HABIB Vs. STATE OF U P

JUDGEMENT

(1.) Brief facts of the case are that a complaint was filed by Smt. Imrana against the applicant Habib, who was his wife and marriage between them was solemnized six years prior to the filing of the present complaint under-Sections 420 and 406 I.P.C.. The statement of the complainant Smt. Imrana and her witnesses were recorded under Sections 200 and 202 Cr.P.C. by the learned Magistrate, who on the basis of the said evidence summoned the applicant and other accused persons for facing trial under Section 406 I.P.C. The case was fixed for recording the statement under Section 244 Cr.P.C. of the complainant Smt. Imrana. Smt. Imrana, the wife the applicant, died on 24.7.2011 during the course of trial. Thereafter, opp. party No. 2 Jaheer Ahmad who is the real brother of Smt. Imrana filed an application before the C.J.M., Bulandshahr in complaint case No. 9508 of 2008 on 12.9.2011 seeking permission from the Court for granting him to continue the trial against the applicant by substituting him in place of the complainant Smt. Imrana who was his sister. The said application of opp. party No. 2. Jaheer Ahmad was allowed by the learned Magistrate on 12.9.2011 fixing the case for evidence. When the applicant came to know about the said application dated 12.9.2011 of Jaheer Ahmad, brother of the complaint Smt. Imrana, as well as order dated 12.9.2011 passed by learned Magistrate, he appeared through his lawyer and moved exemption application for dispensing his presence and ultimately aggrieved by the order dated 12.9.2011, he filed a Criminal Revision before the Sessions Judge, Bulandshahr alongwith the delay condonation application under Section 5 of the Limitation Act. The lower revisional Court after hearing the applicant and opposite party No. 2 rejected the criminal revision filed by the applicant on the ground of limitation stating therein that the applicant had the knowledge about the order dated 12.9.2011 passed by the learned C.J.M. on 6.2.2011 as the counsel for the applicant Sri Sanjay Sharma had filed a requisition for obtaining the certified copy of the order dated 12.9.2011 by requisition No. 79 on 6.2.2012, whereas the applicant has stated before the lower revisional Court that he came to know about the order dated 12.9.2011 through his lawyer on 19.8.2012 which was opposed by opposite party No. 2. The lower revisional Court further observed that there was nine months delay in filing the said revision by the applicant which was not properly explained and no day to day explanation was given by the applicant for the said delay in filing the revision. Hence, the application under Section 5 of the Limitation Act of the applicant was rejected as the explanation given by the applicant for delay in filing the said revision was not satisfactorily explained by him. Hence, the said application Paper No. 5B of the applicant was rejected vide order dated 17.1.2013.

(2.) Being aggrieved by the order dated 17.1.2013 passed by Additional District Judge, Court No. 16, District Bulandshahr, the applicant in criminal revision No. 105 of 2012 as well as order dated 12.9.2011 passed by C.J.M. in complaint case No. 9508 of 2008, under Section 406 I.P.C., Police Station Kotwali City, District, Bulandshahr, the applicant filed the present 482 Cr.P.C. application before this Court.

(3.) No notice is required to be issued to opp. party No. 2 as the question involved in the present petition is legal one. Hence, this Court with assistance by the learned AGA proceed to hear the matter.