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Ramchandra Aba Raut Vs. Suman Ramchandra Raut and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 140 of 1985
Judge
Reported in1986(1)BomCR123
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125(3) and 401
AppellantRamchandra Aba Raut
RespondentSuman Ramchandra Raut and anr.
Appellant AdvocateAjit P. Shah, Adv.;Y.V. Patil, P.P., for respondent No. 2
Respondent AdvocateP.M. Mengane, for respondent No. 1
Excerpt:
.....challenged dismissal of revision application filed beyond 90 days - petitioner contended in revision application that mandatory provision of section 125 (3) not followed before issuing recovery warrant - grievance of petitioner was that he was not heard before recovery warrant was issued - limitation starts on day when recovery warrant served on petitioner and not when recovery warrant issued - held, revision application filed by petitioner was in time. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration..........125(3) of the criminal procedure code. the revision application, however, was dismissed by the learned sessions judge at solapur on the ground that the said revision application was filed beyond 90 days. there was delay of four days in filing the revision application.3. mr. ajit p. shah, the learned advocate for the petitioner has urged before me that although the recovery warrant was issued against the petitioner on 7th january, 1984, the said warrant was issued without notice to the petitioner and that the said recovery warrant was served on the petitioner on 19th march, 1984, on which day the petitioner for the first time had knowledge of such order, namely, of recovery warrant having been issued against the petitioner. it is submitted by mr. shah that the period of limitation of.....
Judgment:

R.R. Jahagirdar, J.

1. The brief facts leading to the present criminal writ petition are as follows :

On 18th May, 1982, the Judicial Magistrate, First Class, Madha has passed an order of maintenance against the petitioner (husband) under section 125 of the Criminal Procedure Code. In a revision application filed by the first respondent (wife) in the Court of Sessions Judge at Solapur for enhancement of amount of maintenance, the dispute was amicably settled between the petitioner and respondent No. 1 by purshis dated 30th October, 1982. On 7th January, 1984, the first respondent (wife) filed an application in the Court of the Judicial Magistrate, First Class, Madha for the execution of the maintenance order dated 18th May, 1982 against the petitioner. On the same day, namely, on 7th January, 1984, the Judicial Magistrate, First Class, Madha issued a recovery warrant against the petitioner. The said recovery warrant was served on the petitioner on 19th March, 1984. The petitioner with a view to file criminal revision application before Sessions Judge at Solapur made an application for certified copy on 7th April, 1984, which was received by the petitioner on 9th April, 1984 and on 11th April, 1984, the petitioner filed the revision application on the Court of the Sessions Judge, at Solapur.

2. The learned II Additional Sessions Judge at Solapur has accepted the submission of the petitioner that the learned Magistrate was in error in issuing the recovery warrant against the petitioner on 7th January, 1984 and is in clear violation of the provision of section 125(3) of the Criminal Procedure Code. The revision application, however, was dismissed by the learned Sessions Judge at Solapur on the ground that the said revision application was filed beyond 90 days. There was delay of four days in filing the revision application.

3. Mr. Ajit P. Shah, the learned Advocate for the petitioner has urged before me that although the recovery warrant was issued against the petitioner on 7th January, 1984, the said warrant was issued without notice to the petitioner and that the said recovery warrant was served on the petitioner on 19th March, 1984, on which day the petitioner for the first time had knowledge of such order, namely, of recovery warrant having been issued against the petitioner. It is submitted by Mr. Shah that the period of limitation of 90 days would start from the day on which the petitioner had knowledge of the recovery warrant, namely, on the day on which it was served i.e. on 19th March, 1984. If the period of 90 days is computed from 19th March, 1984, then the revision application filed by the petitioner in the Court of the learned II Additional Sessions Judge, Solapur on 11th April, 1984 is clearly within the limitation. In support of his submission that the limitation would start from the date of the knowledge, reliance is placed by Mr. Shah on the case of Zohra Begum alias Aysha Begum v. Mohamed Ghouse Qadri Qadeeri and another, : AIR1966AP50 . In the case of Zohra Begum alias Aysha Begum the Andhra Pradesh High Court was considering the starting point of limitation for the purpose of setting aside the ex parte order of maintenance. It was held that the limitation for setting aside begins from the date of the knowledge of the order to the aggrieved party and not from the date of the passing of the order. Andhra Pradesh High Court has followed the decision of the Supreme Court in the case of Harish Chandra v. Deputy Land Acquisition Officer, : [1962]1SCR676

'Where the rights of a person are affected by an order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned.'

4. Turning to the facts of the present case, although the recovery warrant dated 7th January, 1984 was issued, it was served on 19th March, 1984 on the petitioner on which day the petitioner is deemed to have the knowledge of the passing of the order of 7th January, 1984. If, therefore, as held by the Andhra Pradesh High Court in the above said case, the period of limitation would start from the date of the knowledge, the revision application filed by the petitioner on 11th April, 1984 in the Court of the II Additional Sessions Judge, Solapur is clearly within limitation. All that the petitioner has contended in the revision application was that the Magistrate should have followed the mandatory provisions of section 125(3) of the Code of Criminal Procedure before issuing the recovery warrant. In other words, it is the grievance of the petitioner that he was not heard before the recovery warrant was issued. Certainly, by a contention like this no prejudice can be caused to the wife. Assuming for the sake of the argument that the limitation would start from the date of the issuance of the recovery warrant namely, from 7th January, 1984, even, according to the learned Sessions Judge there is delay of four days, which has been satisfactorily accounted for by the petitioner before me. However, the discussion in the preceding paragraphs of my judgment clearly indicates that the limitation would start not from 7th January, 1984 when the recovery warrant was issued, but would start from 19th March, 1984 on which day the petitioner was served with the recovery warrant and that this being the position, the revision application filed by the petitioner in the Court of Sessions Judge on 11th April, 1984 is clearly in time. The submission of the learned Advocate for the first respondent (wife) that the learned II Additional Sessions Judge was justified in dismissing the revision application filed by the petitioner-on-the ground of limitation for the reasons stated in the preceding paragraphs of my judgment, cannot be accepted.

5. After, therefore, considering the submissions made by Mr. Ajit P. Shah, the learned Advocate for the petitioner and Mr. P.M. Mongane the learned Advocate for the first respondent and for the reasons stated in the proceeding paragraphs of my judgment, the order dated 26th December, 1984 passed by the learned Additional Sessions Judge is set aside. The rule is made absolute.


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