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Rohit Pandit @ Lokesh Kumar Tiwari … vs State Of U.P. Thru. Prin. Secy. … on 16 July, 2021

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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 9

Case :- CRIMINAL MISC REVIEW APPLICATION No. – 110 of 2021

Applicant :- Rohit Pandit @ Lokesh Kumar Tiwari [In W.P.12093(M/B)2021]

Opposite Party :- State Of U.P. Thru. Prin. Secy. Home,Lko. Ors.

Counsel for Applicant :- Dharm Raj Mishra

Hon’ble Ramesh Sinha,J.

Hon’ble Narendra Kumar Johari,J.

1. Heard Shri Dharm Raj Mishra, learned counsel for the applicant, Shri Pradeep Kumar Shukla, learned counsel for private respondent/complainant, Smt. Meera Tripathi, leaned A.G.A. for the State-respondents and perused the record.

2. The present review application has been filed on behalf of the applicant, namely, Rohit Pandit @ Lokesh Kumar Tiwari for reviewing the judgment and order dated 06.07.2021 passed in Writ Petition No.12093 (M/B) of 2021 (Rohit Pandit @ Lokesh Kumar Tiwari Vs. State of U.P. others) wherein the Court after hearing the learned A.G.A. and perusing the FIR as well as material brought on record dismissed the writ petition.

3. It has been submitted by learned counsel for the applicant that on 06.07.2021 he could not get himself connected in the matter due to technical issue in internet connectivity and the matter was decided without giving him opportunity of hearing. He further submits that new developments have taken place after filing the present review application, which are necessary to be brought on record as he could not place the same before the Court on the last date due to internet problem, hence he prays that the order dated 06.07.2021 may be reviewed.

4. He next argued that though the FIR was registered against the petitioner under Sections 342, 323, 354 and 7/8 of POCSO Act, Police Station Badosarai, District Hardoi, but subsequently the statement of victim was recorded under Section 164 Cr.PC. and the offence under Section 376 I.P.C. has been added during the course of investigation.

5. It has further been stated by learned counsel for the applicant that the mother of the victim has given an application to the Superintendent of Police, Barabanki as well as given an affidavit wherein she denied the allegation of rape against the petitioner in the incident.

6. Shri Pradeep Kumar Mishra, learned counsel appearing for the private respondent has stated that though he was also present on the last day, i.e. 06.07.2021, but his presence could not be marked and the petition was dismissed by this Court.

7. It transpires from record that on 17.06.2021, learned counsel for applicant/petitioner prayed for adjournment on the ground of some personal reason and the matter was posted after two weeks and the matter was again listed on 06.07.2021 in the cause list at Sl. No.5.

8. On the said date, i.e. 06.07.2021, learned A.G.A. pointed out that offence under Section 376 I.P.C. has been added in the present case on the basis of statement of victim recorded under Section 164 Cr.P.C. wherein allegation of rape has been levelled against the accused applicant.

9. Learned counsel for private respondent as well as learned A.G.A. submit that the instant review application has been filed for reviewing the order dated 06.07.2021 on the ground of non-availability of learned counsel for the applicant/petitioner due to technical problem is not sustainable in the eyes of law.

10. We have heard the arguments advanced by learned counsel for the parties and gone through the record.

11. 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.

12. 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.

13. 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.

14. 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.

15. In the instant case, there appears to be no reason for the victim/prosecutrix to speak lie before the Magistrate in her statement under Section 164 Cr.P.C. and the affidavits of the victim/prosecutrix and mother of victim/prosecutrix, which have been filed within six days, show that the petitioner won over the victim and private respondent (mother of the victim). Simply because the victim/prosecutrix and mother of victim/prosecutrix, who lodged the impugned FIR against the petitioner have filed their affidavits denying the incident and the allegation levelled against the petitioner under Section 164 Cr.P.C., cannot be a ground to quash the impugned FIR which may compel this Court to review its order.

16. Keeping in mind the aforesaid legal proposition of law and also considering the fact that the applicant/petitioner has not made any submission with regard to error in the judgment under review on the face of record, which is the primary reason for filing the review of any order, we are of the view that no case for reviewing the judgment and order dated 06.07.2021 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 06.07.2021.

17. The review application is, accordingly, rejected.

18. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

19. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 16.7.2021

Anand/-

 

 

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