Point of Law: Bar of Section 435(3) of the Cr.P.C. is, therefore, effectively attracted and the bar cannot be circumvented by subterfuge of treating the revision petition as directed against the Sessions Judge’s order.

JUDGMENT :

SANJAY DHAR, J.

1. Petitioner has challenged order dated 04.08.2018 passed by Principal Sessions Judge, Budgam, whereby learned Sessions Judge has dismissed the revision petition filed by the petitioner against the order dated 15.02.2017 passed by Judicial Magistrate, 1st Class, Cherar-i-Sharief. Vide the aforesaid order dated 15.02.2017, the learned Magistrate has dismissed the petitioner’s application for setting aside ex-parte order of maintenance as also the application for staying the operation of aforesaid ex-parte order passed in proceedings under Section 488 of the J&K Code of Criminal Procedure. Compensatory costs of Rs. 30,000/- have also been imposed by learned Magistrate upon the petitioner vide the aforesaid order.

2. The facts giving rise to the filing of this revision petition are that respondent, who claims to be the wife of petitioner, filed proceedings under Section 488 of J&K Cr.P.C. before Judicial Magistrate 1st Class, Cherar-i-Sharief, claiming maintenance from him. It appears that petitioner stopped appearing before the learned Magistrate, as a result whereof ex-parte proceedings were initiated against him on 19.02.2014 and ultimately on 15.04.2015, the petition came to be disposed of by the Magistrate directing the petitioner herein to pay a monthly maintenance of Rs. 5000/- to the respondent.

3. Upon filing of execution petition by respondent before learned Magistrate, the petitioner filed two separate applications, one for setting aside the ex-parte order of maintenance dated 15.04.2015 and another for staying the aforesaid order. Both the applications came to be dismissed by the learned Magistrate in terms of order dated 15.02.2017. The operative portion of the aforesaid order is reproduced hereunder:

“......Coming back to the facts and circumstances, the present case mentioned hereinabove the proceedings reveal that the petitioner in the instant application for setting aside ex-parte order has never caused his personal appearance before the court, nowhere the court has at any point of time taken in the execution application made by the respondent-lady for the execution of the maintenance order.

Under these facts and circumstances of the case both the applications i.e., the application for setting aside the ex-parte maintenance order and the application for staying the operation of the ex-parte maintenance order are dismissed for being not maintainable under law and also for the non-appearance of the petitioner in person. In exercise of the jurisdiction vested under section 488 clause (7) Code of Criminal Procedure compensatory costs of rupees 30,000 (thirty thousand only) are imposed on the petitioners brother which on realization by the court shall be payable to the respondent-lady and shall be paid within a period of one month from the date of this order.”

4. The aforesaid order came to be challenged by the petitioner by way of a revision petition before the Principal Sessions Judge, Budgam. The learned Sessions Judge vide the impugned order, while dismissing the revision petition, observed that petitioner has not explained the reasons as to what had prevented him from filing the revision petition within the prescribed period of limitation and it was held that petitioner has not made out a sufficient cause for condoning the delay, which according to the learned trial court was apparently unreasonable.

5. Learned counsel for the petitioner has vehemently contended that in the matters of condonation of delay in filing the proceedings, the Courts should take a liberal view and a hyper technical approach has to be avoided. According to the learned counsel, both the courts below have taken a hyper technical view of the matter and shut out the defence of the petitioner on merits. In support of his contentions, learned counsel for the petitioner has relied upon following judgments:

1. Ajit Singh Thakur Singh vs. State of Gujarat, 1981 Legal Eagle 19 (SC)

2. Mushtaq vs. State of Rajasthan, 2008 Cri. L.J.