Madhuri w/o Bhimrao Chauhan v. Bhimrao s/o Hirachand Chauhan
2007-10-08
C.L.PANGARKAR
body2007
DigiLaw.ai
C.L.PANGARKAR,J. ORAL JUDGMENT. 1. Rule. Heard Finally with consent of parties. 2. This is an application under Section 482 of the Code of Criminal Procedure by original complainant. 3. The complainant is a legally wedded wife of Non-applicant no.1, their marriage having been solemnized in the year 1997. Due to the differences between the two, N.A.no.1 had instituted a petition for divorce. The petition was dismissed. Even the appeal preferred before the High court was also dismissed. Respondent no.1 thereafter entered into a second marriage with respondent no.2. The applicant, therefore, reported the matter to the police. The police did not take any action. The applicant, therefore, instituted a criminal complaint under Section 494 of Indian Penal Code against both respondents. 4. The Magistrate called a report under Section 202 of Cr.P.Code and upon consideration of the report, dismissed the complaint. 5. Being aggrieved by that order of dismissal of the complaint on 29/2/2003, the complainant preferred a revision application before the court of Sessions. There was a delay in preferring the application for revision. Hence, an application for condonation of delay was filed. That application for condonation of delay was rejected by the court of Sessions on 7th February, 2007. Hence, this application under Section 482 of the Code of Criminal Procedure by the original complainant. 6. The complainant alleged in the application for delay condonation as follows - She alleged that the revision should have been filed within 90 days from the date of the order but the applicant was not aware of the order dated 29/12/2003 till 10th February, 204 as she was ill. She also alleged that she applied for obtaining certified copy on 8/1/2004 and the copy was received on 1/3/2004. It is alleged further that after receipt of the certified copy, the applicant could not contact her lawyer till 15/7/2004 for filing the revision and hence the revision is filed on 16/7/2004. 7. The respondents resisted this application and contended that there was no sufficient cause for not preferring the revision within time. The learned Sessions Judge, after hearing the parties found that there was no sufficient cause and the delay was not explained. Holding so, he rejected the application and being aggrieved by that this application under Section 482 of Cr.P.Code is preferred. 8. I have heard Smt.T.D.Khade, Advocate for the applicant and Shri D.B.Wathore, Advocate for respondent no.1. 9.
The learned Sessions Judge, after hearing the parties found that there was no sufficient cause and the delay was not explained. Holding so, he rejected the application and being aggrieved by that this application under Section 482 of Cr.P.Code is preferred. 8. I have heard Smt.T.D.Khade, Advocate for the applicant and Shri D.B.Wathore, Advocate for respondent no.1. 9. There is no doubt that the court should ordinarily condone the delay and decide every matter on merits. But this can be done when there are bonafides. In the recent decision, reported in (2005)3 SCC 752 (State of Nanaland ..vs.. Lipok AO and others), the Supreme Court has observed thus- .Proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. What constitutes sufficient cause cannot be laid down by hard-and-fast rules.. 10. The application filed by the applicant virtually does not disclose any ground leave aside sufficient cause for condonation of delay. On the other hand, patently false statements are made on oath in the application. It is stated in the application that the applicant was not aware of the order passed on 29/12/2003 as she was ill till 10th February, 2004. The applicant claims that she was ill since before 29/12/2003 till 10th February, 2004. She has not filed any certificate of Medical Officer. The applicant is admittedly a Government servant. She could have produced a leave account that she was ill and therefore did did not even attend the office. She chooses not to file either the medical certificate or her leave account. An inference, therefore, has to be drawn that she is not producing the said medical certificate because she must have attended the office. Had she not really attended the office, there was no difficulty for her to produce either of these two before the court. The applicant had filed one Darkhast i.e. Execution Application No.40/2003 before the family court and the Roznama maintained in that case shows that the applicant had attended the family court on 12/12/2003 and 15/1/2004. This disproves her contention. 11.
The applicant had filed one Darkhast i.e. Execution Application No.40/2003 before the family court and the Roznama maintained in that case shows that the applicant had attended the family court on 12/12/2003 and 15/1/2004. This disproves her contention. 11. Not only this, in application for condonation of delay though it is contended that she was ill till 10/2/2004, the application for obtaining the certified copy was made on 8/1/2004 and this itself once again goes to show that her statement that she was ill till 10/2/2004 and therefore could not attend the court and contact the lawyer is proved to be false. 12. It appears further that the certified copy was received on 1/3/2004 and this application is filed on 29/7/2004. There is nothing in the application as to what prevented the applicant from filing it and from contacting her lawyer from 1/3/2004 to 28/7/2004 i.e. almost for three months. What is mentioned in it is that she could not approach the counsel, but no cause whatsoever is mentioned in the application for her inability to contact the counsel. This statement that she could not meet her lawyer during his period is once again proved to be false by the other documents. The non-applicant has filed criminal complaint No. 69/2002 against the applicant. The Roznama of that case shows that the applicant appeared before the Magistrate in that criminal case on 24/6/2004 and offered the bail. Besides this, as stated earlier in R.D.No.40/2003, the applicant had appeared before the family court on 17/2/2004, 6/3/2004, 24/3/2004, 12/4/2004, 15/3/2004, 9/6/2004 and 28/6/2004. Thus, almost in every month the applicant appeared before the family court and she even filed an affidavit on 6/2/2004 in the court. It cannot, therefore, lie in her mouth that she could not contact her lawyer from 1/3/2004 onwards. In fact, it appears that the applicant took decision to file the revision in July, 2004 only when she received summons in Criminal Case No.69 of 2002 filed by respondent no.1. She appeared in that criminal case on 24/6/2004 and within fifteen days this revision was filed. This clearly, therefore, shows that she never intended to file revision had she not received the summons in criminal case. The application does not disclose any ground leave alone sufficient ground.
She appeared in that criminal case on 24/6/2004 and within fifteen days this revision was filed. This clearly, therefore, shows that she never intended to file revision had she not received the summons in criminal case. The application does not disclose any ground leave alone sufficient ground. Ordinarily, the court would have condoned the delay but the above circumstances show utter callousness on the part of the applicant and no will at all to prefer the revision. In view of this, I do not find any substance in the application. It is dismissed.