There Can Be No Review Of Order Passed In Review Petition: SC Dismisses NGO Lok Prahari's Application [Read Order]

There can be no review of an order passed in review petition, the Supreme Court remarked while dismissing an application filed by NGO Lok Prahari to recall the order passed in review petition.

The Supreme Court, had, in September 2018, dismissed a PIL by NGO Lok Prahari which sought a declaration that since the law does not provide for a stay of conviction, even in the case it is so stayed by the appellate court for an offence attracting disqualification under Section 8 of Representation of People Act, any such stay order does not have the effect of wiping out the disqualification. The court had reiterated that once the conviction of an MP or MLA has been stayed by the appellate court under section 389 of the Cr. P. C., the disqualification under sub-sections 1, 2 and 3 of Section 8 of the Representation of the People's Act, 1951 will not operate.

Thereafter, the NGO filed a review petition which review petition, which was circulated in Chambers, and dismissed.

Later an application for recall was filed by the NGO, which the Registrar refused to Register. The matter was placed before the bench comprising of Justices AM Khanwilkar and Dinesh Maheshwari. It was contended that the Registrar has no power to refuse lodgment/registration of an application for recall, except for the three grounds stated in the Supreme Court Rules, 2013. In this regard, the bench observed:

The relief claimed in the said application, in our opinion, is unstatable. There can be no review  of an order passed in review petition. The fact that the applicant-petitioner was not heard before the order was passed in review petition cannot be the basis to file an 'application for recall'. For, the review petition has been decided on merits by circulation in Chambers as per the practice and rules of this Court 

Observing thus, the bench dismissed the application.

Lok Prahari vs.Election Commission of India Judgment

In the judgment passed in PIL filed by Lok Prahari, the bench comprising of the then Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar, had observed thus: "....it has been well-settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed. Once the conviction has been stayed by the appellate court, the disqualification under sub-sections 1, 2 and 3 of Section 8 of the Representation of the People Act 1951 will not operate. Under Article 102(1)(e) and Article 191(1)(e), the disqualification operates by or under any law made by Parliament. Disqualification under the above provisions of Section 8 follows upon a conviction for one of the listed offences. Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect",

It had also clarified that there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction- It had observed thus: "Clearly, the appellate court does possess such a power. In view of the consistent statement of the legal position in Rama Narang and in decisions which followed, there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction. Clearly, the appellate court does possess such a power. Moreover, it is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas has clarified, a stay of the conviction would relieve the individual from suffering the consequence inter alia of a disqualification relatable to the provisions of sub-sections 1, 2 and 3 of Section 8". 

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