Court No. - 44
Case :- APPLICATION U/S 482 No. - 30135 of 2018 Applicant :- Malikhan Singh And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shivam Yadav,Akhilesh Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Shivam Yadav, learned counsel for the applicants and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 03.08.218 passed by the Special Judge (D.A.A.)/Additional Sessions Judge, Mainpuri, in Criminal Misc. No. 141 of 2015 (Malikhan Singh and others Vs. State of U.P. and other), whereby the aforesaid criminal revision preferred by the applicants has been dismissed on the ground of delay.
Learned counsel for the applicants has filed an amendment application in Court today, which is taken on record.
Office is directed to register the said amendment application and allot a number.
Perused the amendment application. In view of the facts stated in the affidavit filed in support amendment applicant, the amendment application is allowed.
Let necessary corrections be incorporated in the present application under Section 482 Cr.P.C. during the course of the day.
From the perusal of the record, it appears that the opposite party no.2 filed an application dated 12.08.2009 in terms of Section 156 (3) Cr.P.C., which was allowed. Pursuant to the aforesaid, a first information report dated 27.03.2010 came to be registered as Case Crime No. 41 of 2010 under Section 376 I.P.C., Police Station-Kurra, District-Mainpuri. Upon completion of the statutory investigation of the aforesaid case crime number in terms of Chapter 12 Cr.P.C., the Police of the concerned Police Station submitted a final report. Upon submission of the final report, a protest petition was filed by the opposite party no.2, which was allowed with the finding that the protest petition filed by the opposite party no.2 shall be treated as a complaint and consequently, to be tried as a complaint case. As a result of the aforesaid, the statement of the first informant, namely, Smt. Sukh Devi-opposite party no.2 was recorded in terms of Section 200 Cr.P.C. followed by the statement of husband of the prosecutrix, namely, Sarwan Singh in terms of Section 202 Cr.P.C. On the strength of the aforesaid statements, the concerned court passed the summoning order dated 17.07.2014.
It is the case of the applicants before this Court that this summoning order dated 15.07.2014 was never served upon the applicants and the same came into their knowledge only when the Police visited their house. Immediately thereafter they obtained a certified copy of the impugned summoning order as well as the other documents and preferred criminal revision before the Special Judge (D.A.A.)/Additional Sessions Judge, Mainpuri. As there was delay in filing the criminal revision, accordingly, an application under Section 5 of the Indian Limitation Act was filed seeking condonation of delay in filing the aforesaid criminal miscellaneous case. This application for condonation of delay came to be registered in Criminal Misc. No. 141 of 2015 and by means of the impugned order dated 03.08.2018, the application for condonation of delay has been rejected. As the delay condonation has been rejected, the criminal revision filed by the applicants has also been dismissed as barred by limitation.
Mr. Shivam Yadav, learned counsel for the applicants submits that the court below has dismissed the application for delay in filing the criminal revision on the findings that the cause shown for condonation of delay in filing the application is neither sufficient nor truthful. Elaborating his submission, he submits that the court below has not recorded the finding of fact regarding the date of service of summons upon the applicants. He further submits that there was no such material brought before the revisional court on the basis of which the plea taken by the present applicants before the revisional court that the knowledge of the impugned summoning order was acquired only on 01.06.2015 could be disputed. He therefore submits that the revisional court has exercised its jurisdiction with material irregularity resulting in miscarriage of justice.
Learned A.G.A. appearing for the opposite party no.1 has supported the impugned order and submits that no illegality can be attached in the order passed by the revisional court in rejecing the delay condonation application filed by the applicants seeking condonation of delay in filing the criminal revision.
The Court finds that the revisional court has not recorded any categorical finding that there was any deliberate negligence or laches on the part of the applicants in filing the criminal revision even after service of summons in the complaint case pending before the Magistrate. Similarly, there is no reason assigned as to why the cause shown by the applicants for seeking condonation of delay is untruthful. In the absence of any such findings, dismissal of criminal revision amounts to exercise of jurisdiction with material irregularity resulting in miscarriage of justice.
In view of the facts noted herein above, the present Application Under Section 482 Cr.P.C. succeeds and is allowed. The order dated 03.08.218 passed by the Special Judge (D.A.A.)/Additional Sessions Judge, Mainpuri, in Criminal Misc. No. 141 of 2015 (Malikhan Singh and others Vs. State of U.P. and other) is hereby set aside. The matter is remanded to the Special Judge (D.A.A.)/Additional Sessions Judge, Mainpuri, who is directed to decide the Criminal Revision No. 141 of 2015 afresh within a period of one month from the date of presentation of a certified copy of this Order.
Order Date :- 17.9.2018 YK