking confirmation of death sentence. Both Murder Reference No. l
of2007 as well as Criminal Appeal No. l 05-DB of2007 were heard and
C disposed of by a common judgment of the High Court dated 30.05.2008.
The High Court accepted the Murder Reference No. I of 2007 and
confirmed the death sentence awarded by the trial court resultantly
Criminal Appeal No. I 05-DB/2007 was dismissed. Aggrieved by the
judgment of the High court dated 30.05.2008 Criminal Appeal Nos.1396D 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
(Cr!.) N os.192-193 of 2011 which review petitions were dismissed by
E circulation vi de 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 of2016 were filed by the applicants for reopening
F the Review Petition (Crl.) Nos.192-193 of201 l.
3. Learned counsel for the parties were permitted to advance
their oral submissions on 24.l 0.2016 in support of Review Petition (Crl.)
Nos.192-193 of2011.
4. We have heard Shri K.T.S. Tulsi, learned senior counsel
G 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 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
H the judgment of this Court dated 25.01.2010 by which judgment criminal
VIKRAM SINGH @VICKY WALIA v. STATE OF PUNJAB
183
[ASHOK BHUSHAN, J.)
appeals filed by the applicants were dismissed and death sentence A
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.
B
7. Article 137 of the Constitution oflndia 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 C
have power to 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:
"J, The Court may review its judgment or order. but no
D
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
E
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.
F
10. Granting power of review to this Court by the Constitution is
in recognition of the universal principle that the power ofreview 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 ofreview G
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) 1SCC674, 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:
H
184
A
B
SUPREME COURT REPORTS
[2017] 8 S.C.R.
"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 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 l 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
C 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
D categorically held that although Order 40 Rule l limits the ground viz-aviz 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:
E
F
G
H
"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 intend.ed 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 13 7 and it is
equally wide 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
VIKRAM SINGH @VICKY WALIA v. STATE OF PUNJAB
185
[ASHOK BHUSHAN, J.]
on the demand of the context and the lexical limits of the
A
test. Here "record" means any materiql 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
B
the difference in phraseology in the rule (Order 40 Rule 2)
C
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 J, CPC. We
D
see no insuperable difficulty in equating the area in 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
E
Constitution Bench of.this Court in P.N. Eswara (supra). Jn
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 F
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-embrqcing ... "
13. Again a two-Judge Bench in Lily Thomas and others vs.
Union of India and others, (2000) 6 SCC 224, had the occasion to
consider the scope ofreview jurisdiction of this Court. In paragraph 52
following was laid down:
G
H
186
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 8 S.C.R.
"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.
PradyumansinghjiArjunsinghji,-(1971) 3 SCC 844, held that the
power ofreview 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 ofKamataka 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 oflaw 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 Raj under Narain Rae
v. Bijai Govind Singh, (1836) 1 Moo PC 117: 2 MIA181, that an
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
VIKRAM SINGH @VICKY WALIA v. STATE OF PUNJAB
187
[ASHOK BHUSHAN, J.]
law, the same power which the courts of record and statute A
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
B
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 C
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 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 D
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 E
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 13 7 of the Constitution. And clause
F
(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 4 7 Rule I of the Civil Procedure
Code. The expression, 'for any other sufficient reason' in the
G
clause has been given an expanded meaning and a decree or
order 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 H
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A
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
B
is no ground to review the earlier judgment passed by a
Bench of the same strength. "
c
D
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 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
E was stated:
F
"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
ofjustice" is of a wider amplitude, it has to be kept in mind
that the scope of interference is very limited ...... "
G
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:
H
"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
VIKRAM SINGH @VICKY WALIA v. STATE OF PUNJAB.
189
[ASHOK BHUSHAN, J.]
permissible unless the Court is satisfied that material error,
A
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 B
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 review given to this Court
is wider as has been held by the Constitut~on Bench in P. N. Eshwara
C
(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
D
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
· Order40.
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
E
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 Verma vs. Mayawati
and others, (1013) 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 selfevident and has to be detected by a process ofreasoning is not an error
F
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
G
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)
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"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)
'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. Similqrly, 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 (I) 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 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)
VIKRAM SINGH @VICKY WALIA v. STATE OF PUNJAB
191
[ASHOK BHUSHAN, J.]
16. Error contemplated under the Rule must be such which A
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
B
review."
19. Further elaborating on the parameters ofreview 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, c
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
theface of the record or for some reason akin thereto. This
Court in Kera/a SEB v. Hitech Electrothermics & Hydropower
Ltd. 2005 (6) SCC 651 held as under: (SCC p. 656, para D
JO)
"JO . ... 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 E
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. lfon appreciation
F
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.
G
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 H
192
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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 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 ~33'!>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 maintainable following was held in paragraphs
20.l and20.2:
"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:
VIKRAM SINGH @VICKY WALIA v. STATE OF PUNJAB
193
[ASHOK BHUSHAN, J.]
(ii) Mistake or error apparent on the face of the record;
A
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been
interpreted in Chhajju Ram v. Neid 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
B
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.
c
(iii) Review proceedings cannot be equated with the D
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
E
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
F
be advanced in the review petition.
G
(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 H
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[2017] 8 S.C.R.
A 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 ifthe
B 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
C under Article 137 read with Order 40 Rule 1. There has to be a material
error manifest on the face of the 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
D whether there are sufficient grounds as enumerated above for reviewing
the judgment of the criminal appeal affirming the death sentence awarded
to the applicants.
E
F
23. Learned counsel contended that the tape-recorded conversation
has been relied on without there being any certificate under Section 658
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 658 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
placed by the learned counsel on the judgment of this Court in Anvar
P. V. vs. P.K. Basheerand others, (2014) JOSCC 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.