# Manoj Kumar & Ors v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 869
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-30
- **Case number:** Civil Misc. Review Application No. 121 of 2021
- **Bench:** Surya Prakash Kesarwani, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-ors-v-state-of-u-p-anr-47409
- **Pages:** 8

## Headnote

Sri Ajay Kumar, Sri Amrendra Nath Singh
(Senior Adv.)

A.
Practice
&
Procedure
-
Review
Application - The petitioners are elected
members of Zila Panchayat and have not been
disqualified to cast their vote in election of
President
of
Zila
Panchayat,
Firozabad.
Therefore, the petitioner failed to point out any
error apparent on the face of the record of the
judgment dated 02.07.2021. (Para 11)

Review Application Rejected. (E-10)

List of Cases cited:

## Text

9 All Manoj Kumar & Ors. Vs. State of U.P. & Anr.
869
application under section 156(3) of the
Code has been considered in a recent
judgment of this Court in Kailash Nath
Dwivedi Vs State of U.P. and Others7.

18. Learned counsel for the petitioner
has not been able to dispute the aforesaid
settled legal position with regard to the
ambit
and
scope
of
exercise
of
discretionary powers by a Magistrate under
section 156(3) of the Code with regard to
issuing a direction for registration of an
F.I.R. and its investigation or in a case
where the complainant is in possession of
the complete details of the case and also the
material evidence, issuing a direction for
registration of the case as a complaint case.

19. The courts below having followed
the aforestated principles with regard to the
exercise of powers under section 156(3) of
the Code, the orders, which are sought to
be assailed by means of the present petition
cannot be said to suffer from any infirmity
so as to warrant interference in exercise of
jurisdiction under Article 227 of the
Constitution of India.

20. The petition stands accordingly,
dismissed.
----------
(2021)09ILR A869
ORIGINAL JURISDICTION
CIVILL SIDE
DATED: ALLAHABAD 30.07.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Civil Misc. Review Application No. 121 of 2021
In
Writ C No. 14512 of 2021

Manoj Kumar & Ors. ....Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Sudhanshu Srivastava, Sri Jagannath
Maurya

Counsel for the Respondents:
Sri Ajay Kumar, Sri Amrendra Nath Singh
(Senior Adv.)

A.
Practice
&
Procedure
-
Review
Application - The petitioners are elected
members of Zila Panchayat and have not been
disqualified to cast their vote in election of
President
of
Zila
Panchayat,
Firozabad.
Therefore, the petitioner failed to point out any
error apparent on the face of the record of the
judgment dated 02.07.2021. (Para 11)

Review Application Rejected. (E-10)

List of Cases cited:

1. Chief Election Commissioner & ors. Vs Jan
Chaukidar (Peoples Watch) & ors. (2013) 7
SCC507

2. Boddula Krishnaiah Aiyar & ors. Vs State
Election Commissioner A.P. & ors. (1996) 3 SCC
416

3. Northern India Caterers (India) Ltd. Vs Lt.
Governor of Delhi AIR 1980 SC 674

4. Kamlesh Verma Vs Mayawati (2013) 8 SCC
320

5. Sarla Mudgal Vs U.O.I.(1995) 3 SCC 635

6. Kerala State Electricity Board Vs Hitech
Electronics & Hydropower Ltd. & ors.(2005) 6
SCC 651

7. M/s Jain Studios Ltd. Vs ShinSatellite Public
Co. Ltd. (2006) 5 SCC 501

8. Moran Mar Basselios Catholics Vs The Most
Rev. Mar Poulose Athanasius AIR 1954 SC 526

9. T.C. Basappa Vs T. Nagappa & anr. AIR1954
SC 440
870 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Hari Vishnu Kamath Vs Sayed Ahmad Isaque
& ors. AIR 1955 SC 233

11. UOI Vs Sandur Manganese and Iron Ores
Ltd. & ors. (2013) 8 SCC 337

12. Kamlesh Verma Vs Mayawati (2013) 8 SCC
320

13. Akshay Kumar Singh Vs State (N.C.T. of
Delhi) (2020) 3 SCC 431

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Manish Goyal, learned
Additional Advocate General, alongwith
Sri Ajeet Kumar Singh, learned Additional
Advocate General assisted by Sri J.N.
Maurya, learned Chief Standing Counsel
and Sri Sudhanshu Srivastava, learned
Additional Chief Standing counsel; and Sri
Amrendra Nath Singh, learned senior
advocate, assisted by Sri Ajay Kumar,
learned counsel for the petitioners.

2. Sri Manish Goyal, learned
Additional Advocate General submits as
under :

i. The writ petition was filed by
the petitioners concealing material facts of
the case with respect to FIR being Case
Crime No.222/2021, dated 08.06.2021,
under Section 364 IPC, P.S. Narkhi,
District - Firozabad, against petitioner Nos.
1,2 & 3, Case Crime No. 68/2021, dated
07.04.2021, under Sections 147, 188, 341,
353, 171 E, 171 H, I.P.C. read with Section
7 of the Criminal Law (Amendment) Act,
1932 against the petitioner No.4 and
rejection
of
his
anticipatory
Bail
Application No.1802 of 2021 by the
Additional Sessions Judge Fast Track Court
No.1
Firozabad,
vide
order
dated
30.06.2021, rejection of anticipatory bail
application No.292 of 292 of 2021 arising
out of case crime no.222 of 2021, under
Section 364 I.P.C. by the Court of
Additional District Judge/Specal Judge
POSCO Court No.2, Firozabad, vide order
dated
02.07.2021
and
Case
Crime
No.73/2021, under Sections 341, 323, 504,
506
and
307
I.P.C.,
P.S.
Basai,
Mohamadpur, District - Firozabad (FIR
dated 09.05.2021) against the petitioner
No.6.

ii. Since against the petitioners
F.I.Rs. were registered, therefore, the
petitioners even though elected members of
Zila Panchayat; have no right to vote in the
election of President, Zila Panchayat of
Firozabad, in view of the law laid down by
Hon'ble
Supreme
Court
in
Chief
Election Commissioner and others Vs.
Jan Chaukidar (Peoples Watch) and
others (2013) 7 SCC 507 (paras 6 & 7)
inasmuch as persons in lawful custody have
no right to vote and they shall not be
deemed to be electors.

iii. The writ petition was not
maintainable in view of the provisions of
Article 243 O of the Constitution of India
which provides that no election of any
Panchayat shall be called in question
except by an election petition presented to
such authority and in such manner as is
provided for by or under any law made by
the legislature of a State. Reliance is placed
on the judgment of Hon'ble Supreme Court
in (1996) 3 SCC 416 (para 7,8, 9, and 11)
Boddula Krishnaiah Aiyar and another
Vs. State Election Commissioner A.P.
and others. Since the facts regarding
criminal cases as stated above have been
concealed by the petitioners, the petitioners
can not be said to have approached the
Court with clean hands which shall disentitle them to any relief under Article 226
of the Constitution of India.
9 All Manoj Kumar & Ors. Vs. State of U.P. & Anr.
871
iv.
The
effect
of
the
order
dated
02.07.2021, passed by this Court is that the
petitioners' arrest have been stayed.

3. Sri Amrendra Nath Singh,
learned senior counsel representing the
petitioners,
opposed
the
Review
Application and submits as under :

i. A review application can be
entertained only if the order sought to be
reviewed suffers from patent error of law,
glaring omission of facts and apparent
mistake which neither exists nor has been
alleged in the review application nor has
been
argued.
Therefore,
the
review
application itself is not maintainable.
Reliance is placed upon a judgment of
Hon'ble Supreme Court in Northern India
Caterers (India) Ltd. v. Lt. Governor of
Delhi AIR 1980 SC 674.

ii. The submissions made by the
learned Additional Advocate Generals and
the allegations made in the Review
Application are false inasmuch as the
petitioners have disclosed in paragraphs 13
and 14 about the Case Crime No.73 of
2021, under Sections 341, 323, 504, 506
and 307 I.P.C., P.S. - Basai, Mohamadpur,
District - Firozabad and Case Crime No.
68/2021, dated 7.4.2021, under Section
147, 188, 341, 353, 171E, 171 H, I.P.C.
read with Section 7 of the Criminal Law
(Amendment) Act 1932, P.S. - Eka, District
- Firozabad. The petitioners have also
disclosed in paragraph 7 of the writ petition
the fact regarding FIR being Case Crime
No.222/2021, under Section 364 IPC, P.S.
Narkhi, District - Firozabad, lodged against
unknown persons and also annexed as
Annexure 3 to the writ petition.

iii. The respondents have not
disputed at all the facts stated in paragraphs
8,9,10,11 and 12 of the writ petition which
clearly proves that ruling political party and
members in collusion with the police
authorities and District Administration are
bent upon to ensure that the candidate of
the ruling party wins as President of Zila
Panchayat.
For
that
purpose
alone,
petitioners have been falsely implicated
which is nothing but a political vendetta.

iv.
The
conduct
of
the
respondents
is
in
contrast
to
their
constitutional duty for free and fair
election. In fact the respondents are
destroying the democracy.

v. Bare perusal of the order dated
02.07.2021, passed by this court leaves no
manner of doubt that the order was passed
with the consent of learned counsels for the
parties. The factum of consent has not been
disputed. Therefore, the review application
is not entertainable. All the petitioners have
casted their votes today. Therefore, no
cause of action survives for filing the
review application.

vi. This court while passing the
order dated 02.07.2021 neither stayed the
arrest of the petitioners nor made any
comment with respect to the FIRs. lodged
against the petitioners nor interfered with
the FIRs. in any manner and for this reason
the petitioners, after they casted their votes
today; have been arrested by the police.

vii. The petitioners shall take
legal recourse against the criminal cases in
which they have been falsely implicated.

viii. The petitioners have neither
been disqualified as elected members of
Zila Panchayat nor they have been declared
disqualified to cast their vote in the election
of President Zila Panchayat, Firozabad.
872 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, the order dated 02.07.2021 does
not suffer from any manifest error of law.

ix. The Review Application is
wholly
groundless,
misconceived
and
frivolous and deserves to be dismissed with
exemplary cost.

4. Before we proceed to examine the
rival contentions of the parties, it would be
appropriate to reproduce the order dated
02.07.2021 passed by this Court, against
which the State-respondents have filed the
present review application. The aforesaid
order dated 02.07.2021 passed by this
Court, is reproduced below:

"Heard Sri Amrendra Nath Singh,
learned senior advocate assisted by Sri Ajay
Kumar, learned counsel for the petitioners
and Sri Ajeet Kumar Singh, learned
Additional Advocate General for the Staterespondents.

Petitioners claim that they are
elected members of Zila Panchayat and
have a right to vote in the election of
President of Zila Panchayat, District
Firozabad scheduled for 03.07.2021 but the
respondents are attempting not to allow the
petitioners to cast their votes on the basis of
a First Information Report No.0222 of 2021,
dated 08.06.2021 under Section 364, I.P.C.,
P.S. Narkhi, District Firozabad with respect
to an alleged incident dated 06.05.2021. The
aforesaid FIR is against unknown persons.
The petitioners are not named in it. Learned
counsel for the petitioners further submits
that the petitioners have a right to cast their
votes but they are being prevented by the
respondents from doing so, so as to help
another candidate. He further submits that a
direction may be issued to the respondents
to ensure that the petitioners may cast their
vote safely.

Sri Ajeet Kumar Singh, learned
Additional Advocate General for the Staterespondents submits that if the petitioners
are members of Zila Panchayat and have a
right to cast vote in the election of
President of Zila Panchayat, Firozabad,
the State is under constitutional duty for
free and fair election.

Considering the submissions of
the learned counsels for the parties and
with their consent, this writ petition is
being finally disposed off without calling
for a counter affidavit, directing the
respondents to ensure that the petitioners
may cast their votes safely in the election of
President, Zila Panchayat, Firozabad,
scheduled to be held on 03.07.2021.

Sri Ajeet Kumar Singh, learned
Additional Advocate General for the Staterespondents shall intimate this order in
writing today itself to the respondent Nos.2
to 6 for compliance.

It is made clear that we have not
expressed any opinion with respect to the
criminal case, if any, either registered
against the petitioners or in which they are
wanted.

With the aforesaid directions, the
writ petition is disposed off."

5. Perusal of the aforesaid order
would clearly reveal that the aforesaid
order was passed with the consent of the
learned counsels for the parties and on the
statement
of
the
learned
Additional
Advocate General that if the petitioners are
members of Zila Panchayat and have a
right to cast vote in the election of
President of Zila Panchayat, Firozabad, the
State is under constitutional duty for free
and fair election. Nothing has been brought
9 All Manoj Kumar & Ors. Vs. State of U.P. & Anr.
873
before us even by the aforesaid review
application that either the petitioners are
not members of Zila Panchayat, Firozabad
or
their
memberships
have
been
discontinued by a competent authority or
that they have no right to vote. In the
absence of these basic facts, there does not
arise any question for review of the aforequoted order dated 02.07.2021.

6. During course of hearing of review
application, Sri Amrendra Nath Singh,
learned senior advocate has stated that the
petitioners have casted their votes today in
the election of President, Zila Panchayat,
Firozabad. We requested learned Additional
Advocate Generals to verify the statement
and to state as to whether the petitioners
have casted their votes today? After seeking
instructions, learned Additional Advocate
Generals assisted by Sri Sudhanshu, learned
Additional
Chief
Standing
Counsel
confirmed and stated before this court that
the petitioners have casted their votes today
in the election of President, Zila Panchayat,
Firozabad. This statement of fact is recorded
in our order dated 03.07.2021 by means of
the order dated 02.07.2021, we have merely
directed the respondents to ensure that the
petitioners may cast their votes safely in the
election of President, Zila Panchayat,
Firozabad
scheduled
to
be
held
on
03.07.2021. We have also made it clear that
in the said order, we have not expressed any
opinion with respect to the criminal cases, if
any, either registered against the petitioners
or in which they are wanted. Thus, after the
petitioners casted their votes as admitted by
learned
Additional
Advocate
Generals
appearing
for
the
applicants/
Staterespondents, no cause of action survived to
press the review application, yet the learned
Additional Advocate Generals pressed it and
argued the matter.

Scope of Review:-

7. It is well settled that a party is not
entitled to seek review of a judgment or order
of this court merely for rehearing and a fresh
decision. A review application for review of a
judgment or order of this court under Article
226 of the Constitution of India, can be
justified only when circumstances of a
substantial and compelling character make it
necessary to do so. Review may be justified if
a manifest wrong has been done and it is
necessary to pass an order to do full and
effective justice. Review proceeding cannot
be equated with the original hearing of the
case. A judgment and order can be reviewed
only where a glaring omission or patent
mistake or like grave error has crept in earlier
by judicial fallibility. An order can also be
reviewed on the ground of discovery of new
and important matter for evidence which
even after exercise of due diligence was not
within the knowledge of the applicant or
could not be produced by him at the time of
hearing.

8. Principles for review of a judgment
or order have been summarised by the
Apex Court in Kamlesh Verma vs.
Mayawati, (2013) 8 SCC 320 (paras 20,
20.1 and 20.2), as under:

"20. Thus, in view of the above,
the following grounds of review are
maintainable as stipulated by the statute:

20.1. When the review will be
maintainable:

(i)
Discovery
of
new
and
important matter or evidence which, after
the exercise of due diligence, was not
within knowledge of the petitioner or could
not be produced by him;
874 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Mistake or error apparent on
the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient
reason" have been interpreted in Chhajju
Ram v. Neki (1922) 16 LW 37 and
approved by this Court in Moran Mar
Basselios Catholicos v. Most Rev.Mar
Poulose Athanasius, AIR 1954 SC 526 to
mean "a reason sufficient on grounds at
least analogous to those specified in the
rule". The same principles have been
reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd., (2013) 8
SCC 337.

20.2. When the review will not be
maintainable:

(i) A repetition of old and
overruled argument is not enough to
reopen concluded adjudications.

(ii)
Minor
mistakes
of
inconsequential import.

(iii) Review proceedings cannot
be equated with the original hearing of the
case.

(iv) Review is not maintainable
unless the material error, manifest on the
facts of the order, undermines its soundness
or results in miscarriage of justice.

(v) A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected but lies
only for patent error.

(vi) The mere possibility of two
views on the subject cannot be a ground for
review.

(vii) The error apparent on the
face of the record should not be an error
which has to be fished out and searched.

(viii)
The
appreciation
of
evidence on record is fully within the
domain of the appellate Court, it cannot be
permitted to be advanced in the review
petition.

(ix) Review is not maintainable
when the same relief sought at the time of
arguing
the
main
matter
had
been
negatived."

9. The power of review can be
exercised for correction of a mistake but
not to substitute a view. In the case of
Sarla Mudgal vs. Union of India, (1995)
3 SCC 635, Hon'ble Supreme Court has
laid down the law that mistake or error
apparent on the face of record may require
review. Error apparent on the face of the
proceeding is an error which is based on
clear ignorance or disregard of the
provisions of law. In a review petition, it is
not open to re-appreciate the evidence and
to reach to a different conclusion even if
that is possible. Conclusions arrived at by
appreciation of facts cannot be assailed in a
review petition unless there is an error
apparent on the face of the record or for
some reason akin, vide Kerala State
Electricity
Board
vs.
Hitech
Electrothermics & Hydropower Ltd.and
others, (2005) 6 SCC 651. The principles
summarised in foregoing paragraphs have
also been reiterated by Apex Court in M/S
Jain Studios Limited vs Shin Satellite
Public Co. Ltd, (2006) 5 SCC 501,
Moran Mar Basselios Catholicos vs The
Most Rev. Mar Poulose Athanasius AIR
1954 SC 526, T. C. Basappa vs T.
Nagappa and Another, AIR 1954 SC
440, Hari Vishnu Kamath vs Syed
9 All Manoj Kumar & Ors. Vs. State of U.P. & Anr.
875
Ahmad Ishaque and Others, AIR 1955
SC 233, Union of India vs. Sandur
Manganese and Iron Ores Ltd. and
others, (2013) 8 SCC 337, Kamlesh
Verma vs. Mayawati, (2013) 8 SCC 320
and Akshay Kumar Singh vs. State
(N.C.T. of Delhi) (2020) 3 SCC 431
(Para-11).

10. The submissions made by learned
counsel for the applicants as afore-quoted
would reveal that the applicants have
merely stated that first information report
has been registered against the petitioner
just before the Election of President, Zila
Panchayat, Firozabad. The petitioners have
fully disclosed in the writ petition the
criminal cases lodged against them. The
State applicants have not disputed the
allegations made in the paragraphs- 8, 9, 11
and 12 of the writ petition, which are
reproduced below:

"8. That on this First Information
Report which was lodged as Case Crime
No.222 of 2021, the victim Pravesh Kumar
also
filed
an
affidavit
before
the
Superintendent of Police Firozabad which
was not considered and Investigating
Officer recorded the statement of two
persons and four petitioners made as an
accused. For kind perusal of this Hon'ble
Court, A Photo copy of the Affidavit filed
by Victim Pravesh Kumari is being filed
herewith and Marked as Annexure-No.4 to
this writ petition.

9. That the Police on the basis of
criminal
case
wants
to
arrest
the
petitioners and restrain to cost their votes
an election of President of Zila Panchayat,
which was going-on 3.7.2021.

11. That the Constitution of India
also provides to petitioners as well as
Citizen of India to cost their votes for his
free will in Election, but the Ruling party in
State (Bhartiya Janta Party) with collusion
of local administration want to restrain the
petitioners to cast their votes, hence
Lordship kindly permit to petitioners to
cast their votes an election of Zila
Panchayat of President which is going on
3.7.2021, otherwise the petitioners shall
suffer irreparable loss and injury, which
was not compensated in any manner.

12. That in District Firozabad
total members of Zila Panchayat are 33,
the Six Members of Zila Panchayat (They
are petitioners in the present writ petition)
were falsely implicated in Criminal case
due to they are not cost their votes in
favour of ruling party candidate."

11. Since the petitioners are elected
members of Zila Panchayat and have not
been disqualified to cast their votes in
election of President of Zila Panchayat,
Firozabad.
Therefore,
there
was
no
apparent error either in the statement of the
learned Additional Advocate General as
noted in the order or in the direction of this
court to allow the petitioner to cast their
votes.
The
submissions
of
learned
Additional
Advocate
General
or
the
Review Application neither discloses any
manifest error/ glaring omission/ patent
mistake in the order dated 02.07.2021 nor
discloses discovery of any new facts
requiring review of the order. None of the
circumstances requiring review of the order
dated 02.07.2021, as paer settled principles;
exists in the present set of facts.

12. From the facts as narrated above
and the contents of review application, it
may be safely observed that the present
review application has been filed by the
State-respondents merely to avoid the order
876 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 02.07.2021 so that somehow the
petitioners
who
are
lawfully
elected
members of Zila Panchayat, may not cast
their votes for the election of President,
Zila Panchayat, Firozabad. A review filed
for such purpose is not maintainable and
deserves rejection with exemplary cost.

13. For all the reasons afore-stated,
we are of the view that the applicants/
State-respondents have filed a frivolous
review application, which deserves to be
dismissed with costs.

14. In view of the aforesaid, the
review application is dismissed with
costs.
----------
(2021)09ILR A876
ORIGINAL JURISDICTION
CIVILL SIDE
DATED: LUCKNOW 03.09.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Civil Misc. Review Application Defective No.138
of 2021

State Of U.P. & Ors. ....Applicants
Versus
Rajit Singh & Anr. ...Respondents

Counsel for the Applicants:
C.S.C.

Counsel for the Respondents:

A.
Practice
&
Procedure
-
Review
Application - The Review is not an appeal in
disguise. Rehearing of matter is impermissible in
the garb of review. In the present case, the
petitioner failed to point out any error in the
judgment under challenge. (Para 11)

Review Application Rejected. (E-10)
List of Cases cited:

1. Rajendra Kumar Vs Rambai AIR 2003 SC
2095 (followed)

2. Zahira Habibullah Sheikh Vs St.of Guj. (2004)
5 SCC 353 (followed)

3. Thungabhadra Industries Ltd. Vs The
Government of Andhra Pradesh AIR 1964 SC
1372 (followed)

4. Parsion Devi & ors. Vs Sumitri Devi & ors.
1997 (8) SCC 715 (followed)

5. Lily Thomad Vs U.O.I. AIR 200 SC 1650
(followed)

6. Inderchand Jain Vs Motilal (2009) 4 SCC 665
(followed)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.
&
Hon'ble Mrs. Saroj Yadav, J.)

(Application No.98887 of 2021)

1. The application seeks condonation
of delay in filing the review application.

2. Learned counsel for the applicant
submits that due to pandemic of Covid-19
(Corona virus) all over the country,
resulting into lockdown and closure of
High Court, the appeal could not be filed
within the limitation period.

3. It is next submitted that the Apex
Court in Suo Motu Writ Petition (Civil) No.
3 of 2020 has also extended the limitation
considering
the
spread
of
Covid-19
(Corona Virus).

4. Considering the circumstances of
Covid-19 (Corona Virus) as well as order
dated 23.03.2020 passed by the Apex Court
in Suo Motu Writ Petition (Civil) No. 3 of