Difference Between Review and Curative Petition

Edited by Diffzy | Updated on: October 06, 2022

       

Difference Between Review and Curative Petition Difference Between Review and Curative Petition

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Introduction

Both review and curative petitions are filed with the Supreme Court, but they are very different in nature and scope. What are the differences between these two types of petitions? Read on to find out more about how they work and how they're used in the legal system.

While both reviews and curative petitions are filed as appellate remedies, they serve very different purposes. A review is usually filed to argue that new evidence or arguments should be taken into account in a case already being heard by an appellate court. In other words, courts use reviews to expand on arguments they've already made while reviewing lower-court rulings. Curative petitions, on the other hand, can be used at any time during an appeal process to argue that new information was just discovered or came out of the left-field (to use American baseball parlance). In short, curative petitions are used after an initial hearing has been completed.

This chart explains exactly how and when curative petitions apply to certain types of cases. Also, it clearly defines how to review proceedings differ from curative petitions. There are specific rules that guide each of these proceedings, but, generally speaking, there are different outcomes to each type of proceeding. It all depends on what stage your case is in as well as who you’re trying to get your hands on: do you want someone removed from office or are you simply asking for a delay in proceedings so that proper procedures can be followed? Regardless of which approach you’re taking, understand that it’s much easier to win if you have an attorney who knows the ins and outs of these procedures. Even then, however, sometimes things don’t go quite as planned. At Adkins & Brown Law Firm we have decades of experience handling both review and curative petitions.

Brief Comparison Chart between a Review and a Curative Petition: A brief comparison between review proceedings and curative petitions. Both actions allow parties to question court decisions or bring motions before higher courts for consideration, though they serve very different purposes.

The difference between a review and a curative petition is not always clear. To understand what each process entails, it’s important to know what kind of case you’re dealing with as well as who your opponent is. Here are some key differences that will give you an idea of what your next steps should be if you think one type of proceeding may be better suited for your case than another: -Reviews are used in cases where there has been an error in judgment due to improper procedure during the trial; whereas, curative petitions are filed when there has been an error in judgment based on incorrect facts or evidence presented at trial. -The party filing a review can only file after they have exhausted all other remedies available to them through direct appeal.

In other words, they must first bring their claim before an appellate court and ask for relief from that court before being able to file a review. If you don’t do so, then your case won’t be eligible for consideration by higher courts. On the other hand, someone filing a curative petition does not need to exhaust all available appeals before doing so because it is considered a separate action from the direct appeal. -A person filing a review is seeking to overturn a decision made by a lower court while someone filing a curative petition wants to correct something that was done incorrectly by an appellate court. Because of these distinctions, it’s easy to see why reviews can take longer than curative petitions because they often require more time and research into procedural errors made during proceedings

Review vs Curative Petition

A review petition can be filed in two cases: either when an accused person has not been previously prosecuted for an offense for which he is being prosecuted, or if he has been previously acquitted by a court but it appears that evidence on which such acquittal was based was false. In other words, review petitions are filed to find out whether there is any illegality in prior proceedings or whether they were conducted improperly. A curative petition can be filed only when someone has already been convicted of an offense and seeks re-investigation of such offenses.

An investigation should have already been completed before filing a curative petition. So basically, whereas review petitions are related to procedures involved, curative petitions have something to do with actual case data and investigations already conducted by police or prosecution. If a judge rejects your review petition, you may file another one after one year after the date of order rejecting your previous review petition. If a judge rejects your curative petition, you cannot file another one. For both types of petitions, your lawyer must give notice to Public Prosecutor about his intention to file them within 30 days from the date of conviction/acquittal by the High Court/Court trying your case.

Difference Between Review petition and Curative Petition in Tabular Form

Table: Review vs Curative Petition
Parameter of Comparison
Review Petition
Curative Petition
Define
A review petition is a petition for review, which is usually referred to as a judicial review.
A curative petition is used when an issue is discovered before your direct appeal was heard.
Established Provision behind the appeal
Under Article 137 of India and Article 145, the Supreme Court of India can reconsider any end controlled by it.        
Under Article 137 of India and Article 145, the court can rethink any end managed by it.
The seat of Judges.
Oral contention doesn't happen and the appeal is rethought by the Judges who controlled the past verdict.    
The request is heard by three high positioning legal counselors with extra to the adjudicators who passed the decision. Oral contention doesn't happen
Who can document a request?
The solicitor who feels angry about any choice of the Supreme Court on any observable mix-up can document a survey petition.           
It might be filled after a survey claim has been excused in the last conviction.
When to record a request?
Should be documented 30 days from the date of judgment and should be set before a similar Bench of Judges which had conveyed the decision
No time limit is given for filling a Curative request however it should be Filed within a sensible time.
Reason for petitions
The solicitor probably found new proof which they neglected to create under the watchful eye of the court when the court passed the judgment. 
After the audit request has been excused and when the candidate checks that there was an infringement of standards of regular uprightness and he was not heard by the court before passing the choice.

What is Review?

A review petition is a petition for review, which is usually referred to as a judicial review. The petitioner wants an order of a court telling another court or some other government body to do something (or to stop doing something). For example, if your local health department denies your application for permits to open a new bar/restaurant, you can challenge their decision by filing what’s called an appeal, aka review. You want them to review their decision or show that they were right. A bar/restaurant wouldn't file a curative petition—but it could file either one of these kinds of petitions to get its business up and running. It doesn't want money; it just wants to open up shop.

What is a Curative Petition?

Even though there are 2 main categories of post-conviction relief available to people in prison, there are different types of petitions filed. A curative petition is used when an issue is discovered before your direct appeal was heard. The issue must be new evidence, not something that could have been brought up earlier but wasn't. For example, if you were convicted because a police officer lied about what you said during your arrest - something that could have been caught at trial or on appeal - it can't be raised as a curative petition now.

The Main Difference Between Review and Curative Petition in Points

  • A review petition can be filed by anyone aggrieved or affected by a final judgment of the High Court. Whereas, the curative petition can be filed only if an impugned order suffers from substantial error apparent on the record, which has occasioned a miscarriage of justice and not otherwise.
  • Thus it may be seen that while in the case of review petition court has limited jurisdiction to examine records; curative powers vest with the high court to examine all grounds or considerations whether they are legal or equitable.
  • It is for consideration of the court as to whether the petition deserves acceptance or not. In the case where there is a substantial error apparent on record and also there exists no other ground available for filing a review petition then curative power vested with the high court can be invoked.
  • In Indian Law, curative refers to a process used in judicial systems around the world when a judge makes an error so fundamental that it cannot stand without causing injustice (for example, due to prejudice). The word curative comes from the Latin word cura, meaning care, concern, and attention. This power is also known as judicial review. It is also referred to as error correction or de novo review. Under Article 136 of the Constitution of India, Supreme Court has the power to review its judgments under certain circumstances.
  • This is called as Power of Judicial Review. High Courts have similar powers under Article 226 of the Constitution of India. This is called as Power of De Novo Review. A judgment can be reviewed if there is a substantial and material difference between facts found by the trial court/lower appellate court and those found by the higher appellate court. If such a difference exists then a lower court decision can be set aside on grounds of miscarriage of justice. When reviewing a case, it is not required for the petitioner to prove his innocence but only needs to show that:
  1. There was Substantial Error Apparent On Record;
  2. That has Occasioned Miscarriage Of Justice;
  3. That he did not file any other petition before the high court challenging the same order/judgment.
  • A curative petition may only be filed after exhausting all available remedies including filing a review petition and any other appeal. One cannot directly file a curative petition against an order passed by another bench of the same high court. While filing a curative petition one should not challenge the correctness of impugned order but must explain how impugned order suffers from substantial errors apparent on record which resulted in miscarriage of justice.
  • In the case where there is no evidence to show that the petitioner has suffered in any manner due to impugned order then the court can dismiss the curative petition summarily. Court has discretionary power to accept or reject curative petitions; courts don’t need to accept curative petitions.
  • It is also possible that if the court rejects the review petition, then the petitioner can again approach Supreme Court with another review petition as SC has the power to grant remedy more than once in appropriate cases, if an earlier remedy was denied without sufficient reason or if facts are materially different in the second case than they were in the first case. However, in such a case original decision will remain unchanged unless the court decides to exercise its powers under Article 136 of the Constitution of India.
  • The court can exercise its powers under Article 136 even if:
  1. There is no substantial difference between findings of the trial court/lower appellate court and those found by the higher appellate court;
  2. If such difference exists but does not occasion miscarriage of justice. Under Article 136, Supreme Court/High Courts have wide powers to correct their errors (whether committed judicially or non-judicially). They do not need permission from any authority before exercising their powers under Article 136.

Conclusion

A curative petition differs from a review in that it is only available to individual prisoners who have exhausted all possible appellate remedies. It is limited to an extremely narrow set of circumstances, where petitioners can demonstrate actual innocence. A curative petition cannot be filed if:

  1. evidence could have been previously discovered through due diligence;
  2. claims are untimely; or
  3. claims fail to state sufficient facts.

These criteria limit successful petitions dramatically. For example, even prisoners who had previously been denied access to DNA testing are prohibited from filing under OPP because they were not innocent enough in their original appeal.


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"Difference Between Review and Curative Petition." Diffzy.com, 2022. Fri. 09 Dec. 2022. <https://www.diffzy.com/article/difference-between-review-and-curative-petition-377>.



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