- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.2502 OF 2008 WRIT PETITION NO.2502 OF 2008 WRIT PETITION NO.2502 OF 2008 Mr.V.Tirupathi ...Petitioner vs. State of Maharashtra & Anr. ...Respondents Mr.F.Sayyed i/b M/s.Manilal Kher Ambalal & co. for the petitioner Mr.R.R.Arolkar for Respondent no.2 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 29,2009 : APRIL 29,2009 : APRIL 29,2009 P.C.: P.C.: P.C.: 1. Heard learned counsel for the petitioners and the learned counsel for the second respondent. The petitioner has been arraigned as 7th accused in the complaint filed by the second respondent. The petitioner filed a revision application before the Sessions Court for challenging the order passed by the learned Magistrate of issue of process on the complaint filed by the second respondent. There was a delay in filing the revision application. Initially, the revision application was dismissed by the Sessions Court on the ground that the revision application was barred by limitation. The said order was set aside by this court and the petitioner was permitted to apply for condonation of delay. Accordingly, an application for condonation of delay was filed by the petitioner. The petitioner filed an affidavit in support of the application for condonation of delay. The occasion for filing the present petition arose as according to the - 2 - petitioner the learned Sessions Court orally directed the petitioner to remain present for cross examination on the basis of the said affidavit. 2. The learned counsel for the second respondent stated that there is no order in writing passed by the Sessions Court directing the petitioner to appear for cross examination. He however, submits that the second respondent wants to cross examine the petitioner. 3. Perusal of the affidavit filed by the petitioner shows that it is not affidavit in lieu examination in chief but it is an affidavit filed in support of the application for condonation of delay. As of today, there is no order passed by the Sessions Court directing the parties to lead evidence for purposes of hearing of the application for condonation of delay. The Application is for condonation of delay in filing the revision application. The consistent practice followed in the courts in Maharashtra is such applications for condonation of delay in filing appeals/revisions are normally decided on the basis of pleadings of the parties and only in exceptional cases that parties are required to lead evidence at the time hearing of such application. 4. As of today, the court has not directed the parties to adduce evidence. As pointed out earlier, the affidavit filed - 3 - by the petitioner is not an affidavit in lieu of examination in chief but an affidavit in support of the averments made for condonation of delay. On the basis of the said affidavit, the petitioner cannot be called upon to remain present before the Court for cross examination in as much as there is no examination in chief of the petitioner. In any event, the Sessions Court could not have issued oral direction directing the petitioner to remain present for cross examination. 5. Considering all the aforesaid aspects, as of today, no case has been made out for directing the petitioner to remain present before the Sessions Court for cross examination. Hence, there is no occasion for the Sessions Court to issue any such oral direction. Even the learned counsel appearing for the 2nd respondent stated that there is no such oral direction issued. 6. The Writ Petition is disposed of accordingly. JUDGE JUDGE JUDGE