Vijaykumar Bhalabhai Parmar vs State Of Gujarat
2023 Latest Caselaw 891 Guj

     R/CR.MA/12499/2017                                       ORDER DATED: 06/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 12499 of 2017

==========================================================
                          VIJAYKUMAR BHALABHAI PARMAR
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR JIGAR D DAVE(6528) for the Applicant(s) No. 1
NISHITH K JOSHI(9193) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 06/02/2023

                                   ORAL ORDER

1. By way of the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the applicant has prayed for quashing and setting aside the FIR bearing CR-I No. 43 of 2017 registered with 'B' Division Police Station, District : Panchmahal dated 06.05.2017 for the offences punishable under Sections 406 and 420 of the Indian Penal Code.

2. Mr. Jigar Dave, learned advocate for the applicant submits that applicant's father was serving as Armed Constable in SRP Group No.5 and was posted at Godhra and he died while in service on 31.08.2000. Thereafter, the present applicant had applied for compassionate appointment on 21.09.2000. The application of the applicant was rejected by the authority concerned. Against the rejection of the said

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

application for compassionate ground, the applicant approached this Court by way of filing writ petition being Special Civil Application No. 10262 of 2013 and the same came to be disposed of on 28.02.20214, directing the authority concerned to consider the case of the applicant on compassionate ground. He also states that despite the said order, the authority concerned failed to comply the said order. The applicant was constrained to file contempt petition being Misc. Civil Application (for contempt) No. 1877 of 2014 in Special Civil Application No. 10262 of 2013, however, pending the proceedings of the said contempt petition, the authority concerned had given appointment to the applicant on compassionate ground as Class-III employee and in pursuance thereof, the applicant had resumed the duty and the contempt petition came to be disposed of by the order dated 22.12.2014.

2.2 Learned advocate for the applicant further submits that after joining the duty, the applicant has discharged his duty with honesty and sincerity and there was no complaint with regard to his work. However, to utter shock and surprise of the applicant, the impugned FIR came to be lodged against him. It is submitted that the impugned FIR is abuse of process of this Court, which does not disclose any commission of offence and appears to be mala-fide with an ulterior motive. Learned advocate for the applicant submits that there is inordinate and unexplained delay caused in filing the FIR, the alleged incident had taken place at about 21.09.2000 for which the impugned FIR has been lodged on 06.05.2017.

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

2.3 It is submitted that while in the interim proceedings in the Court by way of Special Civil Application No. 10262 of 2013 as well as in contempt petition being Misc. Civil Application No. 1877 of 2014, this Court has never found any criminality in the application dated 21.09.2000 for grant of compassionate appointment, thus there can not be an FIR, in relation to the same contending cheating and breach of trust.

2.4 Referring to the observation in Para-6 of the order dated 28.02.2014 recorded in Special Civil Application No. 10262 of 2013, in Para-5, 16 & 17 of the oral judgment dated 16.10.20214 passed in Misc. Civil Application (for review) No. 2768 of 2014 in Special Civil Application No. 10262 of 2013 and in Para- 2 & 3 of the order dated 22.12.2014 passed in Misc. Civil Application (For Contempt) No. 1877 of 2014 in Special Civil Application No. 10262 of 2013, learned advocate for the applicant submitted that the application dated 21.09.2000 was already considered by this Court and on that basis the order was passed for compassionate appointment.

3. Countering the arguments, Mr. Dhawan Jayswal, learned Additional Public Prosecutor has submitted that the applicant had given misinformation in his application dated 21.09.2000 of having already passed in standard 12 th, while verifying it was found that such informations were not true and subsequently he passed standard 12 th in the month of April- May, 2001. He also submitted that the false information was deliberately given by the applicant for getting the compassionate appointment.

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

4. This Court has observed in Para-6 of the order dated 28.02.2014 recorded in Special Civil Application No. 10262 of 2013, in Para-5, 16 & 17 of the oral judgment dated 16.10.20214 passed in Misc. Civil Application (for review) No. 2768 of 2014 in Special Civil Application No. 10262 of 2013 and in Para- 2 & 3 of the order dated 22.12.2014 passed in Misc. Civil Application (For Contempt) No. 1877 of 2014 in Special Civil Application No. 10262 of 2013, which reads as under :-

" 6. Hence, the following order :

Respondent No.2 shall consider and decide the application of the petitioner dated 21.09.2000 for grant of compassionate appointment, keeping in view the aspect mentioned in the communication dated 27.09.2010 issued by respondent No.4 that the application of the petitioner was received in the Department, but was not entered in the relevant Register, as it was mixed up with the pension papers of the deceased- father of the petitioner. The decision shall be taken, in accordance with law, and within a period of twelve weeks from the date of the receipt of a copy of this order."

para Nos. 5, 16 & 17 passed in MCA (for review) No. 2768 of 2014 dated 16.10.2014

"5. Mr.D.M. Devnani, learned Assistant Government Pleader, submits that when the representation of the petitioner was being considered, applicant No.2 found that the application dated 21.09.2000 made by the respondent (original petitioner), could not have been made because in the said application, the respondent has stated that he has passed the XIIth standard, but the marksheet appears to have been issued in the year 2001.

5.1 It is next submitted that the respondent made a statement on

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

22.03.2002, wherein it is stated that he was pursuing his education, therefore, there was a delay in making application for compassionate appointment.

5.2 It is further submitted by the learned Assistant Government Pleader that the nature of the clarification sought by the applicants is to the effect that it would be open for them to consider whether the respondent could have made an application for compassionate appointment in the year 2000, at all.

5.3 Yet another clarification sought is whether the applicants could have rejected the application of the respondent, or not.

5.4 It is next contended that a clarification is required to be made that after the initial rejection of the application of the respondent in the year 2010, before filing of the petition in which the order of this Court came to be passed, whether the application of the petitioner dated 21.09.2000 was a genuine one, or not.

5.5 On the above grounds, it is submitted that the order of this Court dated 28.02.2014 may be reviewed/ clarified, accordingly.

16. It is clear that by way of the present application, the applicants are trying to put words into the mouth of the Court, in order to justify some aspect of the matter that may have occurred to them after the petition was disposed of. The Court refuses to be drawn into such type of a snare. The submissions advanced by the learned Assistant Government Pleader, which are based upon the averments made in the application, are a result of hindsight, gained after the passing of the order dated 28.02.2014. Hence, this Court, having not decided the petition on merits, can have nothing further to say regarding such submissions, except that they deserve outright rejection.

17. There remains the issue regarding the clarification of the order dated 28.02.2014. Though it is not specifically mentioned in the application which part of the order is required to be clarified, however, during the course of hearing learned Assistant Government Pleader has stated that paragraph-6 of the order may be clarified. The said paragraph has already been reproduced hereinabove."

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

Para- 2 & 3 of MCA (for contempt) no. 1877 of 2014 dated 22.12.2014

"2. In response to the notice issued by this Court, Shri Dhawan Jayswal, learned Assistant Government Pleader has appeared on behalf of the opponents and affidavit-in-reply is filed by the concerned opponent tendering unconditional apology and explained the delay in passing the order on the application submitted by the applicant - original petitioner to appoint him on compassionate ground. It is reported that by order dated 15.10.2014, which has been further modified by order dated 28.11.2014, the applicant has been appointed on Class- III post on the compassionate ground and even the applicant has also resumed the duty on the date on which he has been appointed. Therefore, Shri Jayswal, learned Assistant Government Pleader appearing on behalf of the opponents has requested to accept the unconditional apology more particularly, when the concerned opponents have purged the contempt.

3. Having heard the learned advocates for the respective parties and in the facts and circumstances of the case, more particularly, when now the contempt has been purged and the applicant has been given appointment on compassionate ground on Class-III post and even the applicant has also resumed the duty, we accept the unconditional apology on behalf of the opponents and close the present proceedings. Consequently, the present application is disposed of."

5. In the referred matters, the authority was ordered for giving compassionate appointment to the petitioner on the application dated 21.09.2000 and the submission was also made in the review petition being Misc. Civil Application (for review) No. 2768 of 2014 of the misrepresentation of the applicant having passed standard 12th while the mark sheet appears to be issued in the year 2001. As submitted before the Court during the hearing of the review application, the nature of clarification sought was to the effect that it would be open

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

for them to consider whether the applicant could have made an application for compassionate appointment in the year 2000 and the clarification was also sought for considering whether the authority could have rejected the application and clarification was also sought for, to the effect that, after initial rejection of the application of the present applicant in the year 2010, whether the application of the applicant dated 21.09.2000 was genuine one or not, and on those grounds, the order dated 28.02.2014 was passed in Special Civil Application No. 10262 of 2013 ordering the authority to consider and decide the application of the applicant dated 21.09.2000 for grant of compassionate appointment keeping in view the aspect mentioned in communication dated 27.09.2010 as received by the department, but was not entered in the relevant register as it was mixed up with pension papers of the deceased father of the applicant and the Court had directed to take decision in accordance with law within a period of 12 weeks from the date of receipt of the copy of the order.

6. The review petition filed by the State was on the various grounds raised. In Para Nos. 8 to 21 of Misc. Civil Application (for review) No. 2768 of 2014, it was observed as under :-

"8. The first prayer made by the applicants is for the review of the order dated 28.02.2014. It is a settled position of law, reiterated by this Court and the Supreme Court in a catena of judgments, that unless and until the order does not suffer from any error apparent on the face of the record or some other ground as mentioned in Order 47 Rule 1 of the Code of Civil Procedure, 1908, the exercise of review jurisdiction is not called for.

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

9. Upon perusal of the application, it is seen that in the entire memorandum of the application, there is not a single word regarding there being any error apparent on the face of the order sought to be reviewed. No other ground for review of the order is either stated in the application or argued before the Court, therefore, no grounds for review of the said order are made out by the applicants.

10. A perusal of the said order further reveals that no mistake or error has been committed by the Court, while passing the said order. While making submissions, learned Assistant Government Pleader has not raised any submission regarding there being an error apparent on the face of the order. Hence, in the view of this Court, as the order dated 28.02.2014 does not suffer from any error apparent on the face of it, the prayer for review of the said order cannot be granted.

11. As rightly submitted by the learned advocate for the respondent (original petitioner), review jurisdiction does not permit that the matter be reopened, re-argued and heard on merits, as though in appeal. This aspect has been clearly stated by the Supreme Court in Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury reported in 1995 SC 455. The relevant extract of the judgment is reproduced hereinbelow:

"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, C.P.C. 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, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3) :

"It is true 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

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

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."

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 require any long drawn process of reasoning on points where there may conceivably the 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, 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."

(emphasis supplied)

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

12. The averments made in the present application and the submissions advanced by the learned Assistant Government Pleader, during the hearing of this application, are such that touch upon the merits of the case. None of these submissions were advanced when the main petition was being heard and decided. The order of the Court has been passed after hearing the learned counsel for the respective parties with no objection by the applicants. As the applicants did not raise any objection during the hearing of the said petition, they are precluded from raising them now, at this stage.

13. It is an admitted position, which is not denied by the learned Assistant Government Pleader, that the order of this Court dated 28.02.2014, is not an order on merits. By way of this order, applicant No.2 was directed to consider and decide the application of the petitioner dated 21.09.2000, for grant of appointment on compassionate grounds, keeping in view the aspect mentioned in the communication dated 27.09.2010, issued by respondent No.4 in the petition, who is applicant No.4 in the present application.

14. It was incumbent upon applicant No.2 to take an appropriate decision in the matter. How, and in what manner the decision was to be taken and what aspects were to be considered, was left to applicant No.2.

15. The submissions advanced by Mr.D.M. Devnani, learned Assistant Government Pleader, in support of the present application, are submissions on the merits of the petition. Whether the application of the petitioner dated 21.09.2000 could have been made or not, whether it was genuine or not, or whether the applicants could have rejected the application on any of the grounds submitted by the learned Assistant Government Pleader, are not matters that can be looked into in the present application. The task of considering the application of the respondent was the responsibility of applicant No.2. How such consideration was to take place was to be decided by applicant No.2.

16. It is clear that by way of the present application, the applicants are trying to put words into the mouth of the Court, in order to justify some aspect of the matter that may have occurred to them after the petition was disposed of. The Court refuses to be drawn into

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

such type of a snare. The submissions advanced by the learned Assistant Government Pleader, which are based upon the averments made in the application, are a result of hindsight, gained after the passing of the order dated 28.02.2014. Hence, this Court, having not decided the petition on merits, can have nothing further to say regarding such submissions, except that they deserve outright rejection.

17. There remains the issue regarding the clarification of the order dated 28.02.2014. Though it is not specifically mentioned in the application which part of the order is required to be clarified, however, during the course of hearing learned Assistant Government Pleader has stated that paragraph-6 of the order may be clarified. The said paragraph has already been reproduced hereinabove.

18. A perusal of the same does not indicate that any clarification is required regarding the said order. The order is clear and unambiguous and couched in simple language; therefore, in the view of this Court, it does not require any clarification at all.

19. There is another aspect of the matter. The present application has been made after a delay of 173 days. A cursory prayer has been made in the application for condonation of delay, after the prayer for review and clarification of the order. However, not a single word has been stated in the entire application, regarding the reason for the delay. It is a settled position of law that even a large delay can be condoned if the applicant shows sufficient cause for condonation thereof. However, a small delay may not be condoned if there is no explanation for it and sufficient cause for condonation of delay has not been shown. In the present case, there is no explanation for the delay, therefore, it can hardly be said that sufficient cause has been shown.

20. Considered from every angle, the present application is devoid of merit.

21. The application is, therefore, rejected. Rule is discharged. There shall be no orders as to costs."

R/CR.MA/12499/2017 ORDER DATED: 06/02/2023

7. Notice was drawn by the Court at the relevant time with regard to the alleged misrepresentation made and on that ground, prayer was made for review of the order, the Court has not considered any such clarification. Such clarification and the grounds so raised were rejected by the Court in the review application, by the reasons as noted hereinabove. Under these circumstances, when there is no specific observations of the Court with regard to any misrepresentation or misdeed or cheating by the applicant in connection with the application dated 21.09.2000 prayed for compassionate appointment, the impugned FIR is abuse of process of law and the same is quashed and set aside.

8. In the result, this petition is allowed. The impugned FIR bearing CR-I No. 43 of 2017 registered with 'B' Division Police Station, District : Panchmahal dated 06.05.2017 for the offences punishable under Sections 406 and 420 of the Indian Penal Code and the proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicant. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(GITA GOPI,J) SALIM/