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2022 Supreme(Gau) 723
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ROBIN PHUKAN, J.
Mahbubur Rahman, S/o Late Lutfur Rahman – Appellant
Versus
Central Bureau Of Investigation (CBI) And Anr. – Respondent
Crl.Pet.1177 of 2018
Decided on : 30-09-2022
Advocate Appeared:
For the Appellant : MR N DUTTA
Point of Law: An order of discharge under Section 227 of the Code would be warranted only in those cases where the Court is satisfied that there are no chances of conviction of an accused and the trial would be an exercise in futility.
Headnote:
Constitution of India - Article 227- Criminal Procedure Code,1973 - Section 482, read with Section 397 – Prevention of Corruption Act - Sections 7/13(2)/13(1)(d) - Quash of Criminal proceedings – Public Servant - Whether ESIC Contractual Doctor for one year service, is a Central Government employee or not - Sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. Para 28, 29
Finding of the Court:
Prevention of Corruption Act is a special statute- Term ‘public servant’, as defined in Section 2(c) of the P.C. Act, will definitely, have precedence over the definition of ‘public servant’ as provided in Section 21 of the IPC- Establishing a case beyond reasonable doubt is the duty of the prosecution and the burden lies on them as to how they will prove the same before the learned Court below - Availability or non-availability of the original copies of the aforesaid five number of OPD slips, is the function of the learned Court below and if the same are not available and Xerox copies of the same are not admissible in evidence, then definitely the learned Court below give the quietus the same deserves - Accused is to be looked into nor has the probative value of the materials on record to be weighed.. In all other cases, an order for charge under Section 228 of the Code has to be passed so as to give the prosecution an opportunity to lead evidence and establish the allegations.
Result: Petition dismissed
JUDGMENT :
Heard Mr. Z. Kamar, learned Senior counsel, being assisted by Mr. B. Talukdar, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned standing counsel for the respondent/CBI.
2. In this petition under Section 482, read with Section 397 of the CrPC and Article 227 of the Constitution of India, the petitioner, Dr. Mahbubur Rahman, has challenged the legality, propriety and correctness of the order dated 29.10.2018, passed by the learned Special Judge, CBI, Assam at Guwahati, in Special Case No.04/2017 and also the charge sheet No.Nil, dated 27.09.2017, filed by the I.O. against the petitioner in connection with Crime No.RC-0117 2017 A 0002.
3. It is to be noted that vide impugned order dated 27.09.2017, the learned Special Judge, CBI, Assam at Guwahati has framed charge against the petitioner under Sections 7/13(2)/13(1)(d) of the Prevention of Corruption Act (here-in-after referred to as ‘the P.C. Act’), dismissing the petition filed under section 227 of the Code of Criminal Procedure.
4. The factual background leading to filing of the present petition is briefly stated as under:
“On 01.06.2017, one Sri Prakash Jyoti Gogoi of M/s. Akash-D Medicos, Guwahati lodged a complaint to the Head of the Branch, Anti Corruption, Guwahati against Dr. Mahbubur Rahman, Medical Doctor of ESIC Hospital, Beltola, Guwahati to the effect that he has been looking after the business of M/s. Akash-D Medicos, Guwahati, which is in the name of his mother Smti Anima Gogoi and others and the said firm has been awarded contract of supply of drugs and dressing under their local purchase provision, by the ESIC Model Hospital, Beltola, Guwahati, in the month of April, 2016, for a period of one year and the said contract period was extended for another period of two months from 16.04.2017 to 15.06.2017. As per the practice, the patients brings the copy of ‘local purchased allowed prescriptions’ from the ESIC Doctors to them and after collecting the said prescriptions, they used to issue the branded prescribed drugs to the patients and thereafter, submits their bills to the ESIC Model Hospital, once in 15 days, enclosing the local purchase prescriptions collected from the patients and then the ESIC Model Hospital used to make payment to them. In the first week of February, 2017, Dr. Mahbubur Rahman, Medical Doctor, ESIC Model Hospital, Guwahati called him in his mobile No.95777 26525 and asked him to meet him near Science Museum. Accordingly, he met him in front of the Science Museum, Khanapara and thereafter, Dr. Mahbubur Rahman gave him five numbers of OPD cum LP Allowed prescriptions, issued by him in the name of: Ms. Sabina Begum, Mr. SK Haydar Ali, M. Moinul Hoque, Mr. Atul Das and Ms. Jun Begum and asked him to pay 60% of the costs of the medicines of worth Rs.36,000/-(the cost of the fake prescription is around Rs.55,000/-to Rs.60,000/-), mentioned in the said prescriptions by cash and the Doctor also told him that he prepared the said fake prescriptions and he need cash, not the drugs. Then Prakash Jyoti Gogoi refused to make payment of the demanded amount. Then the Doctor told him that he will not prescribe any branded drugs to any patient and he will only prescribe generic medicines and that he will help him getting tender, awarded to him for some more tenure but he refused to give him cash and he retained the OPD slips given to him by the Doctor. Again, a week after the said incident, Dr. Mahbubur Rahman called him in his mobile and asked him to pay the amount demanded by him and in the 3rd week of May, 2017, when he visited the ESIC Hospital to enquire about his pending bills, Dr. Mahbubur Rahman called him to his chamber and asked him to pay the money against the said prescriptions, but, he refused to make any payment to the Doctor. Then in the last week, the Doctor again called him on the demanded money against the fake prescriptions and then the Doctor threatened him to stop the payment against his pending bill and also to
