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2022 DIGILAW 1270 (ALL)

Siddh Nath Pandey v. State of U. P.

2022-08-10

RAJ BEER SINGH

body2022
JUDGMENT : 1. This review application has been filed for review of the judgment and order dated 20.01.2021, passed by this Court in petition under Article 227 of Constitution of India, No.4737 of 2020 (Siddh Nath Pandey vs. State of U.P. and another). 2. Heard learned counsel for the petitioner/applicant, learned counsel for the complainant, learned AGA for the State and perused the record. 3. Perusal of record shows that the above referred petition under Article 227 of the Constitution of India was filed by the petitioner for quashing of the judgment and order dated 12.07.2018, passed by learned Additional Chief Judicial Magistrate, Vth Jaunpur in Complaint Case No.1097 of 2018 (Sanju Vs. Siddha Nath Pandey), as well as to quash the order dated 28.09.2020, passed by learned Special Judge POCSO Act I/Additional Session Judge, Jaunpur in Criminal Revision No.206 of 2018 (Siddha Nath Pandey Vs. State of U.P.). After hearing learned counsel for parties, the said petition under Article 227 was dismissed by the judgment and order dated 20.01.2021, which is quoted as under; ‘‘The present petition under Article 227 of the Constitution of India has been filed for setting aside the Judgement and order dated 12.07.2018 passed by learned Additional Chief Judicial Magistrate, V Jaunpur, in Complaint Case No. 1097 of 2018 (Sanju Vs. Siddha Nath Pandey) and order dated 28.09.2020 passed by learned Special Judge POCSO Act I/Additional Session Judge, Jaunpur in Criminal Revision No. 206 of 2018 (Siddha Nath Pandey Vs. State of U.P.) Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the material on record. It has been argued by learned counsel for the petitioner that the respondent no.2 filed a complaint against the petitioner making false and baseless allegations. It was submitted that respondent no.2 is not an aggrieved party and the allegations that sale deed was got executed by impersonation in place of dead person is false and baseless. The dispute is civil in nature and that the respondent no.2 is neither vendor nor vendee and that he has no locus to file the impugned complaint. It was further argued that pursuant to the order dated 06.03.2017 passed by this Court, the petitioner moved a discharge application, which has been rejected by the Court below vide impugned order dated 12.07.2018 without considering the entire facts and law. It was further argued that pursuant to the order dated 06.03.2017 passed by this Court, the petitioner moved a discharge application, which has been rejected by the Court below vide impugned order dated 12.07.2018 without considering the entire facts and law. It was further argued that against the said order, revision was filed, which was also dismissed vide impugned order dated 28.09.2020 in a routine manner without considering the facts in correct perspective. Learned counsel has further submitted that both the impugned orders are against the facts and law and thus is liable to be set aside. In support of his contention, learned counsel has relied upon a decision of Hon'ble Apex Court reported in 2009 (3)CCSC 1319 (SC) Dalveer Bhandari and Harji Singh Bedi Vs. State by Public Prosecutor Madras. On the other hand, learned A.G.A. for the State has opposed the petition and argued that there is no illegality or perversity in the impugned orders. The instant petition has been preferred under Article 227 of the Constitution of India. It is well settled that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. Vs. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896 ; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576 ; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300 ; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749 ; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47 ). In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675 , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. It is also well settled that at the stage of charge, only it is only to be seen whether prima facie case is made out or not and the matter cannot be examined meticulously and that mini trial cannot be held at this stage. In the instant case, perusal of record shows that the allegation against the petitioner is that sale deed was got executed by impersonation, whereas the said seller Banwari Lal, has already died. The trial Court has considered entire relevant facts and application for discharge was rejected by impugned order dated 12.07.2018, which is a reasoned order. The revisional Court has also considered entire facts in detail and dismissed the revision by a reasoned order. The trial Court has considered entire relevant facts and application for discharge was rejected by impugned order dated 12.07.2018, which is a reasoned order. The revisional Court has also considered entire facts in detail and dismissed the revision by a reasoned order. Considering entire facts there does not appear any patent illegality, perversity or error of jurisdiction in the impugned orders. The case law cited by learned counsel for the petitioner does not help the petitioner in view of attending fact of the matter. In view of aforesaid, no case for interference in impunged orders by invoking jurisdiction under Article 227 of the Constitution is made out. The petition under Article 227 of the Constitution of India, lacks merit and accordingly, dismissed.’’ 4. Learned counsel for the applicant-petitioner has argued that while deciding the above stated petition under Article 227 of the Constitution of India, this Court did not consider the following facts; (i) That complainant is neither related to the disputed property nor he was having any interest in the sale-deed. (ii) Neither the vendor nor the purchaser of the property has any grievance and thus, complainant cannot raise any grievance in respect of this property. (iii) The dispute involved in the matter is totally civil in nature and if complainant has any grievance, he can file a civil suit before the Civil Court. (iv) That the complainant has not made any complaint against the owner of property, who has executed the sale-deed in favour of petitioner and that the complainant has filed the complaint with ulterior motive to harass the petitioner. (v) That on date of execution of sale-deed, Sri Banwari was alive and the complainant has no concern in any manner with said Banwari and other share-holders of the property. (vi) That neither the purchaser of the property nor complainant has filed any suit for cancellation of the sale-deed and that the said sale-deed has not been cancelled by any court of law and in view of these circumstances, no offence is made out against petitioner. (vii) That the court of ACJM, Court No.16 Jaunpur failed to consider the aforesaid submissions and failed to exercise the power provided under Section 245 CrPC and illegally rejected the discharge application. (viii) That no offence is made out against petitioner and that the entire allegations levelled against him are baseless. (vii) That the court of ACJM, Court No.16 Jaunpur failed to consider the aforesaid submissions and failed to exercise the power provided under Section 245 CrPC and illegally rejected the discharge application. (viii) That no offence is made out against petitioner and that the entire allegations levelled against him are baseless. (ix) That the lower Revisional Court also did not consider the submissions of petitioner made in discharge application without considering the fact that allegations levelled against petitioner are totally baseless and there was no evidence to substantiate the allegations, the revision was illegally rejected. (x) That the Revisional Court failed to consider the grounds taken by petitioner and illegally rejected the revision. (xi) That the lower Revisional Court failed to exercise the power vested in it. (xii) That the courts below without considering material available on record illegally rejected discharge application and revision of petitioner. (xiii) That this Court failed to exercise its power provided under Article 227 of the Constitution of India. (xiv) That the case of petitioner is fully covered by the judgment of Hon’ble Supreme Court reported in 2009 (3)CCSC 1312 given in case of Mohd. Ibrahim and others vs. State of Bihar and another (Misc. Petition No.4737 of 2020). (xv) That in Criminal Revision (Defective) No.596 of 2016 (Ravindra Pratap Vs. State of U.P. and others), in similar matter, this court has taken a view that since the alleged sale-deed has not been cancelled by any Court of competent jurisdiction and in that situation no occasion arises to summon the accused person any for of the offences. (xvi) That in similar matter in Application under Section 482 No.17207 of 2006 (Smt. Achla Dhawan and others Vs. State of U.P. and another), this court held that matter is of civil nature and so long as the civil dispute is decided by Civil Court, the criminal proceeding will be abuse of process of law. 5. Learned counsel argued that in view of above stated facts and submissions, the judgment and order dated 20.10.2021 passed by this Court is erroneous and not supported by material available on record and thus, the said order be recalled and the petition filed by petitioner under Article 227 of Constitution of India be allowed. 6. 5. Learned counsel argued that in view of above stated facts and submissions, the judgment and order dated 20.10.2021 passed by this Court is erroneous and not supported by material available on record and thus, the said order be recalled and the petition filed by petitioner under Article 227 of Constitution of India be allowed. 6. Learned AGA and learned counsel for private respondent submitted that the order dated 20.01.2021 has been passed after considering the entire relevant facts of the matter and position of law and that there is absolutely no ground to review the judgment and order. The jurisdiction under Article 227 of the Constitution of India to appreciate the factual position is quite limited. Similarly in review application only some clerical error or some patent factual error may be corrected and in the present matter, no such case is made out. 7. I have considered rival submissions and perused the record. 8. In case of Case M/S Promotional Club Thru Sh. Keshav Verma Vs Chief Executive Officer NOIDA (Writ C. No. 56046 of 2013), decided on 13.04.2021, the Division Bench of this Court, after considering several pronouncements of Hon’ble Apex Court, held as under: ‘‘34. On reading of aforesaid judgements and principles enunciated by the Apex Court about the power of review of High Court, it can safely be culled out that though there is nothing in Article 226 of Constitution of India which precludes the High Court from exercising the power of review since every Court of plenary jurisdiction inheres the power to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But Apex Court held that there are definitive limits to the exercise of the power of review which are as follows:- (i). The power of review may be exercised on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the person seeking review or could not be produced by him at the time when the order was made; (ii). It may be exercised where some mistake or error apparent on the face of the record is found; (iii). It may also be exercised on an analogous ground. 35. It may be exercised where some mistake or error apparent on the face of the record is found; (iii). It may also be exercised on an analogous ground. 35. While limiting the power of review by the High Court, the Apex Court in the aforesaid judgements have also held that the power of review may not be exercised on the ground that the decision was erroneous on merit. A power of review is not to be confused with the appellate power since the power to correct all manner of errors committed by the subordinate court lies with the Appeal Court. The Apex Court while explaining as to when an error committed by the court would entitle the parties to seek the review of the judgment explicated that error must be one which should occur at the first site and not an error that can be found by adopting the process of reasoning or which has to be fished out and searched. 36. It is also settled in law that while exercising the power of review, Court is not acting as an appellate court and cannot rehear the matter’’. 9. Keeping the aforesaid position of law in view, in the instant matter it may be seen that the impugned order dated 20.01.2021 was passed in petition, filed under article 227 of the Constitution. It is well settled that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow and even the errors of law cannot be corrected in exercise of such powers. The power enshrined under Article 227 of the Constitution is of judicial superintendence and it cannot be used to upset conclusions of fact, however, erroneous, unless such conclusions are so perverse or unreasonable that no court could have ever reached them. The impugned order dated 20.01.2021 was passed by this court after considering all the relevant facts of the matter, within the jurisdiction provided under article 227 of Constitution. In the instant review application, most of the points raised by the learned counsel for the applicant/ petitioner require adjudication on questions of fact, which can hardly be permissible under article 227 of the Constitution. If these contentions are beyond the purview of article 227 of the Constitution, how the same can be examined in this review petition, is a question to ponder over. If these contentions are beyond the purview of article 227 of the Constitution, how the same can be examined in this review petition, is a question to ponder over. None of the judgment cited by the learned counsel relates about the jurisdiction of this Court under article 227 of the Constitution or about the scope of review. In fact the case laws cited by learned counsel for petitioner pertain to matters decided in criminal revision or petition under section 482 CrPC, where as the jurisdiction and power of this court under article 227 of the Constitution is on different footing and scope of interference is very limited. It is merely a supervisory power over the subordinate courts. Besides that, the said judgments have been made in their own facts and circumstances. In the instant review petition, it is apparent from the review application that matter is being put in a manner like it is an appeal against the order dated 20.01.2021, which is not permissible under law, there is nothing to show there is some discovery of new and important fact or evidence which after the exercise of due diligence was not within the knowledge of the person seeking review or could not be produced by him at the time when the order was made. Similarly there is nothing to show that there was some mistake or error apparent on the face of the record. For the sake of argument, even if the said order dated 20.01.2021 is erroneous on merits, as contended by the learned counsel for the petitioner, it can not be a ground for review of the impugned order. As observed by the Hon’ble Division Bench that the power of review may not be exercised on the ground that the decision was erroneous on merit. The power of review is not to be confused with the appellate power since the power to correct all manner of errors committed by the subordinate court lies with the Appeal Court. For review the error must be one which should occur at the first sight and not an error that can be found by adopting the process of reasoning or which has to be fished out and searched. 10. After considering submissions of learned counsel for the parties and all attending facts and circumstances of the matter, no case for review of order dated 20.01.2021 is made out. 10. After considering submissions of learned counsel for the parties and all attending facts and circumstances of the matter, no case for review of order dated 20.01.2021 is made out. The review application is hereby dismissed.