333-348 (hereinafter referred to as ‘Transfer Petition’), whereby, this Court allowed the said petition filed by Petitioner/accused Ketan Kantilal Seth and directed the transfer of pending matters as prayed by him in the petition to the Court of Principal Judge, Bombay City Civil and Sessions Court, Fort, Mumbai – 400032, Maharashtra. Recall/modify the order dated 09.09.2022 passed by this Hon’ble Court in the present Transfer Petition, transferring all the pending trials against the Petitioner most of which are already at final stage of hearing by the Ld. 09.09.2021 – This Court issued notice in the Transfer Petition and directed the other co-accused persons arrayed as respondents to be served.
13.05.2022 – Stay granted by this Court vide order dated 05.10.2021 was modified on the pretext that the proceedings in R.C.C. 1935/2022 seeking ‘modification/recall’ of the order dated 09.09.2022 with other prayers primarily on the ground that no opportunity of hearing was afforded to the State on the day of final hearing to oppose the Transfer Petition. The criminal cases, as specified in para 1 [clause (i) to (xvi)] of this order shall be transferred from the Courts, where those are pending, to the court of Principal Judge, Bombay City Civil and Sessions Court, Fort, Mumbai – 400032, Maharashtra; b. it is further directed that the transferor Courts shall immediately transmit the record of concerned cases to the Principal Judge, Bombay City Civil and Sessions Court, Fort, Mumbai – 400032, which should reach on or before 31.10.2022; d. 147/2002 and in fact, this Court has effectively set-aside the order dated 24.06.2021 passed by Bombay High Court in Criminal Application
No 628/2021 vide which the Trial Court was directed to conclude the trial in R.C.C. No 1935/2022
and sought recall/modification of the order dated 09.09.2022 predominantly on the ground that no opportunity of hearing was given to the State on the date when the matter was finally heard and same amounts to violation of principles of natural justice. Vikas Singh, learned senior counsel appearing on behalf of accused Ketan Kantilal Seth, vociferously opposed both the applications and submitted that the Transfer Petition was heard by consent of the parties and the submissions made before this Court are mere reiterations and purely an attempt to re-open the case for hearing on merits which is not permissible as per Order XII Rule 3 of Supreme Court Rules, 2013 (hereinafter referred to as “Supreme Court Rules”).
Our attention was specifically drawn to the fact that in affidavit filed by said intervenor before Bombay High Court, he has claimed to be a member of NDCCB Ltd. 20, 23, 25, 26, 30, 31, 32 and 34 in the instant matter, it has been submitted that they have already filed Review Petition [as stated in Para 3 (x) above] seeking review of order dated 09.09.2022. Subject to the provisions contained in Order XLVII of these rules, a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission. 5041 of 2021)’
while answering the issue on similar Miscellaneous Application filed for ‘clarification/modification’, this Court observed as thus – “ 8. The Court may either dismiss the petition or direct notice to the opposite party….”
In case notice is issued, the review petition will be listed for hearing, after notice is served.
By describing an application as one for “clarification” or “modification”, — though it is really one of review — a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application.
On perusal of the order dated 09.09.2022, it is apparent that the application filed by the intervenor seeking intervention in the Transfer Petition was dismissed in absence of any grounds in the application to show that intervenor had any direct or substantial nexus in the matter or that he was adversely affected by any question of law. Further, this Court was of the view that the cases which were referred to in clause (i) to (xvi) in paragraph 1 of the said order and were pending since more than 20 years with no substantial progress made in trial proceedings, and that allegations made in all the cases were similar and most of the witnesses were from Maharashtra. On the other hand, supplementing the argument of State of Maharashtra, Shri Mahesh Jethmalani persuaded us to recall the order, however, Shri Vikas Singh contested the said arguments on the anvil of Order XII Rule 3 of Supreme Court Rules and submitted that such recall is not permissible under the said provision. After hearing learned counsels for the parties, in our view the recall of the entire order as prayed for on the instance of the intervenor is not justified, in particular looking at the detailed discussion made in order dated 09.09.2022.
No 147/2002, arguments were finally heard, and hearing was concluded, therefore, clause (e) of paragraph 13 of order dated 09.09.2022 prima-facie may cause pre-judice to complainant if the trial is restarted from the stage of framing of charges. Although, in the order of the Transfer Petition, some observations with respect to hearing in the said trial is there, but it is due to omission and re-opening of the entire case R.C.C. Therefore, now on joining of new incumbent, the final arguments in the said trial ought to be heard by the new presiding officer to pronounce the judgment.
Case Title: KETAN KANTILAL SETH Vs. THE STATE OF GUJARAT (2023 INSC 671)
Case Number: / 0
