C482/2272/2022
2023 Latest Caselaw 703 UK

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                                  C482 No.2272 of 2022
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. Banka Bihari Panda, Advocate, on behalf of Mrs. Prabha Naithani, Advocate, for the applicant.

Mr. Pratiroop Pandey, A.G.A., with Mr. Pramod Tiwari, Brief Holder, for the State of Uttarakhand.

To deal with the C-482 Application, as it has been argued by the learned counsel for the applicant, it becomes inevitable to refer to, that the applicant, herein, himself was the petitioner in the earlier instituted Writ Petition, which was instituted on 20th December, 2012, praying for quashing of the FIR No.299/12 dated 20.11.2012, which was registered against him.

Meaning thereby, the knowledge of registration of the FIR was quite apparent and available to the petitioner, when he preferred the Writ Petition for quashing of FIR. In the Writ Petition, there was initially an interim order granted on 21st December, 2012, and later on, it was in the presence of the counsel for the petitioner, that the Writ Petition was dismissed as having rendered infructuous with a specific observation made by the Coordinate Bench, that the State Government had made a statement, that after completion of the investigation into the allegation of FIR, the chargesheet has already been submitted. Meaning thereby, when the Writ petition was dismissed on 16th April, 2013, in presence of his Counsel, the petitioner, who was represented through this counsel, was well in the knowledge of the fact that the chargesheet has been submitted, and that the criminal proceedings have been put to motion.

This Court is of the view, that looking to the nature of employment of the petitioner, who claims himself to be a Camera Man in a reckoned news channel, it cannot be said that he was not aware of the judicial proceedings or the procedure to be legally adopted after submission of the chargesheet.

Sitting over it, and not resorting to an appropriate recourse available to him as against the subsequent action to be taken cannot permit him to take an advantage of the delay of 9-1/2 years in putting a challenge to the proceedings of the aforesaid Criminal Case, now at a highly belated stage. It's not even that, as a consequence of the submission of the chargesheet, the Criminal Case No. 184 of 2013, State Vs. Deepak Sharma, for trying the present applicant for the offence under Sections 376, 506 and 417 of the IPC, was put to motion, as soon as the chargesheet was submitted and, consequently, the summoning order was issued by the learned Trial Court in criminal case, which as per the report of the trial court dated 02.01.2023, was shown to have been served upon the applicant.

It is after the issuance of the summoning order, when despite of the fact, that the applicant has not approached before the Court, the proceedings under Section 82 of the Cr.P.C. was resorted to against him.

Even after that, on his own volition, he sat over the issue, and for the first time, he filed the C482 Application on 16th December, 2022, almost after 9-1/2 years, modulating the relief in the manner by giving a challenge to the chargesheet of 4th February, 2013, the knowledge of which, was already available to the petitioner, when the Writ Petition was dismissed on 16.04.2013, and also gave a challenge to the summoning order of 17th July, 2013, as well as the order passed under Section 82 of the Cr.P.C.

Resort to the proceedings of C-482 Application, by filing the same on 16th December, 2022, and entertainment of the same by the Courts under Section 482 of the Cr.P.C., will in itself amount to be an abuse of process of law, in fact, the resort to the C482 proceedings was nothing but a tool adopted by the present applicant to delay the proceedings for one reason or the another.

In the C482 Application also, for the reasons best know to the applicant himself, which may be malicious too, that he has not disclosed the fact about filing of the earlier Writ Petition, and the fact about its dismissal on 16th April, 2013. This in itself shows, that the resort to the C482 Application by the present applicant was with the malicious intention to mislead the Court and procure an order, because had he been clear in his conviction, he ought to have disclosed the fact of dismissal of the earlier Writ Petition, because the institution of the same and its consequential dismissal on 16.04.2013, will amount to that the applicant was well within the knowledge of the criminal proceedings having being put to motion against him after submission of the chargesheet against him on 04.02.2013.

The learned counsel for the applicant, instead of answering the question of 9-1/2 years of delay of putting a challenge to the chargesheet and the summoning order in the present C482 Application has rather referred to the judgment of the Hon'ble Apex Court as rendered in Criminal Appeal No. 233 of 2021, Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and another, and the subsequent judgement rendered by this Court in C482 Application No. 730 of 2022, Vijay Shukla Vs. State of Uttarakhand and another, as decided on 31st August, 2022. In fact, the learned counsel for the applicant has attempted to argue and divert answer to question of delay, that on the basis of the set of allegations levelled in the FIR, it would rather be a consensual relationship, and in an event, if it was a consensual relationship, it will not amount to a rape under Section 375 of the IPC, and thus, no offence under Section 376 of the IPC could be made out against him.

There cannot be any dispute with regard to the above ratio, which was decided by this Court on the basis of the judgment of the Hon'ble Apex Court, as rendered in the matter of Sonu @ Subhash Kumar (Supra). But the question would be as to who is to be extended with such benefit of taking a shelter of the ratio subsequently laid down by the Hon'ble Apex Court, as well as by the High Court, particularly when, he himself has derelicted in resorting to the remedies available to him under law because the Courts are not meant for those litigants, who sleep over their legal rights by not approaching the Court within an appropriate time, and particularly, in the case, herein, when the applicant has not disclosed the fact in the C-482 Application, about filing of the earlier Writ Petition and the orders passed on it, it would be a case where the applicant has not come up with the clean hands before this Court and has deliberately concealed the fact of knowledge of filing of the chargesheet. Hence, the discretionary remedy available under Section 482 of the Cr.P.C. is not available for the applicant, apart from the fact, that he has cleverly intended to delay the proceedings by not approaching the Court at an appropriate time.

Hence, this Court is not inclined to interfere in the C-482 Application, in the exercise of its equitable jurisdiction. The C482 Application is accordingly dismissed.

(Sharad Kumar Sharma, J.) Dated 20.03.2023 Shiv