Supreme Court

Ashiq Hussain Faktoo v. Union of India (UOI) and Ors.

MANU/SC/0962/2016

30.08.2016

Criminal

Doctrine of ex debito justitiae prevail over procedural law only where order of this Court passed without notice or where order has effect of eroding public confidence in justice delivery system

In instant writ petition, Petitioner assailed conviction order passed under Section 3 of Terrorist and Disruptive Activities (Prevention) Act, 1987 ("TADA Act") and under Section 302 read with Section 120B of Indian Penal Code, 1860 ("IPC"). Writ petition seeks interference with order of conviction and sentence imposed on Petitioner by this Court by its judgment and order dated 30th January, 2003 passed in Criminal Appeal No. 889 of 2001.

On strength of Constitution Bench judgment in Rupa Ashok Hurra, present writ petition would not be maintainable. It would also not be maintainable as a review petition as Review Petition (Criminal) No. 478 of 2003 filed by the writ Petitioner has been dismissed by this Court on 2nd September, 2003. Open Court hearing of review petitions in terms of judgment of this Court in Mohd. Arif alias Ashfaq, is available as of right only in death sentence cases.

Doctrine of ex debito justitiae would prevail over procedural law but would be applicable only in a situation where order of this Court had been passed without notice or where order has the effect of eroding public confidence in justice delivery system. Principle of ex debito justitiae is founded on recognition of a debt that, justice delivery system owes to a litigant to correct an error in a judicial dispensation. Its application, by very nature of things, cannot be made to depend on varying perceptions of legal omissions and commissions but such recognition of debt which have potential of opening new vistas of exercise of jurisdiction to relook concluded cases, must rest on surer foundations which have been discerned and expressed in Rupa Ashok Hurra . Frantic cries of injustice founded on perceived erroneous application of law or appreciation of facts will certainly not be enough to extend the frontiers of this jurisdiction.

Present writ petition under Article 32 of Constitution of India by no stretch of reasoning would fit into any of permissible categories of post conviction exercises permissible in law as laid down by this Court. Doctrine of ex debito justitiae being circumscribed by judgment of this Court in Rupa Ashok Hurra , it is for Petitioner to exhaust said remedy, if is he so inclined and so advised. Merely because in comprehension of writ Petitioner the judgment of this Court is erroneous would not enable Court to reopen issue in departure to established and settled norms and parameters of extent of permissible exercise of jurisdiction as well as procedural law governing such exercise.

Relevant

Rupa Ashok Hurra v. Ashok Hurra and Anr. [MANU/SC/0910/2002
] : (2002) 4 SCC 388, Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and Ors. [MANU/SC/0754/2014
]  : (2014) 9 SCC 737

Tags : Ex debito justitiae Doctrine Applicability

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