Ram Abhilakh Vs. State of U.P. & Ors. [2007] Insc 98 (2
February 2007)
Dr. ARIJIT PASAYAT & S.H. KAPADIA
(Arising out of SLP (Crl.) No. 5182 of 2006) ARIJIT PASAYAT, J.
Leave granted.
Appellant challenged the order passed by a learned Single Judge dismissing
the revision petition filed by the appellant.
Detailed reference to the factual aspect is unnecessary in view of the
limited nature of the controversy.
Marriage between the appellant and respondent No. 2 was solemnized in June
1980. Differences cropped up between the parties and various cases were
instituted.
Grievance was made by the respondent No. 2 that appellant had married for a
second time though his marriage with respondent No.2 was subsisting and thereby
he committed offence punishable under Section 494 of the Indian Penal Code,
1860 (in short the 'IPC'). Learned First Additional Chief Judicial Magistrate, Raebareli
held that the appellant was guilty. An appeal was preferred before the District
and Sessions Judge Raebareli. By order dated 29.9.1999 the appeal was dismissed
and the judgment of the trial court was affirmed. A Revision Petition under
Section 397 of the Code of Criminal Procedure, 1973 (in short the 'Code') was
filed before the Allahabad High Court, Lucknow Bench. By the impugned judgment
learned Single Judge of the High Court dismissed the Criminal Revision holding
that concurrent findings had been recorded by the courts below and therefore no
interference was called for. The application was disposed of in the absence of
appellant's counsel. An application to recall the order was filed on the ground
that the matter could not have been decided ex parte. The review application
was also dismissed on the ground that there was belated approach for recalling
the order.
In support of the appeal, learned counsel for the appellant submitted that
on 30.1.2004 because of circumstances beyond control there was no appearance
when the matter was taken up. The appellant has been pursuing the remedy
diligently for nearly five years and without taking note of the various
difficulties due to which the appellant's counsel could not appear, the
Revision Petition should not have been dismissed.
On 29.9.2006 notice was issued, limited to the question as to why the High
Court should not re-hear the matter since the High Court dismissed the Revision
Petition without hearing the appellant. There is no appearance on behalf of the
respondent.
There is no dispute that prior to the date of disposal i.e.
30.1.2004 the appellant was diligently pursuing the remedy.
The appellant had also pointed out circumstances due to which the
appellant's counsel could not appear on the date fixed. The plea has not been
disbelieved.
Considering the background facts as highlighted above it is clear that the
appellant has always been diligently pursuing the case. It is not the case of
the respondent No.2 that the appellant was in any manner responsible for delay
in the proceedings.
Above being the position, we set aside the orders of the High Court dated
30.1.2004, 17.4.2006. The High Court shall hear the matter on merits. To avoid
unnecessary delay, let the parties appear without further notice on the 9th March, 2007 so that the concerned Bench can fix a date for hearing of the matter.
Learned Chief Justice of the High Court is requested to pass necessary orders
as to before which Bench the matter shall be listed.
Appeal is allowed to the aforesaid extent.
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