[Cites 4, Cited by 0]

Bombay High Court

Kalyani Ankush Mahalle vs Seema Manish Fule And Another on 15 December, 2025

2025:BHC-NAG:14211




               Judgment                                                Cr.WP-363-2025

                                                1


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                               NAGPUR BENCH : NAGPUR.


                          CRIMINAL WRIT PETITION NO. 363 OF 2025

                                               ...
                     Sau. Kalyani Ankush Mahalle,
                     Aged 30 years, Occ. Housewife,
                     R/o. C/o. Shri. Rajendra Dadaji Ladke,
                     Vitthal Mandir Ward, Chandrapur,
                     Tah. & Dist. Chandrapur.
                                                         ...    PETITIONER


                                      --VERSUS--


               1] Sau Seema Manish Fule,
                  Aged 40 years, Occ. Housewife,

               2] Shri. Manish Shankarrao Fule,
                  Aged 45 years, Occ. Service,
                  Both R/o. Khandelwar Layout,
                  Near Sai Baba Mandir,
                  Behind Tahsil Office, Narkhed,
                  Tah. Narkhed, Dist. Nagpur.

               3] State of Maharashtra,
                  Through Police Station Officer,
                  Chandrapur, Police Station-Chandrapur,
                  Dist. Chandrapur.
                                                         ...   RESPONDENTS

               PIYUSH MAHAJAN
 Judgment                                                                Cr.WP-363-2025

                                      2

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           Mr. A.M. Chandekar, Advocate for the Petitioner.
  Mr. A.A. Dhawas, Advocate for the Respondent Nos.1 and 2.
      Mr. G.S. Umale, A.P.P. for the Respondent No.3/State.

 -----------------------------------------------------------------------------
                 CORAM : M.M. NERLIKAR, J.
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            Judgment is reserved on 08/12/2025.
        Judgment is pronounced on 15/12/2025.
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                             JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

with the consent of learned counsel for the parties.

2. By way of present petition, the petitioner is

challenging the order dated 12/03/2025 passed below Exh.-1

in Misc. Criminal Application No. 88/2024, wherein the learned

Sessions Judge, Chandrapur, rejected the application for

condonation of delay preferred by the petitioner.

3. Brief facts of the case are that, the present petitioner

PIYUSH MAHAJAN Judgment Cr.WP-363-2025

has lodged F.I.R as Crime No. 817/2020 on 05/11/2020 for the

offence punishable under Sections 498-A, 504 read with

Section 34 of the Indian Penal Code, 1860, against the husband

and his family members. After completion of investigation,

charge-sheet was filed on 31/12/2020. During pendency of

trial, discharge application under Section 239 of Code of

Criminal Procedure, 1973, was filed by the husband and his

parents. The said application was partly allowed below Exh.31

dated 15/02/2024 in R.C.C. No.131/2021, wherein the

respondent Nos.1 and 2 came to be discharged. Against the said

order, the petitioner preferred Criminal Revision Application

before the Sessions Court along with application for

condonation of delay of 4 months and 16 days. However, the

learned Sessions Court, Chandrapur, rejected the said

application. Against that order, the petitioner preferred the

present writ petition.

4. The learned counsel appearing for the petitioner

PIYUSH MAHAJAN Judgment Cr.WP-363-2025

submits that the Revisional Court ought to have granted an

opportunity to lead evidence, however, without there being any

opportunity to lead the evidence, the Court has rejected the

application and passed the impugned order. The delay has

occurred due to the fact that the petitioner intended to file the

an appeal against the said order before the Bombay High Court,

Bench at Nagpur. The petition to that effect was also prepared

and sworn in on 22/04/2024. Not only that, a presentation

form to that effect was also filled in. However, later on, it

transpired that the said appeal would not be maintainable, and

against the order of the learned Judicial Magistrate First Class,

Chandrapur, dated 15/02/2024, the Revision would lie,

therefore, the delay was caused. He further submits that before

rejecting the application, the Sessions Court ought to have

granted him an opportunity to lead evidence, however,

opportunity was not granted, and therefore, submits that the

matter be remanded back for fresh consideration and

opportunity be granted to lead the evidence.


PIYUSH MAHAJAN
 Judgment                                                     Cr.WP-363-2025

5. On the other hand, the learned counsel appearing

for the respondent vehemently submits that a detailed order

was passed by the learned Sessions Judge, Chandrapur. In fact,

the petitioner tried to mislead the Court as no petition was filed

before the High Court. The petitioner is an advocate and she

was well aware of what remedy is to be pursued. There is no

explanation so far as delay of 4 months and 16 days is

concerned, and no sufficient cause has been shown in the

application. He further submits that there was no stamp

number or filing number mentioned in the presentation form to

show that she has filed the appeal before the High Court on

25/04/2024. The respondent has applied under the Right to

Information Act seeking information in respect of filing of an

appeal by the petitioner, and the information was received that

the petitioner has not preferred any appeal or proceedings

before the High Court, and therefore, he submits that petitioner

failed to make out a case for condonation of delay, and

therefore, prayed to reject the petition.


PIYUSH MAHAJAN
 Judgment                                                     Cr.WP-363-2025

6. I have heard the learned counsel for the petitioner

and the learned counsel for the respondent. Admittedly, the

application for condonation of delay was rejected by the

Revisional Court by observing that the petitioner had neither

filed an appeal before the High Court within the limitation

period, nor filed the appeal before the Sessions Court within the

prescribed period. Presentation form filed by the appellant does

not bear the compliance which the concerned clerk or the

appellate authorities were required to do to show that at any

point of time it was presented before the High Court. Further, it

was observed that the petitioner has not shown due diligence

and even after getting the knowledge in September, 2024, has

not calculated the delay properly, and therefore, on these

ground, the application was rejected.

7. It appears from the record that the delay of 4 months

and 16 days was occurred in preferring the Revision petition

before the Sessions Court. Initially, the application filed by

PIYUSH MAHAJAN Judgment Cr.WP-363-2025

respondents herein, who is original accused, for discharge was

allowed on 15/02/2024. The copies were obtained on

22/02/2024, and the affidavit was sworn in on 22/04/2024 for

filing the appeal, however, it appears that the appeal was not

filed before the High Court, and accordingly, the Revision

Petition was filed on 01/10/2024. It appears from the record

that initially the petitioner intended to file an appeal before the

High Court, which can be gathered from the appeal memo,

wherein stamp of solemn affirmation is appearing, and the date

mentioned is written as 22/04/2024. The said stamp is

alongwith seal of notary. If this appeal memo is to be

considered, then naturally there is force in the arguments on

behalf of the petitioner that the trial Court ought to have

granted an opportunity to lead evidence. However, it appears

that wrong arguments were advanced on behalf of the

petitioner that she has filed the appeal before the Bombay High

Court, Bench at Nagpur, however, the fact remains that the

appeal was not filed before the High Court. Even it appears that

PIYUSH MAHAJAN Judgment Cr.WP-363-2025

it was only prepared, and the affidavit was merely sworn in on

22/04/2024.

8. The Petitioner has relied on the judgment of this

Court in the case of Smt. Kusumbai Kachruji Sukhdeve and

Another VS. Bhaurao Medhoji Meshram and Another, (Writ

Petition No.282/2012), decided on 08/01/2013, wherein this

Court in Para No.3 has held as under:

"3] It is not in dispute that the appellate Court has not called upon the parties to lead evidence on the question of condonation of delay. The court should have fixed the matter for leading the evidence on the application for condonation of delay. Without permitting the parties to lead evidence, the application has been decided. In view of this, the order impugned cannot be sustained. The same needs to be quashed and set aside."

Admittedly, Section 5 is applicable to both Civil and

Criminal Proceedings. Though, the judgment referred by the

petitioner pertains to the civil side, however, the same analogy

PIYUSH MAHAJAN Judgment Cr.WP-363-2025

would be applicable, as Section 5 is also relevant to criminal

matters. Therefore, considering the above facts and

circumstances, it would be in the interest of justice to permit

the petitioner to lead evidence in support of her contention.

The Court ought to have fixed the matter for leading evidence

on application for condonation of delay. Failure on the part of

the learned Sessions Judge would amount to denial of the

opportunity of hearing. Hence, the following order:

ORDER

(i) The Criminal Writ Petition is partly allowed;

(ii) The impugned order dated 12/03/2025

passed below Exh.-1, in Misc. Criminal Application No.

88/2024, by the learned Sessions Judge, Chandrapur,

is quashed and set aside;

(iii) The matter is remanded back for fresh

consideration on the application for condonation of

delay;


           (iv)          The parties are at liberty to lead the

PIYUSH MAHAJAN
 Judgment                                                     Cr.WP-363-2025