Remanded

Mohd. Haseeb and Another v. State of U.P. and Another

Allahabad HC23 Nov 2022A227/1218/2021

Case brief

AI extract

What is this about?

This petition under Article 227 challenged an order dismissing a criminal revision for being time-barred due to uncondoned delay. The High Court found the lower court acted supericially without examining material on record. It set aside the order and remanded the case for a fresh reasoned order.

What did the court decide?

Impugned order dated 17.12.2020 set-aside; case remanded to Sessions Judge to pass fresh speaking order within three months.

Mohd. Haseeb and Another Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2022)

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Reserved on- 11.11.2022

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Delivered on- 23.11.2022

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Court No. - 91

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Case :- MATTERS UNDER ARTICLE 227 No. - 1218 of 2021

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Petitioner :- Mohd. Haseeb And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- Shiv Kumar Yadav Counsel for Respondent :- G.A.

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Hon'ble Mrs. Jyotsna Sharma,J.

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Sri Shiv Kumar Yadav, learned counsel for the petitioners and learned A.G.A. for the State are present. None appears for the respondent no.2 despite service of notice.

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Perused the record.

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This miscellaneous petition under Article 227 of the Constitution of India has been presented on behalf of the petitioners- Mohd. Haseeb and Mohd. Iqbal Hussain Ansari, with a prayer to set-aside the order dated 17.12.2020 passed on an application filed under section-5 of the Limitation Act for condonation of delay in filing the criminal revision.

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The undisputed facts are as below:That respondent no.2, admittedly the wife of petitioner no.1 filed a complaint case against her husband and in-laws under section 406 I.P.C. before the court of Additional Chief Metropolitan Magistrate, Kanpur Nagar; the petitioner no.1- husband and the petitioner no.2- his father were summoned by an order dated 04.05.2019; against that summoning order, petitioner sought to file a criminal revision in the court of Sessions Judge, Kanpur Nagar along with an application for condonation of delay under section-5 of the Limitation Act; the respondent no.2 filed her objection. After exchange of counter and rejoinder affidavits the impugned order dated 17.12.2020 came to be passed dismissing the delay condonation application consequently dismissing the revision as time barred.

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It is contended on behalf of the petitioners that they came to know about the summoning order (dated 04.05.2019) only on 30.11.2019 for the first time when they received copy of the summoning order; they applied for certified copy of the order-sheet, which was received; the counsel for the petitioners fell ill and he could not attend his office for a month; only thereafter the delay condonation application could be prepared and filed on 20.01.2020; as the cause for delay of merely 170 days has been properly explained, therefore, his application should have been allowed; it is also said

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that he is ready to settle the matter with the respondent no.2 and that now no other equal, efficacious and alternative remedy is available to him. Therefore, the impugned order may be set-aside and the delay be condoned.

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In (2006) 3 SCC 312, Kishore Kumar Khaitan and Another vs. Praveen Kumar Singh , the Supreme Court held as below:-

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“13. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction.”

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I went through the impugned order. It appears that the learned revisional court simply believed the statements given by the opposite side in their affidavits and did not peruse any material available on record. There is no finding that when the summons were served on the petitioner/opposite side in the complaint case. There is no finding as to when he applied for copy of the order. The order is rather cryptic and is devoid of assessment or analysis of the material on record. The trial court has rather focused on the version of the petitioner, wherein he said that his counsel could not appear because of his personal difficulties. In my view, the court has not given any finding of fact and passed the order in a superficial and cursory manner. It has failed to render necessary findings based on material on record to support the inference drawn by it.

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In view of the above, I found it appropriate to exercise the powers under Article 227 of the Constitution of India. The order dated 17.12.2020 is hereby set-aside. The court, after affording opportunity to both the sides, shall pass a fresh speaking and reasoned order preferably within three months of production of certified copy of this order.

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Accordingly, the petition is disposed of .

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Order Date :- 23.11.2022 Saif

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Digitally signed by SHAIKH SAIF ABDIN Date: 2022.11.23 15:50:41 IST Reason: Location: High Court of Judicature at Allahabad

Mohd. Haseeb and Another v. State of U.P. and Another

Case brief

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Mohd. Haseeb and Another v. State of U.P. and Another

Case brief

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