AFR
(Order reserved on 03.07.2021) (Order delivered on 30.07.2021)
Court No. - 46
Case :- CIVIL MISC REVIEW APPLICATION No. - 121 of 2021 Applicant :- State Of U.P. And 5 Others Opposite Party :- Manoj Kumar And 5 Others Counsel for Applicant :- Sudhanshu Srivastava,Jagannath Maurya
IN
Case :- WRIT - C No. - 14512 of 2021 Petitioner :- Manoj Kumar And 5 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ajay Kumar,Amrendra Nath Singh (Senior Adv.) Counsel for Respondent :- C.S.C.
Hon'ble Surya Prakash Kesarwani,J. Hon'ble Gautam Chowdhary,J.
(Per: Surya Prakash Kesarwani, J.)
1. Heard Sri Manish Goyal, learned Additional Advocate General, alongwith Sri Ajeet Kumar Singh, learned Additional Advocate General assisted by Sri J.N. Maurya, learned Chief Standing Counsel and Sri Sudhanshu Srivastava, learned Additional Chief Standing counsel; and Sri Amrendra Nath Singh, learned senior advocate, assisted by Sri Ajay Kumar, learned counsel for the petitioners.
2. Sri Manish Goyal, learned Additional Advocate General submits as under :
i. The writ petition was filed by the petitioners concealing material facts of the case with respect to FIR being Case Crime No.222/2021, dated 08.06.2021, under Section 364 IPC, P.S. Narkhi, District - Firozabad, against petitioner Nos. 1,2 & 3, Case Crime No. 68/2021, dated 07.04.2021, under Sections 147, 188, 341, 353, 171 E, 171 H, I.P.C. read with Section 7 of the Criminal Law (Amendment) Act, 1932 against the petitioner No.4 and rejection of his anticipatory Bail Application No.1802 of 2021 by the Additional Sessions Judge Fast Track Court No.1 Firozabad, vide order dated 30.06.2021, rejection of anticipatory bail application No.292 of 292 of 2021 arising out of case crime no.222 of 2021, under Section 364 I.P.C. by the Court of Additional District Judge/Specal Judge POSCO Court No.2, Firozabad, vide order dated 02.07.2021 and Case Crime No.73/2021, under Sections 341, 323, 504, 506 and 307 I.P.C., P.S. Basai, Mohamadpur, District - Firozabad (FIR dated 09.05.2021) against the petitioner No.6.
ii. Since against the petitioners F.I.Rs. were registered, therefore, the petitioners even though elected members of Zila Panchayat; have no right to vote in the election of President, Zila Panchayat of Firozabad, in view of the law laid down by Hon'ble Supreme Court in Chief Election Commissioner and others Vs. Jan Chaukidar (Peoples Watch) and others (2013) 7 SCC 507 (paras 6 & 7) inasmuch as persons in lawful custody have no right to vote and they shall not be deemed to be electors.
iii. The writ petition was not maintainable in view of the provisions of Article 243 O of the Constitution of India which provides that no election of any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State. Reliance is placed on the judgment of Hon'ble Supreme Court in (1996) 3 SCC 416 (para 7,8, 9, and 11) Boddula Krishnaiah Aiyar and another Vs. State Election Commissioner A.P. and others. Since the facts regarding criminal cases as stated above have been concealed by the petitioners, the petitioners can not be said to have approached the Court with clean hands which shall dis-entitle them to any relief under Article 226 of the Constitution of India.
iv. The effect of the order dated 02.07.2021, passed by this Court is that the petitioners' arrest have been stayed.
3. Sri Amrendra Nath Singh, learned senior counsel representing the petitioners, opposed the Review Application and submits as under :
i. A review application can be entertained only if the order sought to be reviewed suffers from patent error of law, glaring omission of facts and apparent mistake which neither exists nor has been alleged in the review application nor has been argued. Therefore, the review application itself is not maintainable. Reliance is placed upon a judgment of Hon'ble Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi AIR 1980 SC 674.
ii. The submissions made by the learned Additional Advocate Generals and the allegations made in the Review Application are false inasmuch as the petitioners have disclosed in paragraphs 13 and 14 about the Case Crime No.73 of 2021, under Sections 341, 323, 504, 506 and 307 I.P.C., P.S. - Basai, Mohamadpur, District - Firozabad and Case Crime No. 68/2021, dated 7.4.2021, under Section 147, 188, 341, 353, 171E, 171 H, I.P.C. read with Section 7 of the Criminal Law (Amendment) Act 1932, P.S. - Eka, District - Firozabad. The petitioners have also disclosed in paragraph 7 of the writ petition the fact regarding FIR being Case Crime No.222/2021, under Section 364 IPC, P.S. Narkhi, District - Firozabad, lodged against unknown persons and also annexed as Annexure 3 to the writ petition.
iii. The respondents have not disputed at all the facts stated in paragraphs 8,9,10,11 and 12 of the writ petition which clearly proves that ruling political party and members in collusion with the police authorities and District Administration are bent upon to ensure that the candidate of the ruling party wins as President of Zila Panchayat. For that purpose alone, petitioners have been falsely implicated which is nothing but a political vendetta.
iv. The conduct of the respondents is in contrast to their constitutional duty for free and fair election. In fact the respondents are destroying the democracy.
v. Bare perusal of the order dated 02.07.2021, passed by this court leaves no manner of doubt that the order was passed with the consent of learned counsels for the parties. The factum of consent has not been disputed. Therefore, the review application is not entertainable. All the petitioners have casted their votes today. Therefore, no cause of action survives for filing the review application.
vi. This court while passing the order dated 02.07.2021 neither stayed the arrest of the petitioners nor made any comment with respect to the FIRs. lodged against the petitioners nor interfered with the FIRs. in any manner and for this reason the petitioners, after they casted their votes today; have been arrested by the police.
vii. The petitioners shall take legal recourse against the criminal cases in which they have been falsely implicated.
viii. The petitioners have neither been disqualified as elected members of Zila Panchayat nor they have been declared disqualified to cast their vote in the election of President Zila Panchayat, Firozabad. Therefore, the order dated 02.07.2021 does not suffer from any manifest error of law.
ix. The Review Application is wholly groundless, misconceived and frivolous and deserves to be dismissed with exemplary cost.
4. Before we proceed to examine the rival contentions of the parties, it would be appropriate to reproduce the order dated 02.07.2021 passed by this Court, against which the State-respondents have filed the present review application. The aforesaid order dated 02.07.2021 passed by this Court, is reproduced below:
“Heard Sri Amrendra Nath Singh, learned senior advocate assisted by Sri Ajay Kumar, learned counsel for the petitioners and Sri Ajeet Kumar Singh, learned Additional Advocate General for the State-respondents.
Petitioners claim that they are elected members of Zila Panchayat and have a right to vote in the election of President of Zila Panchayat, District Firozabad scheduled for 03.07.2021 but the respondents are attempting not to allow the petitioners to cast their votes on the basis of a First Information Report No.0222 of 2021, dated 08.06.2021 under Section 364, I.P.C., P.S. Narkhi, District Firozabad with respect to an alleged incident dated 06.05.2021. The aforesaid FIR is against unknown persons. The petitioners are not named in it. Learned counsel for the petitioners further submits that the petitioners have a right to cast their votes but they are being prevented by the respondents from doing so, so as to help another candidate. He further submits that a direction may be issued to the respondents to ensure that the petitioners may cast their vote safely.
Sri Ajeet Kumar Singh, learned Additional Advocate General for the State- respondents submits that if the petitioners are members of Zila Panchayat and have a right to cast vote in the election of President of Zila Panchayat, Firozabad, the State is under constitutional duty for free and fair election.
Considering the submissions of the learned counsels for the parties and with their consent, this writ petition is being finally disposed off without calling for a counter affidavit, directing the respondents to ensure that the petitioners may cast their votes safely in the election of President, Zila Panchayat, Firozabad, scheduled to be held on 03.07.2021.
Sri Ajeet Kumar Singh, learned Additional Advocate General for the State- respondents shall intimate this order in writing today itself to the respondent Nos.2 to 6 for compliance.
It is made clear that we have not expressed any opinion with respect to the criminal case, if any, either registered against the petitioners or in which they are wanted.
With the aforesaid directions, the writ petition is disposed off.”
5. Perusal of the aforesaid order would clearly reveal that the aforesaid order was passed with the consent of the learned counsels for the parties and on the statement of the learned Additional Advocate General that if the petitioners are members of Zila Panchayat and have a right to cast vote in the election of President of Zila Panchayat, Firozabad, the State is under constitutional duty for free and fair election. Nothing has been brought before us even by the aforesaid review application that either the petitioners are not members of Zila Panchayat, Firozabad or their memberships have been discontinued by a competent authority or that they have no right to vote. In the absence of these basic facts, there does not arise any question for review of the afore-quoted order dated 02.07.2021.
6. During course of hearing of review application, Sri Amrendra Nath Singh, learned senior advocate has stated that the petitioners have casted their votes today in the election of President, Zila Panchayat, Firozabad. We requested learned Additional Advocate Generals to verify the statement and to state as to whether the petitioners have casted their votes today? After seeking instructions, learned Additional Advocate Generals assisted by Sri Sudhanshu, learned Additional Chief Standing Counsel confirmed and stated before this court that the petitioners have casted their votes today in the election of President, Zila Panchayat, Firozabad. This statement of fact is recorded in our order dated 03.07.2021 by means of the order dated 02.07.2021, we have merely directed the respondents to ensure that the petitioners may cast their votes safely in the election of President, Zila Panchayat, Firozabad scheduled to be held on 03.07.2021. We have also made it clear that in the said order, we have not expressed any opinion with respect to the criminal cases, if any, either registered against the petitioners or in which they are wanted. Thus, after the petitioners casted their votes as admitted by learned Additional Advocate Generals appearing for the applicants/ State-respondents, no cause of action survived to press the review application, yet the learned Additional Advocate Generals pressed it and argued the matter.
Scope of Review:-
7. It is well settled that a party is not entitled to seek review of a judgment or order of this court merely for rehearing and a fresh decision. A review application for review of a judgment or order of this court under Article 226 of the Constitution of India, can be justified only when circumstances of a substantial and compelling character make it necessary to do so. Review may be justified if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. Review proceeding cannot be equated with the original hearing of the case. A judgment and order can be reviewed only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. An order can also be reviewed on the ground of discovery of new and important matter for evidence which even after exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time of hearing.
8. Principles for review of a judgment or order have been summarised by the Apex Court in Kamlesh Verma vs. Mayawati, (2013) 8 SCC 320 (paras 20, 20.1 and 20.2), as under:
"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki (1922) 16 LW 37 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev.Mar Poulose Athanasius, AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd., (2013) 8 SCC 337.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the facts of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
9. The power of review can be exercised for correction of a mistake but not to substitute a view. In the case of Sarla Mudgal vs. Union of India, (1995) 3 SCC 635, Hon’ble Supreme Court has laid down the law that mistake or error apparent on the face of record may require review. Error apparent on the face of the proceeding is an error which is based on clear ignorance or disregard of the provisions of law. In a review petition, it is not open to re- appreciate the evidence and to reach to a different conclusion even if that is possible. Conclusions arrived at by appreciation of facts cannot be assailed in a review petition unless there is an error apparent on the face of the record or for some reason akin, vide Kerala State Electricity Board vs. Hitech Electrothermics & Hydropower Ltd.and others, (2005) 6 SCC 651. The principles summarised in foregoing paragraphs have also been reiterated by Apex Court in M/S Jain Studios Limited vs Shin Satellite Public Co. Ltd, (2006) 5 SCC 501, Moran Mar Basselios Catholicos vs The Most Rev. Mar Poulose Athanasius AIR 1954 SC 526, T. C. Basappa vs T. Nagappa and Another, AIR 1954 SC 440, Hari Vishnu Kamath vs Syed Ahmad Ishaque and Others, AIR 1955 SC 233, Union of India vs. Sandur Manganese and Iron Ores Ltd. and others, (2013) 8 SCC 337, Kamlesh Verma vs. Mayawati, (2013) 8 SCC 320 and Akshay Kumar Singh vs. State (N.C.T. of Delhi) (2020) 3 SCC 431 (Para-11).
10. The submissions made by learned counsel for the applicants as afore-quoted would reveal that the applicants have merely stated that first information report has been registered against the petitioner just before the Election of President, Zila Panchayat, Firozabad. The petitioners have fully disclosed in the writ petition the criminal cases lodged against them. The State applicants have not disputed the allegations made in the paragraphs- 8, 9, 11 and 12 of the writ petition, which are reproduced below:
“8. That on this First Information Report which was lodged as Case Crime No.222 of 2021, the victim Pravesh Kumar also filed an affidavit before the Superintendent of Police Firozabad which was not considered and Investigating Officer recorded the statement of two persons and four petitioners made as an accused. For kind perusal of this Hon’ble Court, A Photo copy of the Affidavit filed by Victim Pravesh Kumari is being filed herewith and Marked as Annexure-No.4 to this writ petition.
9. That the Police on the basis of criminal case wants to arrest the petitioners and restrain to cost their votes an election of President of Zila Panchayat, which was going-on 3.7.2021.
11. That the Constitution of India also provides to petitioners as well as Citizen of India to cost their votes for his free will in Election, but the Ruling party in State (Bhartiya Janta Party) with collusion of local administration want to restrain the petitioners to cast their votes, hence Lordship kindly permit to petitioners to cast their votes an election of Zila Panchayat of President which is going on 3.7.2021, otherwise the petitioners shall suffer irreparable loss and injury, which was not compensated in any manner.
12. That in District Firozabad total members of Zila Panchayat are 33, the Six Members of Zila Panchayat (They are petitioners in the present writ petition) were falsely implicated in Criminal case due to they are not cost their votes in favour of ruling party candidate.”
11. Since the petitioners are elected members of Zila Panchayat and have not been disqualified to cast their votes in election of President of Zila Panchayat, Firozabad. Therefore, there was no apparent error either in the statement of the learned Additional Advocate General as noted in the order or in the direction of this court to allow the petitioner to cast their votes. The submissions of learned Additional Advocate General or the Review Application neither discloses any manifest error/ glaring omission/ patent mistake in the order dated 02.07.2021 nor discloses discovery of any new facts requiring review of the order. None of the circumstances requiring review of the order dated 02.07.2021, as paer settled principles; exists in the present set of facts.
12. From the facts as narrated above and the contents of review application, it may be safely observed that the present review application has been filed by the State-respondents merely to avoid the order dated 02.07.2021 so that somehow the petitioners who are lawfully elected members of Zila Panchayat, may not cast their votes for the election of President, Zila Panchayat, Firozabad. A review filed for such purpose is not maintainable and deserves rejection with exemplary cost.
13. For all the reasons afore-stated, we are of the view that the applicants/ State-respondents have filed a frivolous review application, which deserves to be dismissed with costs.
14. In view of the aforesaid, the review application is dismissed with costs.
Order Date :- 30.07.2021 NLY