Allowed

Roshan Lal v. State of U.P. and Anr.

Allahabad HC20 Oct 2022A482/8379/2017

Case brief

AI extract

What is this about?

The HC allowed a petition challenging a revisional order that remitted a case for fresh adjudication. The court held the order illegal as it directed the applicant to appear before a Magistrate despite having set aside the earlier summons and without expressly condoning the nine-month filing delay.

What did the court decide?

The order dated 30.6.2016 passed by the Additional District and Sessions Judge is set aside, and the matter is remitted to the revisional court for fresh hearing.

Roshan Lal Vs State of U.P. and Anr. — Constitutional and Fundamental Rights | Allahabad HC (2022)

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AFR Reserved on 19.9.2022 Delivered on 20.10.2022

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Court No.-15

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Case :- APPLICATION U/S 482 No. - 8379 of 2017 Applicant :- Roshan Lal Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Amrendra Nath Tripathi,Deepak Kumar Pandey Counsel for Opposite Party :- Govt. Advocate,Prabhat Kumar,Vimal Shukla

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Hon'ble Shree Prakash Singh,J.

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Heard Amrendra Nath Tripathi, learned counsel for the applicant, Sri Prabhat Kumar assisted by Sri Vimal Shukla, learned counsel for the opposite party no.2, Sri Aniruddha Kumar Singh, learned A.G.A.-I for the State, and perused the record.

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Instant application has been filed by the applicant, assailing the order dated 30.6.2016 passed by the Additional District and Sessions Judge, Court No.1, District Balrampur in Criminal Revision No. 36 of 2015. He has further challenged the entire proceeding of Complaint Case No.860 of 2014 pending before the Judicial Magistrate-I, District Balrampur.

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Factual matrix of the case is that the respondent no.2 had filed an application under Section 156 (3) of the Cr.P.C. before the Judicial Magistrate-I, District Balrampur. The respondent no.2 levelled allegation therein that the applicant executed registered agreement to sale on 27^th of September 2013 with respect to Gata No.465 having area 0.202 hectare and Gata No.628 having an area 0.142 hectare situated at Village Mathura, Police Stateion Lalia, District Balrampur. The respondent no.2 has further made allegation that the sale consideration was fixed as Rs.2,40,000/- out of which Rs.2,00,000/- was allegedly given in cash at the time of execution of the said agreement and the remaining amount

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was allegedly agreed to be paid at the time of execution of the sale deed. The allegation is that after the aforesaid agreement, the said plot was soled out to Ms. Shaheena and Mr. Kamruddin. Further allegation is that when the complainant/revisionist went to the house of the applicant on 10^th of April 2014, the applicant, who was sitting with the other accused persons, started abusing and beating her.

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Vide order dated 22^nd of May 2014, the Magistrate treated the aforesaid application as a complaint case and listed it for recording the statement of respondent no.2 under Section 200 of the Cr.P.C. The opposite party no.2 got her statement recorded under Section 200 of the Cr.P.C. Further the statements of other two witnesses were recorded under Section 202 of the Cr.P.C. by the Magistrate.

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After recording the statement of the complainant as well as the witnesses, the Judicial Magistrate-I, vide his order dated 25^th of July 2014, issued process under Section 204 of the Cr.P.C. and summoned the applicant under Sections 323, 504, 506 of the Indian Penal Code. A categorical finding was also recorded by the Magistrate that as per the version of the complaint and the statements made under Sections 200 and 202 Cr.P.C., the case is made out only under Sections 323, 504 and 506 I.P.C. and so far as the allegation with regard to breach of the agreement and execution of the sale deed is concerned, the same was a civil dispute and no criminal offence is made out in that regard.

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Being aggrieved by the summoning order dated 25^th of July 2014, the opposite party no.2 filed a criminal revision before the learned Additional District and Sessions Judge, Court No.1, District Balrampur, which was registered as Criminal Revision No.36 of 2015. The revision was time barred as that was instituted about delay of nine months but the revisional court entertained and allowed the revision, vide order dated 30^th of June of 2016 without condoning the delay in filing the said revision and remanded the matter back for fresh adjudication by the Magistrate concerned.

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Learned counsel for the applicant submits that the revisional court has passed the order on 30^th of June 2016, in most mechanical manner and, while passing the aforesaid order, no finding was recorded with regard to incorrectness or unlawfulness of the order passed by the Magistrate. He also added that the application submitted by the respondent no.2 under Section 156 (3) Cr.P.C. which was registered as a complaint case, is an abuse of process of law. He added that no offence is made out against the applicant.

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Adding his arguments, he submits that in fact the applicant had already instituted a suit being Civil Original Suit No. 297 of 2014 for cancellation of the agreement to sale dated 27.9.2013 before the Civil Judge (Junior Division), Balrampur. The opposite party no.2 had also filed a suit being Civil Original Suit No. 244 of 2014, for cancellation of sale deed executed on 9^th of April 2014 in favour of the other accused, namely, Ms. Saheena, before the Civil Judge (Junior Division), Balrampur. Both the suits are still pending consideration.

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Referring the aforesaid argumetns, he submits that in fact the dispute between the parties is purely of civil nature and prima facie, no offence is made out against the applicant. He further added that Hon’ble Apex Court and the Hon’ble High Courts have held that if the dispute is of civil nature then criminal proceeding is nothing but an abuse of process of law. He submits that since the land in question belongs to the applicant and he had duly executed the sale deed, as such, no question arises with regard to committing cheat or fraud by the applicant and, as such, the finding recorded by the revisional court is perverse and assails illegality.

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In support of his contentions, learned counsel for the applicant has placed reliance on the Judgment of this Court rendered in the case of State of U.P. Vs. Gauri Shanker and others, (1992) 29 ACC 523, and referred paras 10 & 11 of the Judgment, which are being quoted hereunder:-

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“10. As pointed out by the Privy Council in Krishna Swami v. Ramaswami, AIR 1917 PC 179, normally the question of limitation affecting the competence of appeal or revision should be determined at the stage of admission. Similarly in Sundarbai v. Collector of Belgaon, AIR 1918 PC 135 it was observed by the Privy Council that where the memorandum of appeal or revision was presented beyond the prescribed limitation, the proper order which a Judge should pass was let the notices go to the respondents. In the present case if the delay has been condoned on the date of admission or presentation, by the Division Bench and the opposite parties raise the objection about the delay, subsequently it is proper that the party may be heard. In case there was no justification for condonation of delay the application be rejected and in that event, even though that veiw appears to be not quite consistent with the settled principles, the order admitting the appeal or revision could be recalled also. But in the present case we are satisfied that the delay has been satisfactorily explained by the State of U.P. and even if on the date of admission delay was condoned without issuing notices, there was no material illegality or irregularity.

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Matter can be reviewed from another angle. The result of refusing to condone the delay would result in a meritorious matter being thrown out at the very threshold and thereby the cause of justice would be frustrated. As compared to this asssuming the delay is condoned, the maximum that can happen is that a cause would be decided on merits after hearing the parties. In the present revision also by condoning the delay, no injustice was caused to the opposite parties and now when present application was moved, cause for delay has been scrutinised and we are satisfied that it has been correctly condoned. By condoning delay, substantial justice is done. In such matters of considerable Imagnitude, Courts need not be technical. In view of the premises aforesaid we are of the

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considered opinion that the expression sufficient cause under S. 5 of Limitation Act has to be scrutinised in a justice oriented manner and narrow pedantic approach need not be made. Explanation of each day’s delay is not a correct formula in every case. In the present case, delay was explained satisfactorily on behalf of State and it was correctly condoned on the date of admission. Even though better course to be adopted could have been to issue notice to the opposite parties (present applicant) to show cause as to why not the delay be condoned but as the revision was essentially under the Revisionary jurisdiction of the Court which was somewhat similar to inherent jurisdiction which could be exercised even suo motu, even if delay was condoned on the date of admission itself without issuing notices to the opposite parties, we now after hearing opposite parties on the point of condonation of delay are of the view that the delay has correctly been condoned by the Division Bench conseuquently we refreain from recalling the order passed by the Division Bench condoning delay, admitting the revision and issuing process to the opposite parties (present applicant) and accordingly the application moved on behalf of opposite parties to recall the order passed by Division Bench condoning delay, admitting revision and issuing process to the oppoxsite parites is rejected.”

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Learned counsel for the applicant further placed reliance upon the Judgment of the Apex Court rendered in the case of P.K. Choudhary Vs. Commander, 48 BRTF (GREF), (2008) 13 SCC 229 and referred paras 10 and 11 thereof, which are being quoted hereunder:-

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“10. The learned Judicial Magistrate did not apply his mind on the said averments. It did not issue any notice upon the appellant to show cause as to why the delay shall not be condoned. Before condoning the delay the appellant was not heard. In State of

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Maharashtra v. Sharadchandra Vinayak Dongre (1995) 1 SCC 42, this Court held: (SCC p.44, para 5)

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“ 5. In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken congnizanc of the offence in view of the application filed by the prosecution seeking permission of the Court to file a ‘supplementary charge-sheet’ on the basis of an ‘incomplete charge-sheet’ and quashed the order of the CJM dated 21.11.1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous.”

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In view of the aforesaid decision, there cannot be any doubt whatsoever that the appellant was entitled to get an opportunity of being heard before the delay could be condoned.”

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Further contention is that the revisional court has erred while passing the order dated 30.6.2016, as the direction has been given to the parties of the revision to appear before the court of Magistrate, meaning thereby the present applicant has also to appear though the Magistrate has still not applied his mind on the fact that whether any case is made out under Section 419, 420, 467, 468, and 471 of the I.P.C.

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Thus, submissions are that since the order passed by the learned Magistrate issuing summons against the applicant was assailed before the learned revisional court with the delay of about nine months, as such, the revision court was to issue notice to the applicant and the opportunity of hearing should have been afforded to him. He submits that the revisional court neither took care of the delay and latches in filing the revision nor afforded opportunity of hearing to the applicant and, as such, the order of the revisional court assails illegality and infirmity and is liable to be set aside.

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On the other hand, learned counsel for the State has very vehemently opposed the contention aforesaid and submits that in fact the applicant cannot be said to be prospective accused as the order dated 25^th July 2014 passed by the learned Magistrate has been set aside by the Additional Sessions Judge in Revision No.36 of 2015, vide order dated 30^th June 2016. He further submitted that since no process is in existence against the present applicant, as such, he is not a prospective accused and, in such view of the matter, the applicant has no locus to assail, the order passed by the revisional court.

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Sri Prabhat Kumar, learned counsel for the opposite party no. 2 has controverted the contention of the counsel for the applicant and submitted that it is wrong to say that the opposite party no.2 while filing the revision did not file the application for condonation of delay under Section 5 of the Limitation Act 1963. In support of his contention, he has drawn attention of this Court towards the counter affidavit dated 15^th July 2021 and has referred page 7, i.e., the application for condonation of delay appended with the counter affidavit. He further added that the applicant had taken the plea before the learned Magistrate as well as the revisional court regarding the nature of the dispute but both the courts have rejected the same on the ground that the civil and criminal proceedings may run simulataneously if there are allegations disclosing the commencement of congnizable offence.

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Adding his argument, he has submitted that under the revisional jurisdiction suo motu cognizance can be taken by the revisional court and, as such, the issue with regard to the limitation will not attract in this matter. In the instant matter, there is a prima facie case made out against the applicant under Sections 419, 420, 467, 468, 471 of the I.P.C.

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He further submits that in the aforesaid circumstance, as per the settled proposition of law, the issue of limitation would not attract in this matter. Furthermore, the respondent had submitted the application for condonation of delay along with the revision before the revisional court and, as such, there is no illegality or infirmity in the order passed by the revisional court.

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In rejoinder to the arguements, learned counsel appearing for the applicant submits that in fact the summon was issued, vide order dated 25^th of July 2014 and as soon as the summon was issued, the applicant’s case comes under the purview of prospective accused. He further added that the revisional court has recorded finding which is against the applicant. He submits that revisional court did not consider the fact that the civil suits are pending between the parties and further the land in question, which was transferrred through a registered sale deed, is of the present applicant. As such, there can be no charge with regard to cheat or forgery. The order of the revisional court indicates that as if the applicant is also to be prosecuted under Section 420, 467, 468, 471 and 406 of I.P.C. He submits that, in such view of the matter, the applicant is required to be heard before the revisional court and the order passed by the revisional court is required to be tested on the pretext of its illegality and perversity.

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I have considered the rival submissions made by learned counsel for the parties and have also gone through the records available before this Court. The issue, which emerges for consideration before this Court, is that while exercising power under Chapter XXX of Cr.P.C., can the

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revisional Court proceed without condoning the delay of such revision and further without reducing the reasons in writing?

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As per provision 131 of the Schedule of Limitation Act, 1963, the period of ninety days is the limitation for filing of any revision under the Criminal Procedure Code wherein the decree or order or sentence is sought to be revised. The point 131 of the Schedule of Limitation Act 1963 is quoted hereinunder:-

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Description of applications Period of Time from which period Limitation begins to run 131. To any court for the exercise of its Ninety days. The date of the decree or powers of revision under the Code of order or sentence sought Civil Procedure, 1908 (5 of 1908), or to be revised. the Code of Criminal Procedure, 1898 (5 of 1898).

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From bare perusal of aforequoted provision, it is evident that for filing revision, there is 90 days’ limitation period from the date of decree or order or sentence, which is sought to be revised. This Court is of the considered view that there is no deeming provision for condonation of delay and delay could be condoned only when it is pleaded and prayed by the person concerned or the court taking cognizance of the relevant provision of Limitation Act 1963, decides the issue.

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So far as the contention of the learned counsel for the opposite party no.2 with respect to the fact that since the revisional court can exercise the revisional power suo motu and, therefore, in such conditions, the application for condonation of delay or condoning the delay is not mandatory provision. When this Court examined this contention, it is evident that suo motu cognizance does not mean that the court is at liberty to ignore the statutory provision and settled proposition of law. It is well settled law that if a statute provides a specific mode or action of law, the same has to be followed in the manner prescribed.

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This Court is also not unmindful that the criminal law is strict law and, there are far-reaching and serious consequences of the same. This

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Court finds that there is specific provision with respect to limitation for filing of revision against decree or order or sentence and, thus, the same cannot be overlooked while entertaining any revision or passing any order thereon. So far as revision is concerned, prior to deciding the issue of delay and laches, the issuance of notice may not be a compulsory requirement.

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In the instant matter with respect to the application for condonation of delay in filing the revision, it is an admitted fact that there was delay of nine months but there is no single whisper in all over the finding or order passed by the revisional court, which is impugned with this application.

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When this Court further examined the revisional order dated 30.6.2016, it is overt that learned revisional court while remitting back the matter, has erroneously directed the applicant to appear before the court of Magistrate though the order passed by the Magistrate dated 25.7.2014 was set aside. After setting aside the order dated 25.7.2014, the present applicant is neither accused nor prospective accused and, as such, he could not have directed to appear before the Magistrate unless any process is issued and, thus, this Court is of considered opinion that the order dated 30.6.2016 passed by the revisional court is erroneous, unlawful and against the settled proposition of law.

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In view of the aforesaid submissions and discussions, the order dted 30^th June 2016 passed by the Additional District and Sessions Judge is hereby set aside. The matter is remitted back to the revisional court for hearing the matter afresh, in the light of the observations made hereinabove.

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Instant application is allowed accordingly.

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Order Date:- 20.10.2022 Ram Murti

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Digitally signed by RAM MURTI YADAV Date: 2022.10.21 19:15:46 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Roshan Lal v. State of U.P. and Anr.

Case brief

What is this about?

What did the court decide?

Roshan Lal v. State of U.P. and Anr.

Case brief

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