ARUN TANDON, J. - (1.) WE have heard Sri Dileep Kumar, learned counsel on behalf of the petitioner, learned A.G.A. on behalf of the State Authorities and Sri R.P.Pandey on behalf of complainant -respondent No.2 and have perused the record. Petitioner before this Court seeks quashing of the order of the Additional Chief Judicial Magistrate., Court No.2, District Badaun dated 18.08.2009 as also the order passed by the Lower Revisional Court namely Session Judge, Badaun dated 6.7.2010 . Counsel for the parties have agree that the present writ petition may be disposed of at this stage itself specifically in view of the order proposed to be passed by this Court.
(2.) IT is not necessary for us to detail all the facts giving rise to the present petition. Facts relevant for deciding the present writ petition alone are being stated, which are as follows: On the basis of protest petition, filed by Kuldeep Kishore Sharma, respondent No.2 and the statements made by Jyoti Sharma, prosecutrix under Section 200 Cr.P.C., as well as by Ramesh Chand Sharma, P.C. Sharma, Dharmendra Sharma, the Magistrate has summoned the petitioner namely Yogendra Sagar under Section 376(g) I.P.C. and other co -accused namely Tajendra Sagar and Neeraj Sharma alias Meenu under Section 366, 376(g) I.P.C. vide order dated 18.8.2009. Not being satisfied with the summoning order, the petitioner Yogendra Sagar filed revision before the Session Judge being Revision No.2 of 2010. Since the revision was barred by limitation, he also made an application under Section 5 of the Limitation Act for condoning the delay in filing of the revision. The application under Section 5 of the Limitation Act has been rejected under order impugned dated 6.7.2010.
(3.) THE order of the revisional Court is being challenged on the ground that it proceeds on misconception of facts and is even otherwise unsustainable in the eye of law. It is the case of the petitioner that the order under challenge in the revision was admittedly made on 18.8.2009. The limitation prescribed for filing of the revision against such order is 90 days. The revision infact was presented before the Session Judge on 21.12.2009 i.e. after one month delay. The Sessions Judge has dismissed the Section 5 application after recording that the petitioner has not been able to establish as to how he obtained knowledge of the order dated 18.08.2009 only on 21.12.2009 and secondly the affidavit in support of Section 5 application was filed by the pairokar of the petitioner and not by the petitioner himself. It has been noticed that an affidavit has been filed by the petitioner but at a later point of time stating therein that he was at Lucknow during the relevant period.;