1 ( 2025:HHC:27420 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.210 of 2024 Reserved on: 06.08.2025 Decided on: 14.08.2025 Subhash Chand ...…. Petitioner Versus Bhag Devi …...Respondent Coram The Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner: Mr. Dibender Ghosh, Advocate. For the Respondent: M/s Prajwal Sharma and Ms. Aashima Vashista, Advocates, vice Mr. Vinod Sharma, Advocate. Rakesh Kainthla, Judge The present revision is directed against the order dated 04.07.2023, passed by learned Additional District Judge, Kinnaur at Rampur Bushehar, District Shimla (learned Appellate Court), vide which the application for condonation of delay filed by the petitioner (applicant before the learned Appellate Court) was dismissed. 1 Whether the reporters of the local papers may be allowed to see the Judgment?No 2 ( 2025:HHC:27420 ) 2. Briefly stated, the facts giving rise to the present revision are that the respondent (petitioner's wife) filed a petition under Section 127 of Cr. P.C. for enhancement of the maintenance awarded to her. The Court issued a notice to the petitioner who appeared through learned counsel. He sought an adjournment to file reply on 26.10.2013, which was granted subject to the payment of cost of ₹400/- as an exceptional opportunity. Matter was posted on 12.11.2013 for filing a reply. The petitioner was present on 12.11.2013 but did not file a reply. Hence, the right to file a reply was closed by the order of the court, and the matter was listed for recording the evidence of the wife. None appeared on behalf of the petitioner on 06.05.2014. Hence, the court proceeded ex parte against him, recorded the statements of two witnesses and enhanced the maintenance to the wife to ₹5000/- from ₹500/- vide order dated 12.11.2014. 3. The petitioner filed an application under Section 126(2) of Cr. P.C. for setting aside the ex parte order, however, this application was withdrawn on 08.09.2018. A revision was preferred before the learned Additional District Judge, Kinnaur, at Rampur Bushehar against the order dated 12.11.2014 along with an application for condonation of delay. 3 ( 2025:HHC:27420 ) 4. It was asserted in the application for condonation of delay that the maintenance order was passed on 12.11.2014, which came to the petitioner's notice on 12.05.2016, when the Court served a notice in the execution petition. He applied for a certified copy, which was supplied on 28.05.2016. An application was filed for setting aside the ex parte order under Section 126 (2) of Cr.P.C. The petitioner pursued the application with due diligence, but ultimately, withdrew it. The time spent in pursuing the application was to be condoned under Section 14 of the Limitation Act. Therefore, it was prayed that the delay in filing the revision be condoned. 5. The application was opposed by the respondent- wife. A rejoinder denying the contents of the reply and affirming those on the application was filed. 6. Learned Appellate Court framed the following issues:- 1. Whether there are sufficient grounds to condone the delay in filing the revision, as prayed for? OPA. 2. Whether the petition is not maintainable in the present form, as alleged? OPR. 4 ( 2025:HHC:27420 ) 3. Whether the applicant has not approached the court with clean hands, as alleged? OPR. 4. Relief. 7. The parties were called upon to produce the evidence, and the petitioner examined himself (PW1). The respondent-wife examined herself (RW1). 8. Learned Appellate Court held that the petitioner admitted that his counsel appeared on 03.11.2016 and he had knowledge. He also admitted that Tehsildar Sangla had passed an order of auction of his land on 05.06.2017. He also admitted that he had knowledge of the application under Section 127 of Cr.P.C. Thus, there was no explanation for the delay. The law will not favour a person who sleeps over his rights. Therefore, issues Nos. 1 to 3 were answered in the negative and the application was dismissed. 9. Being aggrieved by the order passed by the learned Appellate Court, the petitioner has filed the present revision asserting that the learned Appellate Court passed the order in a slipshod manner without going through the application and the relevant case law. The petitioner belongs to the tribal district of Kinnaur and could not appear before the Court on each and every date of hearing. The order was passed ex parte and was 5 ( 2025:HHC:27420 ) not in the knowledge of the petitioner. He applied for modification of the order, but withdrew the application as per the advice of counsel. There was sufficient cause for the condonation of the delay. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Revisional Court be set aside. 10. I have heard Mr. Dibender Ghosh, learned counsel for the petitioner and M/s Prajwal Sharma and Ms. Aashima Vashista, Advocates vice Mr. Vinod Sharma, Advocate, learned counsel for the respondent. 11. Mr. Dibender Ghosh, learned counsel for the petitioner, submitted that the learned Magistrate has passed an ex parte order against the petitioner. The petitioner came to know about the order when the notice was served upon him during the execution proceedings. He mistakenly filed an application under Section 126(2) Cr. P.C. for setting aside the ex parte order. This application was withdrawn as per the advice of the counsel. This led to the delay in filing the revision. Learned Revisional Court had taken a hyper-technical view while dismissing the application. Therefore, he prayed that the 6 ( 2025:HHC:27420 ) present revision be allowed and the order passed by the learned Revisional Court be set aside. 12. M/s Prajwal Sharma and Ms. Aashima Vashista, learned vice counsel representing the respondent, submitted that the petitioner knew about the proceedings. He was present when his right to reply was closed by the order of the Court. He failed to appear before the learned Trial Court when the matter was listed for recording the evidence. He cannot take advantage of his own wrong and claim that he did not know about the Court proceedings. His application for setting-aside ex parte order was barred by limitation. He withdrew the same without any justification and filed the revision, which was hopelessly barred by limitation. Learned Appellate Court had rightly dismissed the application. Therefore, they prayed that the present petition be dismissed. 13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 14. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the 7 ( 2025:HHC:27420 ) revisional court does not exercise an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: - “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality, or propriety of any finding, sentence, or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 15. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. 8 ( 2025:HHC:27420 ) 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of 9 ( 2025:HHC:27420 ) its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much- advanced stage in the proceedings under CrPC.” 16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) “27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be. 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection, and that too in the rarest of rare cases. 10 ( 2025:HHC:27420 ) 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. *** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. *** 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.” 17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statements of 11 ( 2025:HHC:27420 ) witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge. 16. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the 12 ( 2025:HHC:27420 ) provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much- advanced stage in the proceedings under CrPC.” 16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) “27. Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such 13 ( 2025:HHC:27420 ) principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be. 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. *** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily 14 ( 2025:HHC:27420 ) with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. *** 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.” 17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statements of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge. 17. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169: “12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5) 15 ( 2025:HHC:27420 ) “5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …” 13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material; the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) “14. … Unless the order passed by the Magistrate is perverse or the view taken by the 16 ( 2025:HHC:27420 ) court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power of the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.” 14. In the above case, also the conviction of the accused was also recorded, and the High Court set aside [Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis. 18. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205: “16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure 17 ( 2025:HHC:27420 ) Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record. 17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457], it is a well- established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.” 19. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 20. It is apparent from the record of learned Additional Chief Judicial Magistrate, Rampur Bushehar that the petitioner was duly served in the proceedings under Section 127 of Cr.P.C. He was present on 12.11.2013 when the matter was listed for filing reply, and his right to file reply was closed by the order of the Court. His counsel was present on 27.12.2013 when the matter was listed for recording the statements of the witnesses. His counsel was present on 28.03.2014, and the matter was listed on 06.05.2014, however, nobody appeared on behalf of the petitioner on 06.05.2014. Hence, the Court proceeded ex parte against the petitioner and recorded the statements of two witnesses. 18 ( 2025:HHC:27420 ) 21. There is nothing on record to show that the petitioner had a reasonable cause for not appearing before the Court on 06.05.2014. His application for condonation of delay filed before the learned Revisional Court is silent qua this fact. He was duly represented by his counsel on 28.03.2014, and he knew that the matter was posted on 06.05.2014 for recording the evidence. He cannot take advantage of the fact that he had failed to appear on 06.05.2014 to claim that he did not know the proceedings of the Court. Therefore, the very premise of the application that the ex parte order was passed without his knowledge is incorrect. 22. The petitioner has not mentioned that he ever made any inquiry about the proceedings pending before the learned Additional Chief Judicial Magistrate for seeking enhancement of maintenance. He denied in his cross-examination that he had received the summons in the proceedings under Section 127 of the Cr. P.C., which is factually incorrect because not only his presence was marked, but the presence of his learned counsel was also marked. 23. Therefore, the learned Revisional Court was justified in holding that the applicant has failed to assign any sufficient 19 ( 2025:HHC:27420 ) cause for not filing the revision against the order dated 12.11.2014 within the period of limitation. The reason assigned by him that he did not know about the proceedings is incorrect, and the learned Revisional court was justified in dismissing the application for condonation of delay. 24. Mr. Dibender Ghosh, learned counsel for the petitioner, placed reliance upon the judgment of the Hon'ble Supreme Court in Dwarika Prasad (D) Thr. Lrs. Versus Prithvi Raj Singh, 2024 SCC Online SC 3828, to submit that the Court should be liberal in setting aside the ex parte decree. In the cited case, the Hon'ble Supreme Court found that the applicant had entrusted his counsel to manage the suit and was not told about the ex parte decree. In the present, no such plea was taken. The petitioner never claimed that his counsel did not inform him of the ex parte decree. Further, Section 126 (2) of Cr.P.C. clearly provides that the proceedings are to be taken in the presence of the person against whom an order of payment of maintenance is proposed to be made, which clearly shows that the presence of the husband is necessary on every date of hearing. Therefore, the present case cannot be equated to a suit/appeal where the presence of a party on every date of hearing is not required, and 20 ( 2025:HHC:27420 ) the cited judgment does not apply to the facts of the present case. 25. No other point was urged. 26. In view of the above, there is no infirmity in the order passed by the learned Appellate Court. Consequently, the present revision fails, and the same is dismissed. 27. Records of the learned Courts below be sent back forthwith, along with a copy of this judgment. (Rakesh Kainthla) Judge 14 August 2025. (yogesh)