Allahabad High Court
Yogendra Sagar vs State Of U.P. & Another on 18 July, 2012
Bench: Arun Tandon, Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 53
Case :- CRIMINAL MISC. WRIT PETITION No. - 13639 of 2010
Petitioner :- Yogendra Sagar
Respondent :- State Of U.P. & Another
Petitioner Counsel :- Dileep Kumar,Rajesh Mishra
Respondent Counsel :- Govt. Advocate,Ashwani Kr. Awasthi,Bheshaj Puri,Manish Tewari,R.P. Pandey
Hon'ble Arun Tandon,J.
Hon'ble Ramesh Sinha,J.
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.
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.
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.
We have examined the order of the Session Judge and find that he has adopted an hyper technical attitude in rejecting the Section 5 application.
It has to remembered that all courts of law are constituted for furtherance of interest of substantial justice and not to obstruct the same on technicalities. When substantial justice and technicalities are pitted against each other, the interest of substantial justice must prevail. An order on merit is always welcome viz.a vis. an order on technicalities.(Ref. Ghanshyam Das & Others Vs. Dominion of India & Others; 1984 (3) SCC, 46).
When judged in light of the law so declared we have no hesitation to record that the order dated 6.7.2010 is more technical than required.
From the records we find that the affidavit filed in support of Section 5 application wherein on oath it was stated that the revisionist obtained knowledge of the summoning order only on 21.12.2009, as also the affidavit of the revisionist of the effect that he was at Lucknow during the relevant period had gone un-controverted. There being no challenge to the statement so made on oath the Court could not have easily brush aside the same on the plea that the revisionist could not disclose as to how he had received the knowledge of the order on 21.12.2009. Un-controverted evidence had to be accepted.
We are, therefore, of the opinion that the order dated 06.07.2010 cannot be legally sustained. It is hereby quashed.
Normally we would remanded the matter to the revisional court for re-consideration of the Section 5 application but in the facts of the case, as noticed above, we find that the statement made on oath by the petitioner had come un-controverted. He has successfully explained the reasons for the delay in filing of the revision. We, hold that Section 5 application made by the petitioner, deserves to be granted. It is, accordingly allowed. Revision filed by the petitioner shall be treated to be within time.
It may be recorded that Sri R.P.Pandey, learned counsel on behalf of complainant as well as A.G.A. on behalf of State, have agreed that Section 5 application may be disposed of by this Court itself and that they have no objection to such a decision being taken by the High Court.
We direct that the Session Judge, Badaun shall proceed to hear and decide the revision on merits without granting any un-necessary adjournment to either of the parties. The revision shall be decided by means of reasoned order within four weeks from the date a certified copy of this order is filed before the Revisional Court. The parties shall produce the certified copy of this order before the Court concerned within three weeks from today.
In order to keep the record straight it may also be noticed that counsel for the respondent No.2 has pointed out that against the summoning order dated 18.8.2009 of the Magistrate, an application under Section 482 was filed by one of the co-accused namely Tejendra Sagar being Criminal Misc.Application No.26758 of 2009. The same has been dismissed by the High Court on 21.10.2009. Against the order of the High Court, Tejendra Sagar filed Special Leave to Appeal before the Apex Court being Special Leave to Appeal (Crl) No.8717 of 2009 which has been dismissed by the Apex Court on 30.11.2009.
With the aforesaid directions the writ petition is allowed.
Interim order, if any, stands discharged.
It is clarified that we have not expressed any opinion on merits of summoning order dated 18.8.2009 passed by the Magistrate.
Order Date :- 18.7.2012
SKD
