Supreme Court reverses its own order after realizing it forgot to hear the victim

The Supreme Court transferred his case to another city without even telling him. He found out after it was done.

Rajendra Khare had filed a police complaint. The police investigated. A charge sheet was filed. The case was waiting for trial before a magistrate in Delhi. Then, silently, the accused walked into the Supreme Court and asked for the case to be moved to Allahabad. They did not name Khare in their petition. The Court allowed the transfer on the very first hearing — no notice, no objection, no Khare. The order sheet dated 18.05.2018 recorded the decision without a word from him. He learned about it only after the order had been passed.

The question before the Supreme Court was simple: can a criminal case be transferred without hearing the person who filed the original complaint? The answer, from a bench of Justice Ashok Bhushan and Justice Indu Malhotra in January 2021, was a firm no.

When the case disappeared from Delhi

It began at the Mangol Puri police station. Rajendra Khare filed an FIR (a written complaint that starts a police investigation) against certain persons for extortion. The police investigated, filed a charge sheet, and the case was pending before a Metropolitan Magistrate in Rohini Courts, North-West Delhi. On March 2, 2018, the magistrate took cognizance (formally acknowledged the case could proceed) and issued summons to the accused. The file sat unopened on the magistrate's desk for just a moment longer before the accused moved to change everything.

The accused then filed a transfer petition in the Supreme Court under Section 406 of the Code of Criminal Procedure, 1973 (the provision that gives the Supreme Court power to move a case from one state to another). They wanted the case moved from Delhi to Allahabad. Critically, they did not name Khare — the complainant — as a respondent in the transfer petition.

On May 18, 2018, the Supreme Court allowed the transfer on the very first hearing. The order was passed ex-parte (without hearing the other side). The Court did not issue notice as required under Order XXXIX Rule 2 of the Supreme Court Rules, 2013 (the rule that mandates notice be given to all parties before a transfer petition is decided). The order gave liberty to "respondents" to approach the Court if aggrieved. But Khare was not a respondent. The order sheet dated 18.05.2018 recorded the decision — his case had been moved without a single word from him.

Why the recall application failed

Khare filed a miscellaneous application on June 5, 2018, seeking recall of the transfer order. The Court dismissed it summarily. A less determined litigant might have stopped there. But Khare filed a review petition under Article 137 of the Constitution (the Supreme Court's power to review its own judgments) read with Order XLVII Rule 1 of the Supreme Court Rules, 2013. The review petition, numbered Review Petition (Crl.) No. 671 of 2018, challenged the very foundation of the transfer order.

He argued two things. First, the transfer order violated natural justice (the principle that no one should be judged without being heard) because he was never heard. Second, the mandatory procedure under Order XXXIX Rule 2 requiring notice before transfer was not followed.

The accused opposed the review. They argued that the rejection of the recall application meant Khare had exhausted his remedies. The Court, however, was not persuaded.

What the Court found

The Supreme Court agreed with Khare. The bench held that "the rejection of a miscellaneous application seeking recall of a judgment does not preclude the aggrieved party from filing a review petition under Article 137 of the Constitution read with Order XLVII Rule 1 of the Supreme Court Rules, 2013." Recall and review are distinct proceedings. The former is a request to the same court to undo its order. The latter is a statutory remedy under the Constitution. One cannot substitute for the other.

The Court then examined the transfer order itself. It found that the order was passed on the first day of preliminary hearing without issuing notice as mandated by Order XXXIX Rule 2. The complainant — the person who set the criminal process in motion — was not even made a party. The bench held that this constituted an error apparent on the face of the record (a mistake so obvious that it jumps out without detailed examination). Such an error warrants review under Article 137 of the Constitution read with Order XLVII Rule 1 of the Supreme Court Rules, 2013.

The Court drew on several precedents to support its reasoning. In Vikram Singh alias Vicky Walia and Anr. v. State of Punjab and Anr. — (2017) 8 SCC 518, the principles governing review were elaborated. In Mukesh v. State (NCT of Delhi) — (2018) 8 SCC 149, the scope of review was further clarified. The Court also cited Sow Chandra Kante v. Sk. Habib — (1975) 1 SCC 674, which established that an error apparent on the face of the record must be self-evident, and P.N. Eswara Iyer v. Supreme Court of India — (1980) 4 SCC 680, which discussed the procedural aspects of review. Delhi Administration v. Gurdip Singh Uban and Ors. — (2000) 7 SCC 296 and M.S. Ahlawat v. State of Haryana and Anr. — (2000) 1 SCC 278 were also cited to reinforce the distinction between recall and review.

The Court also rejected the argument that the liberty granted to "respondents" in the transfer order protected Khare. Since Khare was not a respondent, the liberty meant nothing. His statutory right to file a review petition was not exhausted by the filing and rejection of a miscellaneous application. The Court held that the rejection of a recall application cannot take away the statutory right of review.

Why this case matters for every litigant

This judgment is a reminder that procedural rules exist to protect parties, not to trap them. The Supreme Court Rules require notice before a transfer petition is decided. That requirement is not a technicality — it is a safeguard. When a court bypasses it, the resulting order is vulnerable to review.

For practitioners, the takeaway is clear: if a client is the complainant in a criminal case and the accused files a transfer petition, ensure the client is named as a respondent. If the client is not named, move immediately to intervene. And if an order is passed without hearing the client, do not assume the recall application is the only remedy. A review petition remains available.

THE PLAY: When a transfer petition is allowed without notice to the complainant, the order can be reviewed — and the rejection of a recall application does not bar that review.

The Court allowed the review. It recalled the order dated May 18, 2018. It revived Transfer Petition (Crl.) No. 262 of 2018 for fresh hearing. It impleaded Khare as respondent No. 4 in the transfer petition. The Court gave one week's time to respondent No. 4 and other respondents to file counter affidavits, and one week for filing rejoinder. The transfer petition was listed for hearing on February 12, 2021. The contempt petition stood closed. This time, everyone would be heard. The file, now thick with procedural history, would finally be heard on February 12, 2021.