Bombay High Court
Mohammad Yamin Naeem Mohammad And ... vs State Of Mah. Thr. Ps Incharge Ps ... on 22 July, 2022
Bench: S.B. Shukre, Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APPW) NO.15/2021
IN
CRIMINAL WRIT PETITION NO.543/2020 (D)
APPLICANTS : 1. Mohammad Yamin Naeem Mohammad,
(Original Aged - about 32 years, Occu. driver R/o
petitioners) Lalbara, Tq. Billari, Jimurabad, Sambhal,
Uttar Pradesh, India.
2. Mohammad Jamshed Sakir Mohammad,
Aged about 18 years, Occu. - cleaner
R/o Lalbara, Tq. Billari, Jimurabad,
Sambhal, Uttar Pradesh, India.
3. Mohammad Sarfaras Sharif Mohammad,
Aged - Major, Occu. - Business R/o Lalbara,
Tq. Billari, Jimurabad, Sambhal, Uttar Pradesh,
India.
4. Gulshan Kumar s/o Sohna Ram Aneja,
aged about 64 years proprietor of Gagan
Cargo, having its office at 140, Rajendra
Market, near Tis Hajari Court, Delhi, India.
...VERSUS...
NON-APPLICANTS : 1. The State of Maharashtra, through
(Original Police Station Incharge, Police Station
respondents) (Thane) Jaulka, Dist. Washim.
2. The Commissioner of Food Safety
Food and Drugs Administration,
Maharashtra State, Survey No.341,
Bandra Kurla Complex, Bandra (East),
Mumbai 400 051.
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2
3. The Food & Safety Administration,
through Assistant Commissioner and
Designated Officer (Food), Near
Akashwani, Civil Lines, Akola.
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S/Shri Rahul M. Bhangde and Ajay Somani, Advocates for applicants
Shri S.A. Ashirgade, APP for non-applicants/State
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CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Order reserved on : 10/06/2022
Order pronounced on : 22/07/2022
PER COURT :
1. The present application seeks a review of the judgment
dated 09/01/2021. The parameters of review have been spelt out by
the Hon'ble Apex Court in Smt. Meera Bhanja Vs. Nirmala Kumari
Choudhury (1995) 1 SCC 170 as under :
"8. It is well settled that the review proceedings are not
by way of an appeal and have to be strictly confined to the
scope and ambit of Order 47, Rule 1, CPC. In connection
with the limitation of the powers of the court under Order
47, Rule 1, while dealing with similar jurisdiction available
to the High Court while seeking to review the orders under
Article 226 of the Constitution of India, this Court, in the
case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma
[(1979) 4 SCC 389 : AIR 1979 SC 1047], speaking through
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Chinnappa Reddy, J., has made the following pertinent
observations: (SCC p. 390, para 3)
"It is true as observed by this Court in Shivdeo
Singh v. State of Punjab [AIR 1963 SC 1909],
there is nothing in Article 226 of the Constitution
to preclude the High Court from exercising the
power of review which inheres in every Court of
plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors
committed by it. But, there are definitive limits to
the exercise of the power of review. 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 the review or
could not be produced by him at the time when
the order was made; it may be exercised where
some mistake or error apparent on the face of the
record is found; it may also be exercised on any
analogous ground. But, it may not be exercised on
the ground that the decision was erroneous on
merits. That would be the province of a court of
appeal. A power of review is not to be confused
with appellate power which may enable an
appellate court to correct all manner of errors
committed by the subordinate court."
9. Now it is also to be kept in view that in the impugned
judgment, the Division Bench of the High Court has clearly
observed that they were entertaining the review petition
only on the ground of error apparent on the face of the
record and not on any other ground. So far as that aspect is
concerned, it has to be kept in view that an error apparent
on the face of record must be such an error which must
strike one on mere looking at the record and would not
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require any long-drawn process of reasoning on points
where there may conceivably be two opinions. We may
usefully refer to the observations of this Court in the case
of Satyanarayan Laxminarayan Hegde v. Mallikarjun
Bhavanappa Tirumale [AIR 1960 SC 137 : (1960) 1 SCR
890] wherein, K.C. Das Gupta, J., speaking for the Court
has made the following observations in connection with an
error apparent on the face of the record:
"An error which has to be established by a long-
drawn process of reasoning on points where there
may conceivably be two opinions can hardly be
said to be an error apparent on the face of the
record. Where an alleged error is far from self-
evident and if it can be established, it has to be
established, by lengthy and complicated
arguments, such an error cannot be cured by a
writ of certiorari according to the rule governing
the powers of the superior court to issue such a
writ."
In Haridas Das Vs. Usha Rani Banik (Smt) and others,
(2006) 4 SCC 78, considering Meera Bhanja (supra), it has been held
as under as under :
13. 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
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the face of the records or for any other sufficient reason". The
former part of the rule deals with a situation attributable to
the applicant, and the latter to a jural action which is
manifestly incorrect or on which two conclusions are not
possible. Neither of them postulate a rehearing of the dispute
because a party had not highlighted all the aspects of the
case or could perhaps have argued them more forcefully and/
or cited binding precedents to the court and thereby enjoyed
a favourable verdict. This is amply evident from the
Explanation to Rule 1 of Order 47 which states that the fact
that the decision on a question of law on which the judgment
of the court is based has been reversed or modified by the
subsequent decision of a superior court in any other case,
shall not be a ground for the review of such judgment. Where
the order in question is appealable the aggrieved party has
adequate and efficacious remedy and the court should
exercise the power to review its order with the greatest
circumspection. This Court in Thungabhadra Industries Ltd.
v. Govt. of A.P. [(1964) 5 SCR 174 : AIR 1964 SC 1372] held
as follows: (SCR p. 186)
"[T]here is a distinction which is real, though it might not
always be capable of exposition, between a mere erroneous
decision and a decision which could be characterised as
vitiated by 'error apparent'. A review is by no means an
appeal in disguise whereby an erroneous decision is reheard
and corrected, but lies only for patent error. ... where
without any elaborate argument one could point to the error
and say here is a substantial point of law which stares one in
the face, and there could reasonably be no two opinions
entertained about it, a clear case of error apparent on the
face of the record would be made out."
14. --------
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15. A perusal of Order 47 Rule 1 shows that review of a
judgment or an order could be sought: (a) from the
discovery of new and important matters or evidence which
after the exercise of due diligence was not within the
knowledge of the applicant; (b) such important matter or
evidence could not be produced by the applicant at the time
when the decree was passed or order made; and (c) on
account of some mistake or error apparent on the face of the
record or any other sufficient reason."
2. Thus, from the above, the following can be culled out:
(a) Review proceedings are not by way of an appeal
and have to be strictly confined to the scope and ambit
of Order 47, Rule 1 of the Code of Civil Procedure.
(b) The the power of review can be exercised :
(i) 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 the review or could not be
produced by him at the time when the order was
made;
(ii) where some mistake or error apparent on the
face of the record is found, which mistake or
error has to be self evident and must be such an
error which must strike one on mere looking at
the record. That is to say where without any
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elaborate argument one could point to the error
and say here is a substantial point of law which
stares one in the face, and there could
reasonably be no two opinions entertained about
it, An error which has to be established by a
long-drawn process of reasoning on points where
there may conceivably be two opinions can
hardly be said to be an error apparent on the
face of the record.
(iii) on any analogous ground.
But :
(c) it may not be exercised on the ground that the decision
was erroneous on merits as a review is not an appeal in
disguise whereby an erroneous decision is reheard and
corrected, but lies only for patent error. That would be the
province of a court of appeal. A power of review is not to be
confused with appellate power which may enable an
appellate court to correct all manner of errors committed by
the subordinate court.
(d) it does not postulate a rehearing of the dispute because a
party had not highlighted all the aspects of the case or could
perhaps have argued them more forcefully and/or cited
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binding precedents to the court and thereby enjoyed a
favourable verdict.
(e) The fact that the decision on a question of law on which
the judgment of the court is based has been reversed or
modified by the subsequent decision of a superior court in
any other case, shall not be a ground for the review of such
judgment.
(f) Where the order in question is appealable the aggrieved
party has adequate and efficacious remedy and the court
should exercise the power to review its order with the
greatest circumspection.
It would thus be apparent that unless a plea seeking
review falls within the above parameters, a review shall not lie.
3. The present application for review has to be considered
in light of the above parameters.
4. A bare perusal of the application seeking review would
make it apparent that what is being sought is not a review but a
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rehearing for the reason that grounds are raised stating how the
observations of this Court were incorrect, which cannot be grounds
for review but grounds for appeal. On this ground itself the
application needs to be rejected.
5. Further grounds are raised that some of the judgments/
orders, which have been annexed to the petition as annexures,
namely, M/s. M.S.S. Foods and Processor Vs. The Commissioner of
Food Safety and Drug Administration, Maharashtra State and others
(Criminal Writ Petition No.793/2019) decided on 04/09/2019 and
Nilesh S/o Narayan Sanghvai Vs. State of Maharashtra Through
Police Station Officer, MIDC Police Station, Akola Tq. And Distt.
Akola [Criminal Application (APL) No.442/2020] decided on
09/09/2020, were not relied upon, in spite of which, they have
been considered, which also cannot be a ground for review. A
ground is also raised that judgments in M/s. Omkar Agency, through
its Proprietor Vs. The Food Safety and Standards Authority of India
and another, 2016 SCC OnLine Pat 9231 and Anand Ramdhani
Chaurasia and another Vs. The State of Maharashtra, through Public
Prosecutor Office, Samta Nagar Police Station, Kandivali (East)
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Mumbai and others (Criminal Writ Petition No.3607/2019) decided
on 13/09/2019 were not referred to or relied during oral hearing.
M/s. Omkar Agency and Anand Ramdhani Chaurasia (supra) were
enclosed in the list of reliances subsequently placed on record on
21/11/2020. It is material to note that if a judgment/order is
annexed as an annexure to the petition, the logical conclusion,
would be that such enclosure as an annexure, is for the purpose of
placing reliance upon the same, otherwise there is no reason
whatsoever why the judgment/order should be an annexure. Even if
it is not addressed during the course of argument, the Court will be
justified to consider it in view of the fact that it has been made an
annexure to the petition or enclosed in the list of reliances,
otherwise it will become open for a contention that though the
judgment/order was annexed/relied upon, the same was not
considered. If the judgment/order was not to be considered, a pursis
to that effect could have been filed, which not being so done, the
grievance cannot be raised.
6. The contention that the route for transportation ought
not to have been considered as the same was not canvassed is
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incorrect as the learned Additional Public Prosecutor, had made
submissions regarding the transportation from alternative routes
(para 15/pg.189 of the reply).
7. Without going into the individual grounds, we find that
the grounds which are raised are not the grounds, which would fall
within the scope and ambit of review as is indicated from a perusal
of the same. In fact, they entail rehearing of the entire matter which
is not permissible in the review jurisdiction and therefore, cannot be
entertained. There is no merit in the review application and the
same accordingly rejected. No costs.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
Wadkar
Digitally signed bySHAILENDRA
SUKHADEORAO WADKAR
Signing Date:22.07.2022 17:19
