• y'Slngl? IN THE HON'BLE HI6H COURT OF CHJd!AmS6A?H AT BILASPUR IC.G.) CR.M.P. No. J~J7- ofZQll APPLICANT& '^\ y^ ^s^ ^^""^'^•-' Masum Ali Merchant, S/o 6ullu •. Bhai Ratolwala, aged about 61 years, R/o Near Meghdoot Plastic, Behind Sheetta Mandrr;' Neri Roay, Kumharwada, Tahsil <&. Distpict- Bhavnagar (Gujrat) ' ,,' VERSUS RESPONbENT^. ••1. Jafar Abbas, S/o Rasool ^ ' , Mohammed, aged about 39 Years,;R/0 Bairan Bazar, Raipur., District-Raipur (C.6.) ^~* 2. Pankaj Kuma^Mansukhiat.agedabout 48 years, R/o Bakkal No. 1644 Head. Constable, A-Division, Police Station- Bhavnagar (Gujrat) APPLICATEON UNbER SECTION 482'"OF THE CObE OF CRIMINAL PROCEDURE 1973 HIGH COURT OF CHHATTJSGARH ; BiLASPtiR Slngle Bench: Hon'ble Shri Manindra Monan Shrivastava, J. Cr.M.P. N0.177/2011 Masum Ali Merchant Jarar Abbas and another _uNCERSgCTiON 482 OF THE CODE OF CRIMiNAL PROCEDURE Shri Frateek Sharma, counsei for the petitiorier. Shn' Shaskar Psvashi. counssi for r6SDQnd9nt No. Shri Y.C. Sharma, counsel for respondent No.2. St. 21 By this petition under Section 482 of the CrPC, the petitioner pray's for quashing order dated 25/2/2011 passed in unregistered criminai revision (Masum Ali Msrchant vs. Jafar Abbas & anothen • bv SReciai •Judge (Atrocities'i, Raipur as aiso order dated 14/09/09 passed bv the -Judicls.l IVIaQlstrats. 1 Class. RaiDurln CTlrpJnal Csss NQ-685/Q7. 2. On a compiaint fi'led by the respondent a.gainst the petitioner, the Tvia.qjstrate took cognizance vide order dated 14/09/'09 and aiso issued permanent warrant of arrest. Aaaneved by the said order, the petitioner prererrsd a criminai revision before the revisionai Court. As the revision was barreq.oy iimitation, along with revision, an appljcation for condonation or deiay was aiso nied seeKin.q condonation of delay in filina revision. The y^—v,, '^ %t«Mi, 1 •&. ^»s''".,f '"^^issif appiicatlon ror condonation of deiay has been dismissed and the reyislon aiso consequentfy dismissed yide impu.qnea order datea 25/2/2011. s. Learned counsei for the petitEoner submitted that vide order dated 4/uy/uy, tne ivsagistrate IOOK cognizance oy registenng o?tence against tne petltioner ana also issueci permanent warrant QT arrest. 1 ne petitioner came to know about the said order oniv in the month of January, 2011 from his reiatives, Seadina to filing of the revision petition. He submits that the petltioner has Deen sub.iected to crlminat prosecutioR ana the learned Revlslonai Court whiie rejectina petitioner's application for condonation of delav ignored to keep this in mind and adopted a very riaid approach in rejecting.the application for condonation of deiay resuiting in miscarriage of iustice as tne petrtioner nas been deprivea or the opportunitv to assail the correctness and vaiiditv of order taKino coanizance only on the around of deiay in fiiina revision petition. He further submits that the iearned revislon?i Court hastened to the conciusion that the petitioner had knowleaqe or order dated 14/0y/'09, oniy on the basis that eariier the petitioner had preferred CrivIP No.80/08 in which fina! order was passed on 30/09/08. Since order dated 14/09/09 was passed in compiiance of order a'ated 30/U9/08, the iearned revisional Court erroneously presumed that the petitioner had knowiedge of order datea' 14/09/09 ana' therefore, the expSanation is not bonafide. ^' '^.•^y" 4. On the otner hand, iearned counsei ror the complainant submitted that the appllcation ror condonation of deiay has been riahtly reiected bv the revisjonal Court after taking into consideration the estabiished facts and circumstances of the case, particularly that the petitioner had earlier fiied a petition CrRAP No.80/08 before this Court in which the order was passed on 30/09/08. Therefore, it is most improbabie that the petitioner vvouid not know as to what order was passed bv the tviaaistrate arter the directiQn given by the High Court in CrMP No.80/08 filed by the petitioner itseif. He further submits that-from the repiy ("Annexure R-1/3i fiied bv the Detitioner before the Hiffh Court or Gujarat in Speciai Criminal Application No.106/10, it has been stated bv the petjtioner on oath that the Supenntendent or Poiice, Bhavnagar vide Its report dated 2/9/2010 informed that vi/arrant of arrest was iegal one and not foraed, which cleariy shovi/s that the .Detltioner was watchinQ proceedinas and in fulE knowiedfle of order dated 14/09/09. He further submits that from letter dated 12/6/09 ('AnnexL^e R-1/4) also, it is clear that the Detitioner was havina full Knowieaa.e o.f tne day-to-dav events relatina to the disputes between the partles and thererore, it is wnoliy unacceptabie that the petitioner would not Know passina of orcter dated 14/09/09. 5. From the pleadinas which have been piaced on recora', it is clear that the respondents have fiied a complaint against ihe petitioner alleaing .commission of onence under Section 466, 471, 120-B/34 of !PC. initialiy, an order was passed by ine strate on 14/12/06 refusina to take {-:•-: s??s^^s^ r<. 4 cognizance or the complaint but in revision, the revlsiona! Court quasneo the order dated 14/12/06 passed DV the Magistrate and remanded tne case wrth a directlon to hold enauiry. That order was cnallenged DV ti!ina •petition under Section 482 CrPC, registered as CrMP No.80/08. That petition was aiiowed vide order dated 30/09/08 by this Court. Order dated 3/2/07 passed by the revisionai Court and order taking cognizance dated 24/04/07 bv the Chief Judicial MaaiStrate were set aside and the Chief Judiciai Maaistrate was directed to make further enquirv Into the compiaint specificaiiy reiatina. to the point whether the Chief Judicial Magistrate, Bhavnagar has issued warrant in criminal case N0.333/UG or not ana to pass oraer afresh. 6. Later on, the Magistrate passed an oroer on 14/09/uy, again reaistering criminal case aaainst the petitioner ana issuing permanent warrant. The aforesaid order of registration of offence and issuance of permajaent warrant of arrest was chalienged by fiilng criminal revision before the revisional Court. As the revision was barred by limltation, tne application for condonation of delay was aiso filed. In the applicatio.n, it vvas stated that the petitloner came to know about the order dated 14/09/09 only in the month ot' January, 2011 from his relatives ana thereafter, he expeditiously obtained copv by makina appiication on 19/1/2011 and then fiied revision. A perusai of order dated 25/2/2011 passed bv the revlsionai Court shows that the expianation offered by the Detitioner-has been Tound to &e lacKina bonaflde in the liant of tne 'h "ES—-.'f—ifymp -"A circumstances that eariier, the petitioner had filed CrMP No.80/08. The Court has also recorded that the petltioner had knowledae that cognizance miaht be taken against him, e'/en then, he did not take prompt steps to im informed as to whether coflnizance has been tsKen or not upon 'nce on his part. 7. the opinion of this Court, the approach whlch has adopted by iearned revisional Court In reiecting application for conaonation or aeiay Is quite erroneous. it is well settied thata liberal approach is required to be adopted while considering the application for condonatlon of delay in filing appeals and revislons. The petitioner souaht to chauenfle impugnea oraer dated 14/09/09 by which the Macjistrate had taken coflnizance and reflistered orfence aa.ainst the petitioner and had also issued permanent v/arrant. The orders and proceedin.qs sought to be chaiienaed by way of revision subiected the Detitioner to a criminal trial and aiso incarcerated his persogal liberty. innjation of a cnmjnai case andlssuance of warrant of arrest'aaainst a person is a serious matter. Chaiienge to iegality and vaiidrty of such orders and proceedlnas shouia not ordlnariiy be ailowed to be scuttied on the ground that the petltions have been filed with delay. Moreover, it cannot be disputed that in the proceedinas vvhere the impuaned order dated 14/09/09 was passed, the petitioner was not a party. Merely because registration of offence was earlier chaiienged Dy Titing a petitioh before this Court, does not oblige the .oetitioner nor he is expected (*MC"->^"—^—;—^""'S—: """'": |0%>TT2: to vvatch day-to-day proceedings, even though not a party to the proceeasngs. 8. wnat nas been stated in ths application for condonation of delay that the petition.er came to know about the order dated 14/09/09 oniy in ihe month of Januarv, 2011 from his relatives, cannet be said to be unDeiievaDie mereiy because eariier registration of offence v/as challenaed by the petitioner by fiiing a petition before this Court. The Detitioner is not a resident of local area. Takina cumuiative view of ail the circumstances ana ine senous consequences Tlowsn.q from registration of offence and issuance of permanent warrant of arrest against the petitioner, in the opinion ofihis Court, the learned revisional Court adopted unduly restricted approacn in reiecting tne applicatlon for condonation of delay. Denial of opportunity to challen.qe the leaalitv and vardity of order or reaistration of onence and issuance of permanent warrant or arrest has resuited in miscarri.gge of iustice. 9. The order dated 25/02/201 1 cannot be sustained and has to be set asiae. ine petiuon is accorainQly partly ailowed. The delay in riijna revision is condoned. The matter is remanded baek to the iearned r-svtslona! uourt to deciae tne revision on Its own merits without .qoina into the questiofi of limitation. Sd/- Manindra MohanShrivastava Judge Ueept