Dismissed

Dr Kamlesh Kumar Mishra @ Dr Kk Mishra v. State of U.P. and Another

Allahabad HC6 Sept 2024A482/16368/2024

Case brief

AI extract

What is this about?

The单 judge in Allahabad High Court dismissed the applicant's application under Section 482 Cr.P.C. seeking quashing of an impugned order rejecting a discharge. The court held that the application was barred by laches due to an unexplained delay of nearly five years.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed on account of laches/delay without sufficient explanation.

Dr Kamlesh Kumar Mishra @ Dr Kk Mishra vs State… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:145797

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Court No. - 77

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Case :- APPLICATION U/S 482 No. - 16368 of 2024

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Applicant :- Dr Kamlesh Kumar Mishra @ Dr Kk Mishra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mani Shanker Pandey,Rama Nand Shukla

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Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Mani Shanker Pandey, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1

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Perused the record.

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Applicant-Dr Kamlesh Kumar Mishra @ Dr Kk Mishra, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-

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"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the impugned order dated 20.08.2019 passed by Additional Chief Judicial Magistrate, Court No.2, Varanasi in Case No.1763 of 2011 (State Vs. Dr. K.K. Mishra and others) arising out of case crime no. 234 of 1999 Under Section 406, 409, 420, 467, 468, 471 and 120B I.P.C. Police Station-Cantt, DistrictVaranasi pending in the Court of First Additional Chief Judicial Magistrate, Court No.2, Varanasi.

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It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceeding of Case No.1763 of 2011 (State Vs. Dr. K.K. Mishra and others) arising out of case crime no. 234 of 1999 Under Section 406, 409, 420, 467, 468, 471 and 120B I.P.C. Police Station-Cantt, DistrictVaranasi pending in the Court of First Additional Chief Judicial Magistrate, Court No.2, Varanasi.

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It is also further prayed that this Hon'ble Court may graciously be pleased to quash the Non Bailable Warrant dated 28.04.2023 passed by Additional Chief Judicial Magistrate 1st, Varanasi in Case No.1763 of 2011 (State Vs. Dr. K.K. Mishra and others) arising out of case crime no. 234 of 1999 Under Section 406, 409, 420, 467, 468, 471 and 120B I.P.C. Police StationCantt, District-Varanasi pending in the Court of First Additional Chief Judicial Magistrate, Court No.2, Varanasi, otherwise the applicants shall suffer irreparable loss and injury.

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And/or to pass such other and further order as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

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Record shows that applicant had earlier approached this Court by means of an application under Section 482 Cr.P.C., which was disposed of finally vide order dated 11.10.2011 passed in Criminal Misc. Application under Section 482 Cr.P.C. NO. 31821 of 2011 (Dr. K. K. Mishra Vs. State of U.P. and Another). For ready reference, the same is reproduced herein-below:

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"Heard learned counsel for the applicant and learned A.G.A. for the Staterespondent.

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The present application has been filed for quashing of the charge sheet filed in Criminal Case No. 11589 of 2004 arising out of Case Crime No. 234 of 1999, under Sections 406, 409, 420, 467, 468, 469, 471, 120-B IPC, police station Cant., District Varanasi pending before the Chief Judicial Magistrate, Varanasi.

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Learned counsel for the applicant contends that at the relevant point of time, the applicant was posted as District Handicapped Welfare Officer and bare reading of the first information report shows that no offence under the charged sections is made out against the applicant.

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It is next argued by the learned counsel for the applicant that the applicant had performed his official duties and the criminal prosecution of the applicant is in violation of the provisions of Section 197 Cr.P.C.

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Learned AGA has contended that averments as contained in the first information report shows that the act of the applicant was not in the discharge of official duty.

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The contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contentions.

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From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under section 239, 245(2) or 227/228, Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial Court.

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The prayer for quashing of the charge sheet is refused.

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However, in the circumstances of the case, it is provided that if the applicant moves an application for surrender before the court concerned within three weeks from today, the Magistrate concerned shall fix a date about two weeks thereafter for the appearance of the applicant and in the meantime release the applicant on interim bail on such terms and conditions as the court concerned considers fit and proper till the date fixed for the disposal of the regular bail.

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The court concerned shall also direct the Public Prosecutor to seek instructions from the investigating officer by the date fixed and also give an opportunity of hearing to the informant and thereafter decide the regular

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bail application of the applicant in accordance with the observations of the Full Bench of this Court in Amrawati and another Vs. State of UP, 2005 Cri. LJ 755, affirmed by the Supreme Court in Lal Kamlendra Pratap Singh Vs. State of UP, (2009) 4, SCC 437 and reiterated by the Division Bench of this Court in Sheoraj Singh alias Chuttan Vs. State of UP and others, 2009 (65) ACC 781.

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If further instructions are needed or if adjournment of the case on the date fixed for hearing becomes unavoidable, the Court may fix another date, and may also extend the earlier order granting interim bail, if it deems fit.

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In case the applicant fails to appear before the court concerned on the dates fixed or he fails to cooperate with the investigating officer during investigation, it will be open to the Public Prosecutor to move an application for cancelling the order of interim/final bail and the Court concerned may pass an appropriate order on merits.

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With the aforesaid directions, this application is finally disposed of.

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Order Date :- 11.10.2011 "

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Subsequent to above order dated 11.10.2011, applicant filed a discharge application before court below in terms of Section 239 Cr.P.C., which was rejected by means of the impugned order dated 20.08.2019.

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At the very outset, the learned A.G.A. has raised a preliminary objection by submitting that present application has been filed after an expiry of a period of almost four years and eight and a half months from the date of impugned order dated 20.08.2019. As such, present application is hopelessly barred by laches. However, delay/laches in filing the present application have not been sufficiently explained. It is thus urged by the learned A.G.A. that since the delay/laches in filing present application have not been sufficiently explained by applicant, therefore, present application

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is liable to be dismissed on the ground of laches/delay.

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When confronted with above, the learned counsel for applicant invited the attention of Court to paragraph 19 of the affidavit filed in support of present application and on basis thereof, he contends that delay/laches in filing the present application have been sufficiently explained. For ready reference, paragraph 19 is reproduced herein-below:-

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" That after dismissing the aforesaid discharge application by the trial court dated 20.08.2019 the applicant is suffering due to disease of hard attack and taking treatment in various hospital since 2023 and unable to challenged the order dated 20.08.2019 before this Hon'ble Court. The photo copy of the medical prescription and document of treatment are being filed herewith and marked as Annexure No.6 to this affidavit."

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Upon perusal of the averments made in paragraph 19 of the affidavit, this Court finds that explanation offered by applicant for explaining the delay/lachjes is neither sufficient nor truthful. In view of above, no good or sufficient ground exists to entertain this application.

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As a result, present application fails and is liable to be dismissed on the ground of laches/delay.

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It is accordingly dismissed .

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Order Date :- 6.9.2024 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Dr Kamlesh Kumar Mishra @ Dr Kk Mishra v. State of U.P. and Another

Case brief

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Dr Kamlesh Kumar Mishra @ Dr Kk Mishra v. State of U.P. and Another

Case brief

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