Research › Browse › Judgment

Sikkim High Court · body

1975 DIGILAW 2 (SIK)

Maharaja of Sikkim, In re v. .

1975-11-10

RAJINDER SACHAR

body1975
Judgement ORDER :- Maharaja of Sikkim issued proclamation, being High Court of Judicature (Jurisdiction and Powers) Proclamation of 1955 hereinafter to be called the proclamation of 1955 defining the powers of High Court of Judicature of Sikkim. By it the High Court was made a final authority in all Judicial matters civil or criminal subject to the prerogative of mercy to be exercised by the Maharaja of Sikkim in case of conviction under the criminal law and the provisions made under Section II (b) of the Proclamation of 1955. Section II (a) contains the prerogative of mercy and Section II (b) provides that nothing contained herein shall affect the Maharaja's prerogative to set up a special Tribunal for the review of any case, civil or criminal, provided that such prerogative shall be exercised in only very special cases where, in the opinion of the Maharaja, there may be apprehension of miscarriage of justice. 2. Apparently in pursuance of power under Section II the parties aggrieved against the judgement of the High Court, used to file memorial petitions which were entertained and heard by Special Tribunal constituted under Section II(b) of the Proclamation 1955. 3. On 16-5-1975 by virtue of Constitution 36th Amendment Act Sikkim became the twenty second State of India and this High Court by virtue of Article 371(F)(I) became the High Court for the State of Sikkim from the appointed day. Article 371(F)(I) gives power to the President to make such adaptation and modification of the law as may be necessary or expedient for the purpose. In exercise of that power the President issued an order called the Adaptation of Sikkim Laws (No. 1) Order, 1975 under which by Paragraph 5 Proclamation of 1955 was kept alive in part but amongst other Sections 2, 3, 5 and 9 to 13 of Proclamation of 1955 were omitted. By the issue of that adaptation order the consequence was that Section II under which a special tribunal was to be constituted for the review of the judgement of the High Court ceased to exist. The result obviously was that subsequent to that period no special tribunal could be constituted to review the cases decided by this court because Section II(b) which empowered the Maharaja to constitute a Special Tribunal itself had ceased to be on the statute book. The result obviously was that subsequent to that period no special tribunal could be constituted to review the cases decided by this court because Section II(b) which empowered the Maharaja to constitute a Special Tribunal itself had ceased to be on the statute book. Now many memorial petitions had been filed prior to 16-5-1975, but had not been disposed of. In the absence of any law, these petitions would have to be dismissed as no longer surviving. Apparently to meet this eventuality the Adaptation of Sikkim Laws (No. 1) Amendment Order, 1975 had been issued which is deemed to have come into force from 26-4-1975. Para (2) of the said order reads as follows : "(2) Notwithstanding the direction in the Second Schedule for the omission of Section 11 of the High Court of Judicature (Jurisdiction and Powers) Proclamation of 1955, every memorial petition for the review of any case under that Section pending immediately before the commencement of this Order shall, on such commencement, stand transferred to the High Court and the High Court shall dispose of such petition as if such petition were an application review made to it." 4. There are at present a number of memorial petitions which had been filed prior to 16-5-1975 but had not yet been disposed of and which therefore fall within the amending order 1975 and have now to be disposed of as if they were applications for review made to this court. There is no indication in the amending order 1975 as to what is the scope of review provided by it. 5. In the State of Sikkim Code of Civil Procedure (V of 1908) or Criminal Procedure Code (Act V of 1898) as such are not applicable though principles are being applied for a long time. The Supreme Court Rules 1966 Part VIII Order 40, Rule I provides for review and lays down that the court may review its judgement or order but no application for review would be entertained in civil proceedings except on the ground mentioned in Order 47, Rule 1 of the Code and in criminal proceedings except on the ground of error apparent on the face of the record. I am of the view that so far as the civil matters are concerned, holding that the scope of review under the amending order 1975 is the same as provided for under Order 47, Rule 1 of the Code would be in accordance with the principles of justice and equity. Now it is well settled that in civil cases under Order 47, Rule 1 of the Code the review is not maintainable simply because the decision may be wrong on merits. The review under Order 47, Rule 1 in civil matters could only lie if there is discovery of new and important matter of evidence and which after the exercise of due diligence was not within the knowledge or could not be produced by a party at the time the decree was made or passed. Such evidence has to be of such a character that if it had been placed before the court it would have altered the judgement. Whether the circumstances are such or not will depend on each case but the courts are agreed that the mere fact that a question of law has been wrongly decided is not sufficient for granting review. 6. Normally, there is no review in the criminal matters and Section 369 of the Code of Criminal Procedure, 1898 lays down that save as provided by the Code or by any other law for the time being in force, no court when it signs the judgement shall alter or review the same except to correct a clerical error. Now if one follows the principle given in Section 369 of the Criminal Procedure Code, there would be no review except to the limited context mentioned therein. But keeping in view the fact that Section II of proclamation of 1955 also provided for review of criminal matters it seems to me that the intention of the amending order 1975 could not have been to exclude the criminal matter from the power of review given to this court because had it been so the exception should have been provided in the amendment order specifying that there will be no review in criminal matters. I feel that in the circumstances the rule framed by the Supreme Court which provides for review in criminal proceedings on the ground of error apparent on the face of the record would be an apt precedent to follow and I do so hold. I feel that in the circumstances the rule framed by the Supreme Court which provides for review in criminal proceedings on the ground of error apparent on the face of the record would be an apt precedent to follow and I do so hold. The error apparent on the face of record includes both error of law and fact and procedure if the procedure works manifest injustice and affects the merits of the cases. An erroneous view of law on a debatable point will not be an error apparent on the record. It is obviously not possible to define various cases which would fall within the ambit of error apparent on the face of record as it will depend on facts of each case. 7. It is in the light of these principles laid above that the present petition as well as other similar petitions have to be disposed of. 8. Though Mr. G.L. Subba and Mr. Bhattacharjee, Advocate General are not appearing in this case, they have addressed arguments and given me proper assistance. Both of them agree that the scope of review would be the one mentioned by me above namely in civil cases that provided in Order 47, Rule 1, Civil P. C. and in the criminal matters on the ground only of error apparent on the face of record.