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CASE NO.: Appeal (crl.)  150 of 2007

PETITIONER: Ram Abhilakh                                                    ..Appellant

RESPONDENT: State of U.P. & Ors.                                            ..Respondents

DATE OF JUDGMENT: 02/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (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

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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.