Bombay High Court
Raju S/O Laxmanrao Nighut vs Sau. Archana W/O Raju Nighut on 29 June, 2017
Bench: V.M. Deshpande
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.818 OF 2016
Raju s/o Laxmanrao Nighut,
Aged about 46 years, Occupation Nil,
R/o Kawatha, Tahsil Kamptee,
District Nagpur. ..... Applicant.
:: VERSUS ::
Sau. Archana w/o Raju Nighut,
Aged about 35 years, Occupation Labour,
R/o C/o Tejram Pande, At Post Khubala,
Tahsil Saoner, District Nagpur. ..... Non-applicant.
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Shri V.D. Muley, Counsel for the applicant.
Shri A.A. Pannase, Counsel for the non-applicant
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CORAM : V.M. DESHPANDE, J.
DATE : JUNE 29, 2017.
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard
finally by consent of learned counsel Shri V.D. Muley for the
applicant and learned counsel Shri A.A. Pannase for the non-
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applicant.
2. The cause for filing the present application under
Section 482 of the Code of Criminal Procedure for the
applicant is, rejection of his application under Section 5 of the
Limitations Act, 1963 for preferring the criminal revision
before learned Sessions Judge.
3. An application under Section 125 of the Code of
Criminal Procedure was filed by non-applicant/wife against
the present applicant. The said proceedings were decided
ex parte by learned Magistrate vide judgment and order dated
17.1.2015 by which learned Magistrate directed the present
applicant to pay monthly allowance of Rs.3,000/- to the non-
applicant/wife by way of maintenance.
4. Feeling aggrieved by the said ex parte order, a
revision was filed before learned Sessions Judge. However,
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since the revision was barred by limitations by 237 days, an
application for condonation of delay was filed. The said
application was registered as Misc. Criminal Application
No.3097 of 2015 and learned Sessions Judge, vide order dated
3.8.2016, rejected the said application.
5. I have heard learned counsel Shri V.D. Muley for
the applicant and learned counsel Shri A.A. Pannase for the
non-applicant.
6. Admittedly, main proceedings under Section 125
of the Code of Criminal Procedure were decided ex parte
against the present applicant. This is not a stage where the
Court should record a finding whether learned Magistrate
was right in proceeding against the present applicant
ex parte or not. That issue will be decided in the criminal
revision.
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7. The cause for non-filing of the criminal revision
within a stipulated period, according to the applicant is,
initially he was not aware of passing of ex parte order and
subsequently after getting the certified copy, he could not file
the criminal revision within time. Normally, a litigant should
not be denied justice on the ground of technicalities.
8. No doubt true, that the proceedings are not filed
within a period of limitations. The right is accrued in favour
of aforesaid to execute the order. However, looking to the
fact that the matter arises out maintenance proceedings, I feel
the Revisional Court ought to have considered the application
sympathetically and ought to have condoned the delay by
imposing some costs on the applicant.
Hence, I pass the following order:
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ORDER
The criminal application is allowed.
ii) Misc. Criminal Application No.3097 of 2015 filed by
the present applicant before learned Additional
Sessions Judge, Nagpur is hereby allowed.
iii) Delay of 237 days in preferring the criminal
revision challenging order passed by learned Judicial
Magistrate First Class, Saoner is hereby condoned.
iv) Learned Sessions Judge to register the criminal
revision and decide the same in accordance with law
within a period of 3 months (three months) from the
day of appearance of the parties.
v) Both the parties are directed to appear before
learned Sessions Judge, Nagpur on 10.7.2017.
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vi) The applicant shall pay costs of Rs.5,000/- (rupees
five thousand only) in the Court of learned Sessions
Judge, Nagpur at the time of appearance of the
applicant.
vii) If the costs are deposited by the applicant on the
day of appearance, learned Sessions Judge to proceed
with the matter.
viii) On depositing the amount of Rs.5,000/-, the
present non-applicant will be entitled to withdraw
the said amount and the said amount will not be
adjusted in the amount of maintenance.
Rule is made absolute. However, there shall be no
order as to costs.
JUDGE
!! BRW !!
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