Shah Nawaj vs State of U.P. and Another

Arvind Kumar Tripathi, J.—Heard learned Counsel for the Applicant, learned AGA for the State and perused the record.

The present Crl. misc. application u/s 482 Code of Criminal Procedure has been filed with the prayer to quash the judgment and order dated 14.3.2011 passed by Additional Sessions Judge, Court No. 3, Mau in Crl. Misc. Case No. 129 of 2010.

Learned Counsel for the Applicant contended that the opposite party No. 2 is wife of Applicant. The proceeding was initiated u/s 125 Code of Criminal Procedure, which was pending since year 2007 and the opposite party No. 2 is getting interim maintenance. In defence when the statement of Applicant was recorded the opportunity of cross examination was given, however, due to one or other reason the counsel of the opposite party No. 2 get the adjournment. On 22.5.2008 last opportunity for cross examination was given, thereafter, again request was made on 27.1.2009 and again the last opportunity was given fixing 30.1.2009. When again on the ground of illness application was given for adjournment of the case then the application was rejected and right of cross examination was closed. Thereafter, the application was moved for recall of the order, however, that application was rejected on the ground that the Magistrate, concerned has no right and power to recall his earlier order. Then on request of opposite party No. 2 the time was allowed for filing criminal revision on payment of cost. However, cost was not deposited. The crl. revision No. 129 of 2010 was preferred and the same was allowed by judgment and order dated 14.3.2011 by the Additional Sessions Judge, Mau and set aside the order dated 6.3.2010 and 30.1.2009 hence revisional court exceeded the jurisdiction setting aside the order of the Magistrate and directing to provide last opportunity for cross examination. The contention of learned Counsel for the Applicant is that since the Magistrate has no power to recall the order hence there is no illegality in the order of the Magistrate and revisional court has committed error by allowing the revision. Hence the impugned order dated 14.3.2011 is liable to be set aside.

Whether the Magistrate has power or not, now when the revisional court by impugned order dated 14.3.2011 provided one last opportunity and a month has already passed after passing that order by which the matter has been remanded. He further submitted that the Applicant used to come from Mumbai. Hence there is harassment by seeking adjournment on one or the other ground. In the interest of justice last opportunity was given by the revisional court hence no interference is required under the discretionary jurisdiction by this Court u/s 482 Code of Criminal Procedure.

He further contended that the lower court has no jurisdiction to recall the order except the High Court u/s 482 Code of Criminal Procedure.

Considering the facts and circumstances, it is directed that though there was delay and the matter is of the year 2007 but the trial court is directed to fix the date giving last opportunity for cross examination to the opposite party No. 2 and to decide the case as expeditiously as possible without unreasonable delay and unnecessary adjournment to either of the parties since the Applicant used to come from Mumbai on each and every date.

Accordingly, this application u/s 482 Code of Criminal Procedure is disposed off.