Andhra Pradesh High Court - Amravati
Y.Naga Rani, vs Govt. Of Andhra Pradesh, on 9 July, 2024
1
APHC010292412021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3329]
(Special Original Jurisdiction)
TUESDAY ,THE NINTH DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
IA 1 OF 2023
IN
WRIT PETITION NO: 21702/2021
Between:
Y.Naga Rani, ...PETITIONER
AND
Govt Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. C SRINIVASA BABA
Counsel for the Respondent(S):
1. GP FOR SERVICES I
The Court made the following:
1. I.A.No.1 of 2023 is filed seeking to review the order passed by this
Court in W.P.No.21702 of 2021 dated 08.05.2023.
2. This review petitioner is the petitioner and the respondents are the
respondents in the writ petition.
3. Learned counsel for the petitioner submits that, the Appellate Court
allowed the Crl.Appeal No.124 of 2008 dated 08.04.2008 and set-aside the
conviction by the Court in C.C.No.101 of 2007 on the file of the Judicial
Magistrate of First Class (Prohibition & Excise), Kurnool, which indicates that,
no conviction is pending against the petitioner. It is also submitted that, since
the Appellate Court remanded the matter to the Trial Court to frame an
appropriate charge against the petitioner. Aggrieved by the judgment in
Crl.Appeal No.124 of 2008 dated 08.04.2009, the petitioner preferred
Crl.R.C.No.1095 of 2009 before this Court, wherein this Court vide order in
Crl.M.P.No.1500 of 2009 dated 07.07.2009 granted stay of all further
proceedings in C.C.No.101 of 2007 on the file of Spl.JFCM, Kurnool.
Therefore, when the stay of this Court is operating, the proceedings before the
Trial Court will not be continued against the petitioner, as such, the petitioner
cannot be denied her right of promotion on the guise of pending criminal
cases/proceedings.
4. Learned counsel for the petitioner would submit that, since the
Appellate Court had set-aside the conviction vide judgment dated 08.04.2008,
no charge sheet is pending. She further submits that, this Court was pleased
to stay of all further proceedings meant that the order of remand for fresh trail
was stayed and hence, there is no conviction against the petitioner.
5. Learned counsel for the respondents supported the order of this Court
in W.P.No.21702 of 2021 dated 08.05.2023 in all respects and requested to
dismiss the interlocutory application.
6. Order XLVII in the Code of Civil Procedure, 1908 (CPC) together
with Section 114 of the Act, provides the procedure for Review.
Section 114 merely produces the conditions necessary for the filing the
application for Review to the „court‟ by which decree or order, sought to be
reviewed under the application, was passed or made. While Order XLVII along
with the same conditions as enumerated in the section, lays down grounds for
Review and other procedural rules governing the same.
7. For better appreciation of the present Review Application, this Court
feels it appropriate to extract Order XLVII Rule 1 of Code of Civil Procedure,
1908, which reads as follows:
"Order XLVII Rule 1 -
Application For Review of Judgment:
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed,
or
(c) by a decision on a reference from a Court of Small
Causes,
and who, from the discovery of new and important
matter or evidence which, after the exercise of due
diligence was not within his knowledge or could not be produced
by him at the time when the decree was passed or order made, or
on account of some mistake or error apparent on the face of the
record of for any other sufficient reason, desires to obtain a review
of the decree passed or order made against him, may apply for a
review of judgment to the Court which passed the decree or made
the order.
(2) A party who is not appealing from a decree or order may
apply for a review of judgment notwithstanding the pendency of an
appeal by some other party except where the ground of such
appeal is common to the applicant and the appellant, or when,
being respondent, he can present to the Appellate Court the case
on which he applies for the review.
8. However, even as per the Order XLVII Rule 1 of Code of Civil
Procedure, 1908, there is a very limited scope for review. A review can be
ordered only on account of some mistake or error apparent on the face of the
record. Even as per the judgment in the case of "Allahabad Electricity Co.
Ltd. Vs. State of Gujarat reported in AIR 2003 Guj. 157", a mere erroneous
decision per se does not permit the Court to undertake review.
9. The Hon‟ble Supreme Court in the case of "Rajendra Kumar Vs.
Rambhai reported in AIR 2003 SC 2095" held that the first and foremost
requirement of entertaining a review petition is that the order, review of which
is sought, suffers from any error apparent on the face of the order and
permitting the order to stand will lead to failure of justice. In the absence of
any such error, finality attached to the judgment/order cannot be disturbed.
10. The Hon‟ble Supreme Court in the case of "Lily Thomas Vs. Union of
India reported in 2000 (6) SC 224" observed and held that the power of
review can be exercised for correction of a mistake but not to substitute a
view. The Supreme Court also held in the case of "State of West Bengal and
Others Vs. Kamal Sengupta and another reported in 2008 (8) SCC 612"
which is as follows:
"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. 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."
11. In "State of Maharastra Vs Ramdas Shrinivas Nayak and Another
reported in (1982) 2 SCC 463", the Hon‟ble Apex Court has observed as
follows:
"When we drew the attention of the learned Attorney General to
the concession made before the High Court, Shri A.K. Sen, who
appeared for the State of Maharashtra before the High Court
and led the arguments for the respondents there and who
appeared for Shri Antulay before us intervened and protested
that he never made any such concession and invited us to
peruse the written submissions made by him in the High Court.
We are afraid that we cannot launch into an enquiry as to what
transpired in the High Court. It is simply not done. Public Policy
bars us. Judicial decorum restrains us. Matters of judicial record
are unquestionable. They are not open to doubt. Judges cannot
be dragged into the arena. "Judgments cannot be treated as
mere counters in the game of litigation". We are bound to
accept the statement of the Judges recorded in their judgment,
as to what transpired in court. We cannot allow the statement of
the judges to be contradicted by statements at the Bar or by
affidavit and other evidence. If the judges say in their judgment
that something was done, said or admitted before them, that
has to be the last word on the subject. The principle is well
settled that statements of fact as to what transpired at the
hearing, recorded in the judgment of the court, are conclusive
of the facts so stated and no one can contradict such
statements by affidavit or other evidence. If a party thinks that
the happenings in court have been wrongly recorded in a
judgment, it is incumbent upon the party, while the matter is still
fresh in the minds of the judges, to call attention of the very
judges who have made the record to the fact that the statement
made with regard to his conduct was a statement that had been
made in error. That is the only way to have the record
corrected. If no such step is taken, the matter must necessarily
end there. Of course a party may resile and an Appellate Court
may permit him in rare and appropriate cases to resile from a
concession on the ground that the concession was made on a
wrong appreciation of the law and had led to gross injustice;
but, he may not call in question the very fact of making the
concession as recorded in the judgment."
12. In "Smt.Krishna Pathak Vs. Vinod Shankar Tiwari and Others
reported in 2005 SCC Online ALL 1533" the Court has observed as follows:
"41. In view of the above discussion, the law of review can
be summarized that it lies only on the grounds mentioned in
Order 47 Rule 1 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 Order 47 Rule 1 CPC. Under the
garb of review, a party cannot be permitted to re-open the
case and to gain a full-fledged inning for making
submissions, nor review lies merely on the ground that it
may be possible for the Court to take a view contrary to what
had been taken earlier. Even the judgment given
subsequent to the decision in a case can be no ground for
entertaining the review. Review lies only when there is error
apparent on the face of the record and that fallibility is by the
over-sight of the Court. If a counsel has argued a case to his
satisfaction and he had not raised the particular point for any
reason whatsoever, it cannot be a ground of review for the
reason that he was the master of his case and might not
have considered it proper to press the same or could have
thought that arguing that point would not serve any purpose.
If a case has been decided after full consideration of
arguments made by a counsel, he cannot be permitted,
even under the garb of doing justice or substantial justice, to
engage the court again to decide the controversy already
decided. If a party is aggrieved of a judgment, it must
approach the Higher Court but entertaining a review to re-
consider the case would amount to exceeding its jurisdiction,
conferred under the limited jurisdiction for the purpose of
review. Justice, as explained above, connotes different
meaning to different persons in different contexts, therefore,
courts cannot be persuaded to entertain a review application
to do justice unless it lies only on the grounds mentioned in
the statutory provisions."
13. In "Smt. Krishna Pathak Vs. Vinod Shankar Tiwari and Others
reported in 2005 SCC Online ALL 1533", the Court held that, under the garb
of review, a party cannot be permitted to re-open the case and to gain a full-
fledged inning for making submissions, nor review lies merely on the ground
that it may be possible for the Court to take a view contrary to what had been
taken earlier.
14. Discovery of any new fact or evidence necessarily has to be an
important or relevant factor to the extent that had it been brought on record at
the time when the order was passed, it would have an impact and might have
altered the decision. Moreover, absence of such important fact or evidence on
record at the time of decision, must not be the result of negligent attitude of
the concerned person and therefore such person applying for review is
required by law to strictly prove that such fact or evidence was not within his
knowledge or could not be adduced, even after exercising due diligence and
unless such proof is produced, review application shall not be entertained.
15. On perusal of the grounds putforth by the learned counsel for the
petitioner and the order of this Court, this Court dismissed the writ petition in
clear and categorical terms. It is settled proposition of law that, stay of all
further proceedings against any proceedings of the Court below would mean
that, whatever charges or charge sheet which was already filed is still pending
for further consideration or trial, in view of operation of stay proceedings by
this Court. Once, the operation of stay is vacated, the Court below is
empowered to continue the enquiry or trial pursuant to the charge sheet.
16. On perusal of the grounds sought for review, it appears that the
petitioner is under presumption and assumption that, since the Appellate
Court has set-aside the conviction and remanded the matter for framing new
charge/for conducting fresh trail, no charge sheet is pending against the
petitioner before the Trail Court, which is nothing but misunderstanding and
misconception of law.
17. The other ground raised by the petitioner is that, after setting-aside the
conviction as well as remand of the matter by the Appellate Court in
Crl.A.No.124 of 2008 dated 08.04.2008, the petitioner challenged the order by
way of criminal revision case before this Court vide Crl.R.C.No.105 of 2009
and this Court vide order dated 07.07.200 in Crl.R.C.MP No.1500 of 2009
granted stay of all further proceedings in C.C.No.101 of 2007 on the file of the
Judicial First Class Magistrate (Prohibition & Excise), Kurnool, in pursuance of
the judgment dated 08.04.200 in Crl.A.No.124 of 2008 on the file of the
Principal Sessions Judge, Kurnool, only to the extent of remand, but not
against the order of setting-aside the conviction in favour of the petitioner is
also contrary to the order of the Appellate Court. The intention of the Appellate
Court is that the Trial Court has erred in framing charges and directed to
frame appropriate charge(s) for further continuation of criminal
proceedings/trial, pursuant to the new charge framed, as directed. Therefore,
the presumption and understanding of the learned counsel for the petitioner is
contrary to the settled proposition of law.
18. On one hand, vide order dated 07.07.200 in Crl.R.C.MP No.1500 of
2009 in Crl.R.C.No.105 of 2009, the petitioner obtained interim order from this
Court i.e stay of all further proceedings in C.C.No.101 of 2007 on the file of
the Judicial First Class Magistrate (Prohibition & Excise), Kurnool and on the
other hand, she cannot plead that, in view of the stay of all further proceedings
in C.C.No.101 of 2007, the charge sheet and criminal case(s) are not pending
against the petitioner is nothing but misunderstanding and misconception of
law. Therefore, there are no grounds to interfere/review the order passed by
this Court in W.P.No.21702 of 2021 dated 08.05.2023 and I.A.No.1 of 2023 is
liable to be dismissed.
19. Obtaining an interim obtained interim order from this Court vide order
dated 07.07.200 in Crl.R.C.MP No.1500 of 2009 in Crl.R.C.No.105 of 2009
from this Court is only staying of all further proceedings in C.C.No.101 of 2007
on the file of the Judicial First Class Magistrate (Prohibition & Excise),
Kurnool, pursuant to the judgment dated 08.04.2009 in Crl.A.No.124 of 2008.
It cannot be said that, no conviction or charges or pending against the
petitioner unless the criminal proceedings in C.C.No.101 of 2007 are either
quashed or suspended.
20. The uniform principle laid down by the Hon‟ble Supreme Court in
C.O. Armurugan vs. State of Tamil Nadu1 is that, the promotion of persons
against whom charge has been framed in the disciplinary proceedings or
charge sheet has been filed in criminal case may be deferred till the
proceedings are concluded. The Hon‟ble Apex Court clearly held that, they
must however be considered for promotion if they are exonerated or acquitted
from the charges.
21. In the present case, the petitioner is not exonerated or acquitted from
the charges by the Trial Court. The Appellate Court only remanded the matter
to the Trial Court for framing appropriate charge(s). In this backdrop, it cannot
be held that, the petitioner is exonerated or acquitted from the charges and
that no charges are pending against her.
1990 (1) SLRP 298
22. Further, vide G.O.Ms.No.66 General Administration (Services-C)
Department dated 30.01.1991, the State Government had taken a decision
that, promotion shall be deferred in respect of officers who are facing
disciplinary proceedings or a criminal case or whose conduct is under
investigation or a charge sheet has been filed against him/her in criminal
court.
23. In view of the judgment of the Hon‟ble Apex Court in C.O. Armurugan
vs. State of Tamil Nadu (referred supra) and G.O.Ms.No.66 dated
30.01.1991, the charge-sheet is still pending against the petitioner. As long as
charges and charge sheet are pending against the petitioner, till they attain
finality, the petitioner is not entitled to claim any further promotion, since, it is
deemed that the petitioner is not exonerated or acquitted from the charges.
24. In view of my foregoing discussion, I.A.No.1 of 2023 is liable to be
dismissed with costs.
25. In the result, I.A.No.1 of 2023 is dismissed with costs of Rs.5,000/-
(Rupees Five Thousands Only), payable to the High Court Legal Services
Committee within a period of two weeks from today.
_____________________________________
JUSTICE VENKATESWARLU NIMMAGADDA
Date:09.07.2024
SP
THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
IA 1 OF 2023
IN
WRIT PETITION NO: 21702/2021
Date:09.07.2024
SP
