Kamlesh Kumari vs State of U.P.& Ors.

G. S. N. Tripathi, J.—This is a criminal revision under Section 397, Cr. PC arising out of a cryptic judgment and order dated 2181995 passed by the learned Sessions Judge, Etah in Criminal Revision No. 70/95 Rajendra Singh v. Smt. Kamlesh Kumari.

In a proceeding under Section 125, CrPC an ex pane order passed on 2351994. No application to set aside that order under Section 126(2), CrPC was moved by the husband, respondent No. 2, Rajendra Singh. He tried to justify his absence on some grounds. Those grounds were examined by the learned Magistrate concerned and it was found that the applicant husband had no just ground to get this order set aside. The application under Section 126(2), CrPC was dismissed by the learned Ilnd Addl. Munsif Magistrate, Etah on 1021995.

Aggrieved by this order, the applicant Rajendra Singh filed a Criminal Revision No. 70/95. That was decided by the learned Sessions Judge on 2181995. The learned Sessions Judge has observed as follows:

"I find that the impugned order suffer as with no illegality or impropriety and it has to be dismissed........

The revision is dismissed."

The implication of this order is that the order passed by the learned IInd Addl. Munsif, Etah under Section 126(2), CrPC on 1021995 was upheld and the husband had no justifiable reason to get the ex pane order set aside. This confirmation of the finding by the learned Sessions Judge is very much there land on the record. But the leaned Sessions Judge become? more charitable and has made his following observations:

"Revision is dismissed. It is however, desirable that if a fresh petition is moved by the revisionist for reconsideration of the matter, the learned lower court may consider the bona fides of the applicantrevisionist."

The present revisionist Smt. Kamlesh Kumari has felt aggrieved by these observations made by the learned Sessions Judge.

After hearing the learned counsel for the parties, I find that there is much force in this revision and it deserves to be allowed.

The learned Sessions Judge, Etah upheld the findings of the learned Magistrate holding that his order does not suffer from any illegality or impropriety. Thus there is no valid reason to set aside this order. The learned Sessions Judge, accordingly dismissed the revision petition filed by the husband. Once that has been done, the other remarks entitling the revisionist to file a fresh petition are purely obiter diets. It has no legal basis.

Even when the matter was sent by the learned Sessions Judge to the learned Magistrate''s court, the learned Sessions Judge could not have gone beyond the finding recorded by the learned Magistrate himself, whereby his earlier finding recorded by the learned Magistrate has been confirmed. The result is that these remarks are likely to create a confusion. It has no legal basis. The revision deserves to be allowed.

The revision is allowed. The following remarks made in the body of the impugned order i.e. "It is, however, desirable that if a fresh petition is moved by the revisionist for reconsideration of the matter, dated 2181995 the learned lower court may consider the bona fides of the applicantrevisionist, is quashed.

Revision allowed.