Neerja Bhargava vs State Of Nct Delhi & Anr
2015 Latest Caselaw 7341 Del

$~28

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.M.C. 3844/2015 & Crl.M.A. Nos.13675-13676/2015

                                        Date of Decision: September 28th, 2015

       NEERJA BHARGAVA                                   ..... Petitioner
                   Through              Mr.Rajesh Kumar, Adv. with
                                        Mr.Gaurav Kumar Singh, Adv.,
                                        Mr.Rakesh Chaurasiya, Adv.


                               versus


       STATE OF NCT DELHI & ANR                 ..... Respondents
                     Through  Mr.Arun K. Sharma, APP for the
                              State.
                              SI Pardeep, PS Subhash Palace.


       CORAM:
       HON'BLE MR. JUSTICE P.S.TEJI


       P.S. TEJI, J

       1.     The present petition has been filed by the petitioner under Section

       482, Code of Criminal Procedure, 1908 ("Cr.P.C.") for quashing of the

       orders dated 12th September, 1996 and 07th February, 2009 passed in

       relation to the FIR No. 442 of 1993 under Sections 452,506 r/w Section

       34, Indian Penal Code, 1860 of P.S. Saraswati Vihar, Delhi and for

       quashing the criminal proceedings being continued by the Trial Court

       pursuant to the framing of charges against the petitioner vide order dated

       07th February, 2009.

       Crl.M.C. No.3844/2015                                      Page 1 of 9
 2.     Facts

in brief of the present case are that the petitioner namely,

Neerja Bhargava, who is fully disabled, accompanied by her minor son,

visited India in the month of August, 1993 for treatment. The respondent

No. 2, namely, Ms. Indira Kumari i.e. sister-in-law of the petitioner

lodged a complaint dated 28.08.1993 at P.S. Saraswati Vihar, Delhi

against the petitioner, petitioner's sister-Dr. Charu Smita Gupta,

petitioner's father-Sh. Om Prakash and petitioner's brother-Jeevash

Sharma alleging that the petitioner demanded Rs. 20 Lakhs from the

complainant- respondent no. 2 and threatened to kill her. On the basis of

the said complaint, FIR No. 442/1993 was registered. The I.O. of the said

case filed a closure report under Section 173 Cr.P.C. on 07 th December,

1993 before the Learned Metropolitan Magistrate, following which the

learned Metropolitan Magistrate was pleased to discharge the accused

persons. The respondent No. 2 preferred a criminal revision against the

order dated 07.12.1993 before the learned Additional Sessions Judge who

was pleased to set aside the said order vide order dated 12th September,

1996 and remanded back the matter to the Trial Court for trial of all the

accused persons. On 21.02.1999, Sh. Om Prakash, father of the petitioner

(one of the accused) expired. Dr. Charu Smita Gupta and Sh. Jeevesh

Sharma preferred a criminal revision bearing No.344/1997 before this

Court against the order dated 12.09.1996. This Court by order dated 23rd

August, 1999 set aside the order dated 12th September, 1996 against them.

On 05.02.2002, this Court was pleased to dismiss as withdrawn the

Crl.M.(M) No.4278/2001 preferred by the petitioner against the trial

being conducted against her. The Trial Court framed charges against the

petitioner under Sections 506 and 452 read with Section 34 IPC on 7 th

February, 2009. This Court by order dated 25th March, 2010 was pleased

to dismiss the Crl.M.C. No.680/2010 filed by the petitioner seeking

quashing of the said FIR.

3. The petitioner filed Crl.M.C. No.1430/2014 praying for quashing

of criminal proceedings pending against the petitioner in relation to the

said FIR. However, the said Criminal M.C. was dismissed as withdrawn

on 24th March, 2014 as the petitioner had not challenged the framing of

charge against her. Thereafter the petitioner filed Crl.M.C. No.1872/2014

before this Court challenging therein framing of charge against her by the

Trial Court. This Court was pleased to dispose of the said petition vide

order dated 1st September, 2015 observing that the impugned order dated

7th February, 2009 was passed in pursuance to the revisional order dated

12th September, 1996 which was required to be challenged by the

petitioner, but no challenge to the revisional order dated 12th September,

1996 was made.

4. Learned counsel for the petitioner has argued that the order dated

12.09.1996 is contrary to the provisions contained in Section 399/401

Cr.P.C. This Court so far as the other two co-accused are concerned was

pleased to quash the order dated 12.09.1996 passed by the learned

Additional Sessions Judge, Delhi holding the same to be in contravention

to Section 401(2) of Cr.P.C. The trial conducted by the Trial Court

against the petitioner is on the basis of a false complaint to prevent the

petitioner to return back to USA. It is further argued that the delay in

filing the present petition has occasioned due to several petitions

preferred by the petitioner before this Court.

5. The petitioner relies on the pronouncement of the Hon'ble

Supreme Court in Dhariwal Tobacco Products Limited & Ors. v. State

of Maharashtra & Anr. (2009) 2 SCCC 370 in which it was observed

that availability of alternative remedy of filing revision under Section 397

Cr.P.C. could not be a ground to dismiss the application under Section

484 Cr.P.C.

The petitioner also relies on Gurdev Singh v. Surinder Singh &

Ors. 2014(9) SCALE 556 in which it was observed that no order shall be

made by the High Court while exercising its power under Section 401

Cr.P.C. to the prejudice of the accused or the other persons unless he has

had an opportunity of being heard.

The petitioner further relies on Gian Singh v. State of Punjab &

Anr. (2012) 10 SCC 303 in which the Hon'ble Supreme Court held that

power of High Court in quashing a criminal proceeding or FIR or

complaint in exercise of its inherent jurisdiction is distinct and different

from power of a criminal court of compounding offences under Section

320 Cr.P.C.

6. On the other hand, while opposing the present petition, the

arguments advanced by learned APP for the State are that the FIR was

lodged on 28th August, 1993 by the complainant. A closure report was

filed by the investigating agency which was accepted and thereafter on

12th September, 1996, the Additional Sessions Judge, Delhi while setting

aside the order dated 7th December, 1993 of the learned MM, remanded

back the matter to Trial Court for trial of the accused persons including

the petitioner. Nevertheless, till date the petitioner has not challenged the

charges framed against her inspite of getting numerous opportunities to

challenge the same. In fact, throughout the proceedings at the Trial Court

level, the conduct of the petitioner was such that the Trial Court had to

issue three non-bailable warrants against the petitioner on 1st April, 2013,

4th January, 2013 and 3rd September, 2013. He further submitted that the

petitioner being a permanent resident of USA might flee from justice.

The learned APP has specifically rebutted each and every ground raised

by the petitioner for quashing of the said two orders.

7. Heard learned counsel for the parties at length.

8. It is an admitted position in the present case that vide order dated

12th September, 1996, the learned Additional Sessions Judge had set aside

the order dated 7th December, 1993 vide which the learned Metropolitan

Magistrate had discharged all the accused persons whereafter the Trial

Court framed charges against the petitioner under Sections 506 & 452

read with Section 34 of IPC on 7th February, 2009. Vide orders dated 25th

March, 2010 & 24th March, 2014, the petitions of the petitioner for

quashing of the said FIR and for quashing the criminal proceedings

pending against the petitioner in relation to the said FIR, respectively,

were dismissed by this Court with a liberty to challenge the order on

charge dated 7th February, 2009 passed by the Trial Court in accordance

with law.

9. In P.K. Ramachandran v. State of Kerala & Anr., AIR 1998 SC

2276, the Apex Court while considering a case of condonation of delay of

565 days, wherein no explanation much less a reasonable or satisfactory

explanation for condonation of delay had been given, held that the law of

limitation may harshly affect a particular party but it has to be applied

with all its rigour when the statute so prescribes and the Courts have no

power to extend the period of limitation on equitable grounds.

Further, in Esha Bhattacharjee v. Raghunathpur Nafar Academy

& Ors. (2013) 12 SCC 649 the Hon'ble Apex Court laid down various

principles inter alia:

"v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact vi) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. xvii) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

10. Laches have important bearing while deciding such petitions.

Persons whose right is being intruded by the opposite parties must keep

vigil and must not sleep over their right. Law needs to be put into motion

as and when somebody's legitimate rights are invaded otherwise it will be

taken that he has given consent to the other party to carry on with the

affairs. Therefore, prima-facie the petitioner is guilty of laches. Laches is

an "unreasonable delay pursuing a right or claim in a way that prejudices

the opposing party". It is an equitable defence, that is, a defense to a

claim for an equitable remedy. In other words, failure to assert one's

rights in a timely manner can result in a claim being barred by laches.

Laches is associated with one of the maxims of equity Vigilantibus non

dormientibus æquitas subvenit. (Equity aids the vigilant, not the sleeping

ones).

11. The judgments in the case of Dhariwal Tobacco Products

Limited & Ors (supra), Gurdev Singh (supra) and Gian Singh (supra)

relied upon by the petitioner in support of her case are based on

completely different grounds and thus do not render any support to the

case of the petitioner.

12. The plea taken by the counsel for the petitioner invoking Section

482 Cr.P.C. is that there is considerable delay in not filing the revision

and non-filing of the revision would not come in the way of invoking

Section 482 Cr.P.C. to use the inherent powers of this Court.

13. The argument advanced by the counsel for the petitioner is not

acceptable as the inherent powers of the Court under Section 482 Cr.P.C.

are meant for the cases when there is no express provision of law to a

person to have its remedy. Wherever there is express provision of law,

which could have been invoked by the petitioner, the inherent power

ought not to be exercised to circumvent the express provisions of law. In

other words, despite having the remedy under the law, the petitioner did

not chose to avail the same. Then subsequently after a long delay and

laches, Section 482 Cr.P.C. need not to be exercised to curb the delay

caused on the part of the petitioner in not challenging the law by invoking

the express provisions of Cr.P.C. i.e. in the present case the petitioner had

to invoke the revisional jurisdiction against the order dated 12.09.1996

within the prescribed period of limitation of 90 days.

14. So, at this stage, after a delay of about 19 years, the petitioner is

not entitled to have any relief under Section 482 Cr.P.C. More the

reason, inherent powers of the High Court are meant to prevent the abuse

of process of law and to meet the ends of justice, which is available to an

aggrieved person to avoid unnecessary delay and to put an end to the

proceedings and in the present case it is otherwise.

15. In the facts and circumstances, this Court is of the considered

opinion that the petitioner is not entitled to have any relief under Section

482 Cr.P.C.

16. The petition is accordingly dismissed.

(P.S.TEJI) JUDGE SEPTEMBER 28, 2015 aa