Shakeel Anwar Ziauddin Shaikh And ANR v. Shabana Ashley Periera Nee Shaikh Shabana Ziauddin And ANR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3113 OF 2017 Shakeel Anwar Zianuddin Shaikh and another Petitioners versus Shabana Ahsley Periera Nee Shaikh Shabana Ziauddin and another Respondents Mr.M.P.Jain I/by S.M.Jain and Associates for petitioners. Ms.Sufian Qureshi for respondents.

Mrs.N.S.Jain, APP, for State.

CORAM :

PRAKASH D. NAIK, J.

DATE : 14th August 2018 PC :

1.

The petitioners in this petition have preferred revision application before the Sessions Court challenging the order issuing process dated 15th March 2016. The process was issued for offences under Sections 420, 406, 468, 471, 506 of Indian Penal Code. It appears that there was delay of about 150 days in preferring the revision application before the Sessions Court. In view of delay, Miscellaneous Application No.292 of 2017 was filed. The petitioners had contended before the Revisional Court that the petitioner no.1 is employed in United Arab Emirates and he came to Mumbai on 27th May 2016 and received summons on 28th May 2016. Thereafter on 4th June 2016 he left to UAE for job and again returned India on 18th July 2016 and again left to UAE on 20th July 2016. On 9th October 2016 he went to Dubai. Petitioner no.2 appeared before the Trial Court on 20th December 2016 and executed bail bond. The petitioner no.1 also appeared before the Trial Court on 7th February Manish S Thatte by Manish S Thatte Date:

2018.08.20 15:33:47 +0530

2 of 3 11.WP.3113.2017.doc 2017. By assigning these reasons it was prayed that delay be condoned. Learned Sessions Judge, however, observed that delay was of about 156 days. The petitioners had failed to show sufficient cause for condonation of delay in accordance with Section 5 of Limitation Act. Learned Sessions Judge, therefore, rejected the application for condonation of delay. It was observed that the petitioner no.2 is resident of Mumbai and even she had not taken any steps for challenging the order of process. Thus, there was no reason to condone the delay.

2.

The advocate for petitioners submits that the Sessions Court has not considered the explanation for condonation of delay in proper perspective. The reasons were assigned in the application for condonation of delay. It is not expected that every day's delay should be explained. The petitioners are being prosecuted u/s 406, 420, 506 of IPC etc.. The petitioners be given an opportunity to contest the revision application on merits.

3.

The counsel for respondents submitted that the petitioners were not diligent in pursuing the remedy of revision application. The explanation which was tendered in the application for condonation of delay was not sufficient to condone the delay. The petitioners had failed to show sufficient cause to condone the delay. Although petitioner no.2 is residing in Mumbai, she did not pursue her remedy by filing the revision application. In the absence of plausible explanation, the delay may not be condoned.

4.

On perusal of the impugned order and the documents on record it appears that there was delay of about 150 days in

3 of 3 11.WP.3113.2017.doc preferring the revision application. The petitioners had given explanation as stated above and sought condonation of delay. The petitioner no.1 appears to be employed in UAE. Petitioner no.2 is the wife of petitioner no.1. Although there is delay in preferring the revision application, the Courts are not expected to take hypertechnical view in the matters of condonation of delay. Unless the delay is exorbitant, the parties should not be deprived of contesting the matters on merits. In the circumstances, the impugned order is required to be set aside with directions to Sessions court to hear the revision application on merits. Hence, I pass following order :

ORDER

(i) Impugned order dated 4th May 2017 passed by the Additional Sessions Judge, Greater Bombay in Miscellaneous Application No.292 of 2017 is quashed and set aside;

(ii) The Sessions Court is directed to hear the revision application preferred by the petitioners on merits and decide the same in accordance with law;

(iii) Criminal Writ Petition No.3113 of 2017 stands disposed off. (PRAKASH D. NAIK, J.) MST