Brijesh Singh [In 4823(M/B)2021] vs Smt. Priya Tiwari @ Priya Singh & ...
2021 Latest Caselaw 7355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9
 
Case :- CRIMINAL MISC REVIEW APPLICATION DEFECTIVE No. - 75 of 2021
 
Applicant :- Brijesh Singh [In 4823(M/B)2021]
 
Opposite Party :- Smt. Priya Tiwari @ Priya Singh & Anr.
 
Counsel for Applicant :- Suresh Chandra Srivastava
 
Counsel for Opposite Party :- G.A.,Piyush Shrivastava
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Rajeev Singh,J.

(1) The Court has convened through Video Conferencing.

(2) As per the report of Stamp Reporter, the instant review application has been filed by the review applicant/respondent no.4 in the writ petition (Brijesh Singh) beyond five days.

(3) Heard Sri Suresh Chandra Srivastava, learned Counsel for the review applicant/respondent no.4 in the writ petition/complainant, Sri Arunendra, learned AGA for the State and Sri Mahindra Veer Vikram, learned Counsel appearing on behalf of the writ petitioners and perused the material brought on record.

(4) Sri Arunendra, learned AGA appearing on behalf of the State and Sri Mahindra Veer Vikram, learned Counsel appearing on behalf of the writ petitioners have no objection in case delay in filing the instant review application be condoned as the review applicant has statutory right to file the instant review application.

(5) Considering the aforesaid as well as the fact that cause shown in the affidavit filed in support of the application for condonation of delay in filing the instant review application is satisfactory, we allow the application for condonation of delay and condoned the delay in filing the instant review application.

(6) The instant review application has been filed by the complainant/respondent no.4 in the writ petition, namely, Brijesh Singh, seeking review of the judgment and order dated 19.02.2021 passed in Misc. Bench No. 4823 of 2021 :Smt. Priya Tiwari alias Priya Singh and another Vs. State of U.P. and others, wherein this Court, after hearing the learned Counsel for the parties and appreciating the facts that prosecutrix/petitioner no.1 admittedly as per the F.I.R. as well as High School Certificate annexed as Annexure No.2 to the writ petition, is a major girl aged about 20 years and placing reliance upon the law laid down by the Apex Court in Sachin Pawar Vs. State of U.P. (Criminal Appeal No. 1142 of 2013, decided on 02.08.2013), allowed the writ petition and quashed the F.I.R. and all subsequent proceedings in pursuance thereof, which are impugned in Writ Petition No. 4823 of 2021 (M/B).

(7) Submission of the learned Counsel for the review applicant is that review applicant is the father of the prosecutrix/petitioner no.1 (Priya Singh) and has lodged an F.I.R. on 02.02.2021, which was registered as Case Crime No. 0029 of 2021, under Section 366 I.P.C., Police Station Musafirkhana, District Amethi, against Nitish Tiwari, which was challenged by accused -Nitish Tiwari and his daughter/prosecutrix (Priya Singh) by filing writ petition No. 4823 (M/B) of 2021, wherein this Court allowed the writ petition and quashed the aforesaid F.I.R. as well as all subsequent proceedings taken against the writ petitioners in pursuance thereof vide order dated 19.02.2021. His submission is that during all the proceeding, daughter of applicant/victim was not produced in any Court and neither her statement under Section 164 Cr.P.C. was recorded. He submits that the review applicant being the father of the victim came to know that the victim is not residing voluntarily with the petitioner no.1, therefore, he has filed the instant review application for reviewing the judgment and order dated 19.02.2021 and prays that a direction be issued to record the statement under Section 164 of the victim prior to quashing the F.I.R.

(8) The learned Counsel for the writ petitioners have vehemently opposed the contention of the counsel for the review applicant and argued that the order under review has been passed after hearing the learned Counsel for the parties and the plea, which has been raised in the instant review application, has not been raised during the hearing of the writ petition by the Counsel for the complainant, therefore, the said plea at the review stage cannot be permitted to be raised to the learned Counsel for the review applicant. He also argued that the writ petition on behalf of the complainant/review applicant/respondent no.4 has been argued by Sri Abhinav Singh, Advocate holding brief of Sri Ramakar Shukla, Advocate but the instant review application has been filed by Sri Suresh Chandra Srivastava, Advocate.

(9) Elaborating his submission, learned Counsel for the writ petitioners have argued that order under review has been passed by this Court on the ground that the victim as per the F.I.R., which was impugned in the writ petition, as well as as per the High School Certificate annexed as Annexure no.2 to the writ petition, is a major as her date of birth mentioned in the High School Certificate is 13.07.2021. He argued that victim/petitioner no.2 is major and had married with the writ petitioner no.1 out of her own free will and consent and both are living together as husband and wife and since the respondent no.4/father of the victim/complainant/review applicant was not happy with the marriage, therefore, initiated the present prosecution which is bad in law, as has been held by the Hon'ble Supreme Court in the case of Sachin Pawar Vs. State of U.P. (in Criminal Appeal No. 1142 of 2013 decided on 2.8.2013). Thus, they argued that there is no error in the order under review and the instant review application is liable to be dismissed.

(10) In reply to the submission of the learned Counsel for the writ petitioners that the instant review application has been filed by the review applicant through different counsel, it has been argued by the learned Counsel for the review applicant that the instant review application has been filed by the review applicant after taking ''No Objection' from his Counsel, who argued the matter on his behalf in the writ petition, therefore, the plea of the learned Counsel for the writ petitioners in this regard is not sustainable.

(11) We have heard learned Counsel for the parties and gone through the record.

(12) Before adjudicating and deciding the matter in question, it is appropriate to go through the ambit and scope of the review on which a review petition can be made.

(13) Hon'ble the Supreme Court in Subhash Vs. State of Maharastra & Another, AIR 2002 SC 2537 has emphasized that the Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review.

(14) In Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, in a review petition filed under Order 47 Rule 1 CPC, Hon'ble the Supreme Court held that the power of review under Article 226 of the Constitution of India, in reviewing its own orders, every Court including High Court inheres plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Further, the review lies only on the grounds mentioned in Order 47, Rule 1 read with Section 141 CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other "sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in the said provision of C.P.C.

(15) Hon'ble Supreme Court in the case of Zahira Habibullah Sheikh Vs. State of Gujarat, (2004) 5 SCC 353, after placing reliance on its earlier judgments i.e. P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680; Sutherdraraja Vs. State, (1999) 9 SCC 323; Ramdeo Chauhan Vs. State of Assam, AIR 2001 SC 2231; and Devender Pal Singh Vs. State of NCT of Delhi, AIR 2003 SC 3365; observed that review applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well.

(16) Thus, in view of the aforesaid facts, review can be allowed only on (1) discovery of new and important matter of evidence which, after 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, or (2) when some mistake or error on the face of record is found, or (3) on any analogous ground. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court.

(17) In the instant case, though the Counsel for the applicant has made submission that prior to quashing the F.I.R. and subsequent proceedings initiated against the writ petitioners in pursuance thereof, the statement of prosecutrix under Section 161 Cr.P.C. ought to be recorded, to which learned Counsel for the writ petitioners has contended that at the time of hearing of the writ petition, the petitioner has not made any submission in this regard, therefore, at this stage, the same cannot be permitted to be raised in the instant review application. It has also been argued by the learned Counsel for the writ petitioners that the plea, which has been raised in the instant review application, has already been addressed by Hon'ble Supreme Court in Sachin Pawar Vs. State of U.P. (supra), therefore, the petitioner cannot be permitted to raise such a plea at this stage.

(18) It is settled law that once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued. Therefore, we are of the view that it is not possible to review a judgment only to give the petitioner a fresh inning. It is not for the litigant to judge of counsel's wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks it should be argued.

(19) Keeping in mind the aforesaid legal proposition of law and also perusing the records, we are of the view that no case for reviewing the judgment and order dated 19.02.2021 is made out as there is no apparent error on the face of record and the learned Counsel for the review applicant has failed to point out any error which warrants review of the judgment and order dated 19.02.2021.

(20) The review petition is, accordingly, dismissed.

Date :- 9.7.2021

Ajit/-