Bombay High Court
P. Varavara Rao vs The State Of Maharashtra And Anr on 4 May, 2022
Bench: S.S. Shinde, N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 162 OF 2022
IN
CRI. APPLICATION NO. 1458 OF 2019
1) Dr. P. Varavara Rao,
SHRADDHA Aged 83 years, Indian Inhabitant,
KAMLESH having address at 419, Himasai Heights,
TALEKAR
Digitally signed by Lane No. 6, Jawahar Nagar, Secunderabad
SHRADDHA
KAMLESH TALEKAR
Date: 2022.05.04
18:31:24 +0530
And at present residing at
Retreat House, Room No.17, 6,
Kane Road, Bandra (West),
Mumbai, Maharashtra400 050.
2) Vernon Stanislaus Gonsalves
Aged 64 years, Indian Inhabitant,
having address at C3, New Prem
Vasundhara, Mahakali Caves Road,
Andheri (East), Mumbai.
3) Arun Thomas Ferreira
Aged 46 years, Indian Inhabitant,
401, Sharon C.H.S. Annaji Sundar
Marg, Charai, Thane - 400 601.
All Applicants are at present in
Judicial Custody and lodged at
Taloja Central Prison, Navi Mumbai ....Applicants
Versus
1) The State of Maharashtra,
2) The ACP Swargate,
Pune City, Pune.
2A) The Director General,
National Investigation Agency,
CGO Complex, Lodhi Road,
New Delhi. ...Respondents
Mrs. S.K.Talekar,PS 1/20
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****
Mr.Sudeep Pasbola a/w. Mr. Neeraj Yadav, Ms. Sushan Abraham
and Mr. Barun Kumar i/b Mr. R. Sathyanarayanan for applicants.
Mrs.A.S.Pai, P.P. a/w. Mrs. Sangita D. Shinde, APP for State.
Mr.Sandesh Patil a/w. Mr.Chintan Shah and Mr. Vishal Gautham
for National Investigation Agency (NIA).
****
CORAM : S.S. SHINDE &
N. J. JAMADAR, JJ.
RESERVED ON : 22nd MARCH, 2022
PRONOUNCED ON : 4th MAY, 2022.
----------
JUDGMENT : (PER N.J. JAMADAR, J.)
1. The applicants-original applicant Nos.6 to 8 in Criminal
Application No. 1458 of 2019, which was decided by this Court,
alongwith Criminal Bail Application No.2024 of 2019 (Sudha
Bharadwaj Vs. National Investigation Agency and Anr.) by
judgment and order dated 1st December 2021 seek review of the
said judgment, to the extent Criminal Application No.1458 of 2019
came to be rejected thereunder.
2. By the said judgment and order dated 1st December 2021,
this Court was persuaded to allow Criminal Bail Application No.
2024 of 2021, preferred by Sudha Bharadwaj, the co-accused in
NIA Special Case No. 871 of 2020, arising out of FIR No. 4 of 2018,
initially registered with Vishrambag Police Station, for the offences
Mrs. S.K.Talekar,PS 2/20
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punishable under sections 120B, 121, 121(A), 124(A), 153A, 505(1)
(b) of Indian Penal Code, 1860 ('the Penal Code') and sections 13,
16, 17, 18, 18-B, 20, 38, 39 and 40 of the Unlawful Activities
(Prevention Act). 1967 ('UAPA'). The applicant therein was ordered
to be released on default bail.
3. The applicants assert that they are entitled to same relief as
has been granted to the co-accused Sudha Bharadwaj.
4. The review application arises in the backdrop of the
following facts :
(a) In the above-numbered crime, the applicants
were arrested on 28th August 2018. Charge-sheet
against the applicants and Sudha Bharadwaj, co-
accused/applicant in Criminal Bail Application
No.2024 of 2021 was fled on 21st February 2019.
(b) The applicants preferred an application before
the learned Additional Sessions Judge, Pune (Exh.169)
on 21st June 2019 with the assertion that the
applicants were in custody since 28th August 2018 and
cognizance of the offence had not been taken. Since
the applicants were in detention for well over 180 days,
without cognizance having been taken by the
Mrs. S.K.Talekar,PS 3/20
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competent Court, all applicants are entitled to be
released on bail under the provisions of section 167(2)
of the Code of Criminal Procedure, 1973 ('the Code')
read with section 43-D(2) of the UAPA.
(c) The said application was rejected by the learned
Sessions Judge by an order dated 5 th September 2019.
The applicants preferred Criminal Application No.1458
of 2019 with a prayer to quash and set aside the order
passed by the learned Sessions Judge, dated 5 th
September 2019 and declaration that the learned
Sessions Judge had no power to take cognizance of
the offence and the said cognizance was bad in law
and illegal.
(d) It would be contextually relevant to note that in
Criminal Bail Application No.2024 of 2021, the
applicant therein had assailed the extension of period
for investigation under section 43D-(2) of the UAPA on
the ground that the learned Judge who granted the
extension on 26th November 2018 was not legally
empowered to grant such extension and take
cognizance of the offence.
Mrs. S.K.Talekar,PS 4/20
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(e) The applicant therein further contended that
since the applicant had applied for release on default
bail under section 167(2) of the Code, prior to the
fling of the charge-sheet, the applicant had a right to
be released on default bail and ought have been so
released on 26th November 2018. It was further
contended that even if the period of house arrest was
excluded from consideration, the period of 90 days
would have expired on 25th January 2019 and since
the charge-sheet was fled on 21 st February 2019,
whilst the bail application of the applicant (Sudha
Bharadwaj) was still pending on that day, the
applicant ought to have been released on bail.
5. After an elaborate consideration and analysis of the
governing provisions and precedents, this Court was persuaded to
allow the Criminal Bail Application No.2024 of 2019 of the co-
accused-applicant and reject the Criminal Application No.1458 of
2019 of the instant applicants.
6. We deem it appropriate to extract the observations in the
concluding paragraphs of the said judgment, which read as
Mrs. S.K.Talekar,PS 5/20
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under :
143 In the case at hand, with the declaration that the
learned Additional Sessions Judge (Shri K.D. Vadane) had
no jurisdictional competence to extend the period of
detention under section 43-D(2)(b) of UAPA, the very
substratum of the prosecution case that the right to
default bail did not ripe into an indefeasible right, as the
period of detention was extended, gets dismantled. The
hard facts which thus emerge so far as the application of
Sudha Bharadwaj are : (i) that the period of detention of 90
days (excluding the period of house arrest) expired on 25 th
January, 2019; (ii) no charge-sheet was lodged; (iii) there
was no lawful order of extension of period of detention; and
(iv) an application preferred by Sudha Bharadwaj for
default bail awaited adjudication.
144 The matter can be looked at from a slightly different
perspective. As the period of detention was extended by the
learned Additional Sessions Judge by 90 days, the
applicant-Sudha Bharadwaj could not have applied for
default bail after 25th January 2019 till the fling of the
charge-sheet. Therefore, it cannot be urged that the
applicant-Sudha Bharadwaj did not make an application
during the said period and thus she did not avail the right
of default bail. On the touchstone of the guarantee of
personal liberty under Article 21 of the Constitution, in our
view, to deprive the applicant-Sudha Bharadwaj of the
indefeasible right on the premise that the application
preferred on 26th November 2018 (Exh. 43) was premature,
would be taking a too technical and formalistic view of the
matter. In our view, all the requisite conditions to release
the applicant-Sudha Bharadwaj on default bail stood fully
satisfed.
145 As regards the entitlement of the applicant Nos.1 to 8
in Application No.1458 of 2019 for default bail, a brief
revisit to the facts would be in order.
(i) The applicant Nos.1 to 5, namely, Sudhir
Prahlad Dhawale, Rona Wilson, Surendra
Gadling, Dr. Shoma Sen and Mahesh Raut were
arrested on 6th June 2018.
(ii) Charge-sheet against applicant Nos. 1 to 5
was fled on 15th November 2018.
Mrs. S.K.Talekar,PS 6/20
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(iii) Applicant Nos. 6 to 8, namely P. Varavara
Rao, Vernon Gonsalves and Arun Ferreira were
arrested on 28th August 2018.
(iv) Charge-sheet against the applicant Nos. 6
to 8 in Criminal Application No.1458 of 2019 and
Sudha Bharadwaj Bharadwaj, applicant in
Criminal Bail Application No. 2024 of 2021, was
fled on 21st February 2019.
146 Evidently, neither applicant Nos.1 to 5 claimed to
have fled an application for default bail under section
167(2) of the Code, after the expiry of initial period of 90
days from the date of their production before the learned
Additional Sessions Judge on 7th June 2018 till the fling of
the charge-sheet on 15th November 2018. Nor the applicant
Nos.6 to 8 preferred such application till the fling of the
supplementary charge-sheet, qua them on 21st February
2019, after the expiry of initial period of 90 days.
147 The applicants have, however, approached the Court
with a case that the applicants were detained beyond the
period of 180 days without the cognizance of the offences
having been taken by the competent Court. We have
extracted the averments in paragraph Nos. 4 to 6 of the
application. The applicants premised their claim for default
bail on the aspect of defect in taking cognizance of the
offences. For the applicants, the learned Additional
Sessions Judge could not have taken cognizance without
the case having been committed by the learned Magistrate.
148 In the aforesaid view of the matter, the learned
Advocate General and the learned Additional Solicitor
General were on a frm ground when they urged that the
applicants in Application No.1458 of 2019 did not 'avail of'
the right of default bail, by fling an application, within the
meaning of section 167(2) of the Code. We have seen that
where the accused fails to apply for default bail when the
right accrues to him and subsequently a charge-sheet is
fled before the Magistrate, the right to default bail would
get extinguished as it cannot be said that the accused
'availed of' his right to be released on default bail.
149 In this view of the matter, so far as the
applicant Nos. 1 to 5 in Application No.1458 of 2019, the
aspect of legality or otherwise of the extension of period of
Mrs. S.K.Talekar,PS 7/20
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detention is of no relevance as the applicants did not avail
of the said right to be released on default bail before the
charge-sheet was fled against them on 15 th November
2018. In the case of applicant Nos. 6 to 8, though we have
held that the order passed by the learned Additional
Sessions Judge on the report (Exh.33) on 26 th November
2018 was without jurisdiction, yet the said declaration is of
no assistance to the applicant Nos.6 to 8 as they did not
avail of the right to be released on default bail by fling an
application, after the expiry of the initial period of 90 days
and before the lodging of the charge-sheet on 21st February
2019. Resultantly, a crucial condition of 'availing of' the
right so as to cement it as an indefeasible right, has not
been fulflled and the right stood extinguished by the fling
of the charge-sheet on 21st February 2019. Failure to take
cognizance or defect in jurisdiction in taking cognizance,
once the charge-sheet was laid, does not entail the
consequence of default bail.
150 The conspectus of aforesaid consideration is that the
Application No.1458 of 2019 preferred by Sudhir Prahlad
Dhawale and 7 others is liable to be rejected. Whereas the
Bail Application No. 2024 of 2021 preferred by Sudha
Bharadwaj deserves to be allowed.
7. In the backdrop of the aforesaid observations and decision,
the applicants have preferred this application with the assertion
that the conclusion arrived at by this Court that the applicants
had not availed the right to be released on default bail, after
expiry of initial period of 90 days, is incorrect. An error has crept
in the observations to that effect, in paragraph Nos.146 and 149,
extracted above, and the said error being factual one, it is
necessary to correct the record of the Court.
Mrs. S.K.Talekar,PS 8/20
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8. The applicants claimed that they had also preferred Bail
applications Nos.4965 of 2018 (applicant No.1), 4966 of 2018,
(applicant No.2), and 4967 of 2018 (applicant No.3) for default
bail, on 30th November 2018.
9. In fact, the order dated 6th November 2019, passed by the
Sessions Judge, Pune, rejecting the application for default bail
under section 167(2) read with section 43D(2) of the UAPA refers
to Criminal Bail Application Nos.4966 of 2018, 4965 of 2018 and
4967 of 2018, the application preferred by the co-accused, Sudha
Bharadwaj at Exh.43, and application No.163 and 164. Therefore,
it is necessary to correct the factual errors in paragraph No.146
and 149, extracted above, and grant default bail to the applicants,
as well.
10. We have heard Mr.Sudeep Pasbola, the learned counsel for
the applicants, Mr.Sandesh Patil, the learned counsel for the NIA
and Mrs. A.S. Pai, the learned Public Prosecutor for the State. We
have also perused carefully the grounds in this application and its
accompaniments.
11. At the outset, Mr.Pasbola, the learned counsel for the
applicants submitted that the fact that section 362 of the Code
contains an interdict against the review of the judgment or fnal
Mrs. S.K.Talekar,PS 9/20
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order except to correct a clerical or arithmetical error does not
preclude the High Court from correcting an error as the High
Court is a Court of record. Thus, this Court, according to
Mr.Pasbola, would be within its rights in exercising the review
jurisdiction so as to correct an apparent error and prevent the
miscarriage of justice.
12. To lend support to this submission, Mr.Pasbola placed
reliance upon the judgments in the cases of M.M. Thomas Vs.
State of Kerala & Anr.1, Master Construction Co. (P) Ltd. Vs. State
of Orissa and Anr. 2, Lilly Thomas and Ors. Vs.Union of India and
Ors.3, Meena and Anr. Vs. Manager, Bajaj Allianz General
Insurance Co. Ltd. & Ors. 4, State of Maharashtra & Anr. Vs. Anil
, Mohd. Wasi and Anr. Vs. State6, Manoharan Vs. State 7
,
Shivdev Singh & Ors. Vs. State of Punjab & Ors. 8, Thahsildar Vs.
and Laxman Bapurao Ghaiwane Vs.
State of Maharashtra 10
,
13. We deem it appropriate to refer to few of these judgments. In
1 (2001) 1 SCC 666
2 AIR 1966 SC 1047
3 (2000)6SCC 224
4 (2019) SCC OnLine Bom. 1569
5 (2020) SCC OnLine Bom. 8948
6 (2000)6 SCC 224
7 (2020) 5 SCC 782
8 AIR 1963 SC 1909
9 RP. No.1220-2019 in WP(C)-32652-2018 Dt.17-02-2020
10 2012 SCC OnLine Bom.2313
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the case of Shivdev Singh & Ors. (Supra), the Constitution Bench
of the Supreme Court enunciated that it is suffcient to say that
there is nothing in Article 226 of the Constitution to preclude a
High Court from exercising the power of review which inheres in
every Court of plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors committed by it.
14. In the case of M.M. Thomas (Supra), the Supreme Court
again considered the following question :
Does it mean that the High Court has no power to
correct its own orders, even if the High Court is
satisfed that there is error apparent on the face of
the record?
15. The Supreme Court answered the aforesaid question in the
affrmative with the following observations :
"14 The High Court as a Court of Record, as
envisaged in Article 215 of the Constitution, must have
inherent powers to correct the records. A Court of Record
envelopes all such powers whose acts and proceedings are
to be enrolled in a perpetual, memorial and testimony. A
Court of Record is undoubtedly a superior court which is
itself competent to determine the scope of its jurisdiction.
The High Court, as a Court of Record, has a duty to itself
to keep all its records correctly and in accordance with
law. Hence, if any apparent error is noticed by the High
Court in respect of any orders passed by it the High Court
has not only power, but a duty to correct it. The High
Court's power in that regard is plenary. In Naresh
Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr, a
nine Judge Bench of this Court has recognised the
aforesaid superior statue of the High Court as a court of
plenary jurisdiction being a Court of Record."
......
17 If such power of correcting its own record is
denied to the High Court, when it notices the apparent
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errors its consequence is that the superior status of the
High Court will dwindle down, Therefore, it is only proper
to think that the plenary powers of the High Court would
include the power of review relating to errors apparent on
the face of record.
16. In the case of Municipal Corporation of Greater Mumbai &
Anr. Vs. Pratibha Industries Ltd. & Ors.11, the Supreme Court
reiterated the position in law as under :-
10 Insofar as the High Courts' jurisdiction to
recall its own order is concerned, High Courts are courts
of record, set up under Article 215 of the Constitution of
India. Article 215 of the Constitution of India reads as
under:-
"Article 215. High Courts to be courts of
record.-- Every High Court shall be a court
of record and shall have all the powers of
such a court including the power to punish
for contempt of itself."
It is clear that these constitutional courts, being courts
of record, the jurisdiction to recall their own orders is
inherent by virtue of the fact that they are superior
courts of record. This has been recognized in several of
our judgments.
17. The position in law is thus crystallized to the effect that the
High Court, being a Court of record, is vested with the jurisdiction
to recall or review an order, if it is satisfed that an apparent error
has crept in, in its order and it is necessary to correct the same
for preventing miscarriage of justice.
18. Mr.Sandesh Patil, the learned counsel for the NIA attempted
to draw a distinction between power to recall or review the order,
11 (2019) 3 SCC 203
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where initially the jurisdiction is exercised under Article 226 of
the Constitution of India and not under section 482 of the Code.
Since the order under review has been passed on an application
under section 482 of the Code, according to Mr.Patil, the bar
under section 362 of the Code, cannot be obviated by resorting to
inherent power under section 482 of the Code.
19. To bolster up this submission, Mr.Patil placed reliance on
the judgment of the Supreme Court in the case of Simrikhia Vs.
Dolley Mukherjee and Chhabi Mukherjee and Anr. 12
, wherein the
interplay between jurisdiction under sections 362 and 482 of the
Code was expounded in the following words :
5 Section 362 of the Code expressly provides that no
court when it has signed its judgment or fnal order
disposing of a case, shall alter or review the same
except to correct a clerical or arithmetical error save as
otherwise provided by the Code. Section 482 enables
the High Court to make such order as may be
necessary to give effect to any order under the Code or
to prevent abuse of the process of any Court or
otherwise to secure the ends of justice. The inherent
powers, however, as much are controlled by principle
and precedent as are its express powers by statute. If a
matter is covered by an express letter of law, the court
cannot give a go-by to the statutory provisions and
instead evolve a new provision in the garb of inherent
jurisdiction.
....
7 The inherent jurisdiction of the High Court cannot
be invoked to override bar of review under section 362.
It is clearly stated in Sooraj Devi v. Pyare Lal, [1981] 1
SCC 500 that the inherent power of the court cannot
be exercised for doing that which is specifcally
12 (1990) 2 SCC 437
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prohibited by the Code. The law is therefore clear that
the inherent power cannot be exercised for doing that
which cannot be done on account of the bar under
other provisions of the Code. The court is not
empowered to review its own decision under the
purported exercise of inherent power. We fnd that the
impugned order in this case is in effect one reviewing
the earlier order on a reconsideration of the same
materials. The High Court has grievously erred in
doing so. Even on merits, we do not fnd any
compelling reasons to quash the proceedings at that
stage.
20. Reliance was also placed on the judgments in the cases of
Hari Singh Mann Vs. Harbhajan Singh Bajwa and Others 13
and
State of Punjab Vs. Davinder Pal Singh Bhullar and Others 14
,
wherein the aforesaid limitation on the exercise of inherent power
under section 482 in the context of the interdict contained in
section 362 of the Code was enunciated.
21. We do not deem it appropriate to delve deep into the
controversy as regards the source of exercise of power to recall or
review the order. In our view, being a Court of record and having
plenary jurisdiction, if the High Court is satisfed that the order to
be reviewed suffers from a manifest error, which is not required to
be unearthed by an elaborate process of reasoning and such an
order leads to injustice, the High Court would be justifed in
exercising the power to recall or review the order or pass such
13 (2001) 1 SCC 169
14 (2011) 14 SCC 770
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order as may be found expedient in the facts of the given case.
22. This take us to the moot question as to whether the
judgment and order in the case at hand warrants review.
23. We have indicated the premise on which the applicants
approached this Court in Criminal Application No.1458 of 2019. In
the judgment under review itself, we had noted that the
applicants sought default bail by fling application (Exh.169)
before the learned Sessions Judge, on the premise that the orders
granting remand, authorizing detention of the accused and taking
cognizance were all illegal. For the sake of clarity, we deem it
appropriate to extract the observations in paragraph Nos.51 and
52 of the judgment under review, wherein we had reproduced the
contents of paragraphs 4 to 6 of the application (Exh. 169)
preferred by the applicants before the learned Sessions Judge :
51 In the backdrop of the nature of the challenge to the
prayer of the applicants, in this application, it may be apposite
to note the stand of the applicants in the application (Exh.169)
before the learned Additional Sessions Judge. The averments
in paragraph Nos.4 to 6 of the application make the stand of
the applicants abundantly clear.
"4 That cognizance of the present offence has
not been taken, and that this Hon'ble Court has
no jurisdiction to take cognizance of the offence
at this stage, as no Court of Session can take
cognizance of any offence as a Court of original
jurisdiction unless the case has been committed
to it by a Magistrate.
5 That, it is only when the present case is
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committed to the Court of Session by a
Magistrate, and after cognizance of the present
offence has been taken that the
applicants/accused may be remanded in
custody under any provision in law other than
Section 167 Cr.P.C.
6 That, in the absence of cognizance being
taken of the present offence and in the absence
of committal by a Magistrate, the
applicants/accused, having been in detention for
well over one hundred and eight days, are
entitled to be released on bail as per the
provisions of S.167(2) Cr.P.C. r/w S. 43-D(2) of
UAPA."
52 It becomes evidently clear that it was the stand of
the applicants before the learned Additional Sessions Judge
that the charge-sheet ought to have been fled before the
learned Magistrate, and, thereafter, the case ought to have
been committed to the Court of Sessions, and, only
thereupon, the cognizance of the offences could have been
taken, and that having not been done, according to the
applicants, they were entitled to be released on bail.
(underline added)
24. The learned Sessions Judge rejected the application for
default bail observing that the charge-sheet came to be fled
within the extended period and once the charge-sheet is fled, the
accused cannot claim default bail on the ground that cognizance
had not been taken within the period of 180 days.
25. In Criminal Application No.1458 of 2019 also the applicants
reiterated that the applicants' aforesaid stand that the learned
Sessions Judge, Pune could not have assumed jurisdiction and,
consequently, the orders granting remand and authorizing
custody would all become illegal. It was the stand of the
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applicants that the Sessions Judge could not have taken
cognizance of the offence otherwise than following the provisions
of section 193 of the Code. The applicants, thus, prayed for setting
aside the order dated 5th September 2019 passed by the learned
Sessions Judge.
26. What is conspicuous by its absence in the application
(Exh.169) before the learned Sessions Judge and in Criminal Bail
Application No.1458 of 2019 before this Court, is the fact that the
applicants had preferred an application for default bail after the
expiry of initial period of 90 days and before fling of the charge-
sheet on 21st February 2020. That constitutes the fundamental
distinction in the application of the applicant in Criminal Bail
Application No.2024 of 2021 (Smt.Sudha Bharadwaj) and
application of the instant applicants.
27. Specifcally noting this distinction, we had observed in
paragraph No.134 of the judgment and order dated 1 st December
2021, under review, as under :-
"134 In the light of signifcant distinction on the
factual score, the claim of the applicants in both the
applications warrants independent consideration......."
28. When confronted with the aforesaid fact-situation,
Mr.Pasbola, the learned counsel for the applicants fairly conceded
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that it was not the stand of the applicants before this Court, while
deciding the Criminal Application No.1458 of 2019 that the
applicants had also preferred application for default bail after the
expiry of initial period of 90 days and they were also entitled to be
released on default bail, on the said count, like the applicant in
Criminal Bail Application No.2024 of 2021.
29. We must record that hearing in Criminal Bail Application
No.2024 of 2021 was initially concluded and, thereafter, the Bail
Application No.1458 of 2019 was heard. The applicants had the
beneft of the submissions canvassed in Criminal Bail Application
No.2024 of 2021. Yet, the fact that the applicants had also fled
applications for default bail was not brought on the record by the
Court. Nor oral submission was canvassed.
30. As is evident from the observations in the judgment under
review, extracted above, the application of the applicants
proceeded on a totally different premise. The attack was on the
ground that though charge-sheet was fled within the extended
period, yet cognizance was not taken within the said period and,
therefore, the applicants were entitled to be released on default
bail.
31. The situation which thus emerges is that the case now
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sought to be urged in the review application was nowhere pleaded
or canvassed before the Court till the application came to be
decided.
32. On the basis of the material which was placed before us,
over which there is no controversy, we observed in paragraph 146
of the judgment that neither applicant Nos. 1 to 5 claimed to have
fled an application for default bail..........nor the applicant Nos.6
to 8 preferred such application till fling of the supplementary
charge-sheet. In our view, our observations in paragraph Nos.146
to 149 to the extent they refect upon the applicants herein having
not availed of right to be released on default bail, are based on the
record which the applicants had placed before us.
33. To put it in other words, the case now sought to be urged
was not at all argued, much less, pleaded before the Court. The
copies of bail application Nos.4965 of 2018, 4966 of 2018 and
4967 of 2018, which are annexed to the Review Application, were
neither placed before the Court nor referred to in Criminal
Application No.1458 of 2019. We, therefore, fnd it diffcult to
accede to the submission on behalf of the applicants that a
factual error had crept in. A re-hearing of the matter on a point
which was not at all urged, is impermissible in law, under the
Mrs. S.K.Talekar,PS 19/20
.. 20 .. ia-162-2022 in BA-1458-2019+ J.doc
guise of review. Nor can review be claimed or asked for merely for
a fresh hearing or canvassing a totally new submission. It is trite
that disguised as a review, it is not permissible even for an
erroneous decision to be, "re-heard and corrected".
34. Thus, in our view, no case for exercise of review jurisdiction
is made out. Since an apprehension was expressed that the
observations in paragraph No.146 and 149 of the judgment and
order, under review, extracted above, may operate to the prejudice
of the applicants, we clarify that the observations were based on
the case pleaded, documents placed and submissions canvassed
before us, while deciding the said application.
35. With the aforesaid clarifcation, we are inclined to reject the
application.
36. Hence, the following order :
ORDER
The application stands rejected.
[ N. J. Jamadar, J. ] [ S.S. Shinde, J. ]
Mrs. S.K.Talekar,PS 20/20
