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2024 DIGILAW 234 (JK)

Rajinder Koul, S/o. Pandit Triloki Nath Koul v. Director, VOK (ACB) J&K (UT), Vigilance Headquarter Jammu

2024-05-08

M.A.CHOWDHARY

body2024
JUDGMENT : 1. Aggrieved of the judgment dated 23.02.2023, the review petitioners have filed this Petition asserting that this Court while passing the impugned judgment had not considered the judgment dated 10.02.2023 passed by this Court earlier in CRTP No. 3/2016 titled “Kamal Rometra Vs Dr. Ab Kabir” which was to be followed under the “Doctrine of Binding Principle” as the review petitioners have been discriminated. 2. It has been pleaded that the tentative list of Kashmiri Pandits who had become prey of target killings in Kashmir during 2022-23 is very long and the threats given by TRF to migrant Kashmiri Pandits and Bureaucrats cannot be ignored as the same can be collected from ADG/Security and CID J&K(UT) and without asking for this information, rejecting the review petition will again cause of miscarriage of justice and petitioners right to life will become causality; that the review petitioners have based the aforesaid assertions as an error apparent on the face of record which has allegedly caused manifest injustice to them. 3. Pursuance to notice, the respondents filed parawise reply/objections to the review petition asserting therein that the review petitioners have tried to project the bad image of the present security scenario of the province of Kashmir; that presently all over security situation is comparatively good as many national and international events have recently been organized in the Kashmir province, while many such events are underway; that moreover, in case petitioners feel any evident threat from any corner, that much have been agitated before the trial Court for further directions to the concerned quarters but same has not been done by the petitioners, so facts portrayed by accused/petitioners in this petition are baseless and on this count alone the petition on hands deserves rejection. It has been further pleaded that the accused/petitioners have preferred the instant review petition on the same grounds which have already been considered and adjudicated upon and ultimately disallowed/dismissed by this Court being devoid of any merit and alleged that filing of the instant review petition is only aimed to delay the process of law and to frustrate the dispensation of justice against the accused public servants who had caused huge loss to State Exchequer illegally under a well knit conspiracy hatched with accused beneficiary. It has been also pleaded that transfer of any other criminal case from one province to another province previously cannot be made general rule to other cases also because it will open up the pathway for rest of the similarly situated cases in UT of J&K in future and such situation will definitely effect the outcome of trials of such cases pending before the concerned trial Courts; that the order dated 23.02.2023 sought to be reviewed has been passed by this Court after considering all the relevant facts/aspects of the case on hand and are not in any way against the basic tenants of law and finally it was prayed that the petition be dismissed. 4. Mr. S K Bhat, learned counsel appearing for the petitioners, vehemently, argued that all the judgments/orders passed by the Co-ordinate Benches of this Court based on similar ground i.e. threat perception were not considered by this Court while passing the impugned judgment, as such, the same is discriminative, violative of law and apparent error on the face of it, which has caused miscarriage of justice. It is clear from the judgment impugned that neither the response was filed by the respondents in Court but only copy was given to the counsel for the petitioners, further the detailed report and scanned record of the case was also not ever called from the trial Court of Baramulla, it amounts to miscarriage of justice, therefore, petitioners seek review of the said judgment in the interests of justice and prayed that the petitioners be given another chance to seek justice and to rectify the impugned judgment as the Hon’ble Supreme Court as well as the High Courts have the inherent power under Article 137 and 145(e) to review their own judgments/orders after hearing both the sides in order to cure gross miscarriage of justice and it was finally prayed that the present Review Petition be allowed. In support of his arguments, learned counsel for the petitioners has relied upon the judgments “Board Of Control for Cricket, India & Anr vs Netaji Cricket Club & Ors”, reported as 2005(4) SCC 741 , wherein it has been observed that the concept of review is based on the Doctrine of “Actus Curiae neminemgravabit.” Review powers and connotation is further discussed by Hon’ble Supreme Court in “Lily Thomas, Etc.Etc. vs Union of India & Ors”, reported as (2000) SCC 247 and in “Post Graduate Institute of Medical Education & Research Chandigarh vs Faculty Association & Ors”, reported as 1998(4) SC 1, wherein it has been observed that “if any apparent wrong appreciation of law is there, review is to be allowed”. 5. Mrs. Monika Kohli, learned Sr. AAG, appearing for the respondents ex adverso, argued that the impugned judgment passed by this Court in CrTP No. 18/2022 after consideration of the matter on merits, does not call for any interference. She has further argued that the Court had passed the order sought to be reviewed after hearing both the parties by passing a detailed judgment and finding no merit in the petition, the same was dismissed, therefore, the petitioners now by raising merits of the case instead of pointing out any mistake or error apparent on the face of the record in the judgment sought to be reviewed, want the case to be reheard under disguise of review petition and prayed that the Review Petition be dismissed. 6. Heard learned counsel on both the sides, perused the record and considered the matter. 7. The review petitioners have pleaded and also argued by their counsel before this Court, that the petitioners one of whom is a Migrant Kashmiri Pandit, whereas the other is a retired bureaucrat and is practising Advocate at Jammu and all the petitioners are senior citizens and belong to minority communities. These contentions had already been raised in the transfer petition by and on behalf of the review petitioners and this Court vide judgment sought to be reviewed had elaborately discussed that no such threat perception as agitated by the petitioners had been evaluated by any security agency or even they had not complained to any authority seeking security. The review petition is almost reproduction of all the grounds taken in the transfer petition except the only ground that the law laid down by a Co-ordinate Bench of this Court in CRTP No. 03/2016 titled “Kamal Rohmetra Vs Dr. Ab Kabir” in judgment dated 10.02.2023 had not been considered by this Court which had a binding precedent. By that judgment, a Co-ordinate Bench of this Court had transferred a criminal complaint titled “Kamal Rohmetra Vs Dr. Ab Kabir” pending before the Court of Judicial Magistrate (Sub-Registrar) Srinagar to the Court of Judicial Magistrate (Sub-Registrar) Jammu. 8. Ab Kabir” in judgment dated 10.02.2023 had not been considered by this Court which had a binding precedent. By that judgment, a Co-ordinate Bench of this Court had transferred a criminal complaint titled “Kamal Rohmetra Vs Dr. Ab Kabir” pending before the Court of Judicial Magistrate (Sub-Registrar) Srinagar to the Court of Judicial Magistrate (Sub-Registrar) Jammu. 8. I have gone through the judgment referred by the learned counsel for the review petitioners with advantage. The Court had made observation in that judgment that the petitioner was a reputed journalist and owner of reputed news paper “Daily Excelsior” and due to his security concerns, he would not get fair trial/justice in Srinagar Court. The contention of learned counsel for the review petitioners is that this judgment passed by a Co-ordinate Bench has a binding precedent and should have been followed by this Court while passing the judgment sought to be reviewed and in non-consideration of the same it is a ground seeking review of the judgment. It is amply clear that the Co-ordinate Bench had not laid any law which can be generalised and applied to all the applications seeking transfer of cases, on the basis of threat perception on account of security. The case of Kamal Rohmetra cannot be used as a precedent as the transfer of his case was ordered on the observations made with regard to the security threat to the applicant only. Therefore, there is no binding precedent as argued by learned counsel for the review petitioners. 9. It is interesting to note that in the case of Kamal Rohmetra, Mr S K Bhat, learned counsel for the review petitioners had appeared for respondent in that case and had opposed the transfer of the case from Srinagar Court on the ground that the petitioner Kamal Rohmetra was having his office in Srinagar and on many occasions he used to visit his office at Srinagar and also that as per the mandate of Section 179 CrPC, the accused is required to be tried in the District, where act is done or where consequences ensued, as such, he opposed the transfer of the case of Kamal Rohmetra. The review petitioners have not even brought to the notice of this Court as to how they are facing threats with regard to security as it has been seen that many of the Kashmiri Pandits and the members of minority community have been roaming freely asserting their rights in different Courts and the review petitioners are also not otherwise pitted against any private adversary so as to entertain any threat lurking in their minds that some mis-chief may be done to them by some private individual. 10. The case against review petitioners is regarding resorting to corrupt practices while they were in government service and had committed offences punishable under Prevention of Corruption Act as they were alleged to have disbursed rent on exorbitant rates to the tune of Rs.43.00 lacs in favour of co-accused namely Ghulam Mohd Khan in respect of Industrial Units/Residential accommodation of Soura Group of Industries situated at Watergam Kupwara which remained under occupation of Security Forces from the year 1989 to 1996. 11. Since the plea raised with regard to threat of security to the review petitioners has not been substantiated even in the review petition by placing on record any document and the judgment sought to be placed reliance for following a binding precedent is also, in my humble opinion, not of binding nature on this Court as the cases for transfer of cases are based on individual facts and cannot be generalized for every case. It is respectfully observed that the judgments relied upon by the learned counsel for the review petitioners are distinguishable and cannot be applied to the facts of the case on hand for review of the judgment. 12. The Apex Court in a case titled “Lily Thomas, Etc.Etc. vs Union of India & Ors”, reported as (2000) 6 SCC 224 , after survey of the law laid down by the Apex Court on jurisdiction of review, held in Para 56 “it follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power.” 13. The scope of review is quite limited and review of a judgment can be done only in cases where there is an apparent error on the face of record. Such powers can be exercised within the limits of the statute dealing with the exercise of power.” 13. The scope of review is quite limited and review of a judgment can be done only in cases where there is an apparent error on the face of record. The Apex Court in a case “Haridas Das vs Usha Rani Bank & Ors”, reported as (2006) 4 SCC 78 , held “In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason.” 14. The Hon’ble Apex Court in case of “State of West Bengal & Ors vs Kamal Sengupta & Anr”, reported as (2008) 8 SCC 612 , in paragraphs 21 and 22 has held as under:- “21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.” 22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self- evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. If an error is not self- evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. 15. In a recent judgment, the Hon’ble Apex Court in a bunch of Review Petitions with lead case “Sanjay Kumar Agarwal vs State Tax Officer -I & Anr”, 2023 LiveLaw (SC) 939, while discussing the scope of review after making reference to its earlier decision, gave a gist of the power of review in Para 16, which is relevant and is reproduced for convenience as under: “16. The gist of the afore-stated decisions is that:- i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record. ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. iii) An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected.” v) A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.” vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.” 16. Having regard to the aforestated legal propositions by the Apex Court and reverting to the facts of the case on hand, this Court is of the view that the well-considered judgment sought to be reviewed, does not fall within the scope and ambit of Review. The Review Petitioners have failed to make out any mistake or error apparent on the face of record in the impugned judgment, and have failed to bring the case within the parameters laid down by Apex Court in various decisions for reviewing the impugned judgment. 17. For the foregoing reasons and the observations made hereinabove, I do not find any merit in this Review Petition, the same is thus consequently dismissed.