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2020 Supreme(All) 1368
IN THE HIGH COURT OF ALLAHABAD
SUNEET KUMAR, J.
Vivek Jain – Appellant
Versus
Central Bureau of Investigation, Acb, Ghaziabad – Respondent
Application U/S 482 No. 11058 of 2020
Decided On : 18-11-2020
Advocate Appeared:
For the Appellant : Kuldeep Saxena
For the Respondents: Sanjay Kumar Yadav
Point of law : statutory safeguard provided under Section 5A of the P.C. Act must be strictly complied with, for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecution.
Headnote:
Prevention of Corruption Act, 1988 - Section 13 - Code of Criminal Procedure, 1973 - Section 482 – Indian Penal Code,1860 - sections 409, 420, 468 & 471 - Health and Family Welfare Department – Claim of compensation - facts giving rise to the petition, briefly stated, is that pursuant to an order dated 15.11.2011, passed by this Court at Lucknow, in Writ Petition Nos. 3611 (MB) of 2011 (PIL), 3301 (MB) of 2011 (PIL) and No. 2647 (MB) of 2011 (PIL), inter alia, directed Central Bureau of Investigation[CBI] to conduct a preliminary enquiry in the matter of execution and implementation of the National Rural Health Mission (for short 'NRHM') and utilization of funds at various levels in the entire State of Uttar Pradesh commencing 2005-2006. In compliance thereof, on 31 January 2013, CBI registered a preliminary enquiry against the officers of Health and Family Welfare Department of District Moradabad, and unknown private persons. The enquiry was conducted by the Additional Superintendent of Police, CBI, ACB, Ghaziabad, for the period 2005-06 till 15.11.2011. The enquiry revealed that bogus/forged tender papers were submitted and used in the tender process on behalf of certain firms for completing the tender proceedings by the suspect officials in conspiracy with the firms –
Finding of the court :
High Court set aside conviction on the ground that there was a breach of the mandatory safeguard of the P.C. Act in as much as that the first stage of the investigation was contrary to the provisions of the P.C. Act. But the court was of the view that it (High Court) did not consider the other question whether the said breach caused prejudice to the accused in the matter of' his trial. The Court reversed the judgment of the High Court on being satisfied no prejudice has been caused to the accused - In the facts of the case at hand, applicant is not a public servant and there is no pleadings with regard to prejudice caused to him or miscarriage of justice on account of the enquiry being conducted by an officer of the rank below that of the Deputy Superintendent of Police/Inspector. The assertion of the C.B.I. that an order to that effect was obtained from the Special Judge to entrust the investigation to a officer of the rank of Sub Inspector has not been denied. Even otherwise the applicant has not alleged any prejudice or illegality in the course of investigation that brought about miscarriage of justice or caused prejudice to the applicant –
Result : Appeal dismissed
ORDER :
Suneet Kumar, J.
1. Heard Sri Kuldeep Saxena, learned counsel for the applicant, Sri Gyan Prakash, Assistant Solicitor General of India appearing for the CBI assisted by Shri Sanjay Kumar Yadav, Advocate and perused the record.
2. Applicant by the instant petition under Section 482 of Code of Criminal Procedure, 1973[Cr.P.C.], seeks quashing of the charge sheet dated 29 August 2014 and cognizance order dated 16 December 2014, passed in Criminal Misc. Case No. 10 of 2014, under Sections 120-B read with sections 409, 420, 468 & 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988[P.C. Act], and substantive offence under Sections 409, 420, 468 & 471 IPC arising from the F.I.R. No. RC No. 1202013A0017 pending in the court of Special Judge, Anti Corruption, CBI, Ghaziabad.
3. The facts giving rise to the petition, briefly stated, is that pursuant to an order dated 15.11.2011, passed by this Court at Lucknow, in Writ Petition Nos. 3611 (MB) of 2011 (PIL), 3301 (MB) of 2011 (PIL) and No. 2647 (MB) of 2011 (PIL), inter alia, directed Central Bureau of Investigation[CBI] to conduct a preliminary enquiry in the matter of execution and implementation of the National Rural Health Mission (for short 'NRHM') and utilization of funds at various levels in the entire State of Uttar Pradesh commencing 2005-2006. In compliance thereof, on 31 January 2013, CBI registered a preliminary enquiry against the officers of Health and Family Welfare Department of District Moradabad, and unknown private persons. The enquiry was conducted by the Additional Superintendent of Police, CBI, ACB, Ghaziabad, for the period 2005-06 till 15.11.2011. The enquiry revealed that bogus/forged tender papers were submitted and used in the tender process on behalf of certain firms for completing the tender proceedings by the suspect officials in conspiracy with the firms. The enquiry further revealed that most of the purchases under National Blindness Control Programme related to NRHM Scheme, at district Moradabad, were made by three sister concerns. The forged and bogus bids were submitted and used by the suspected accused to show artificial competitive rates.
4. The enquiry, prima facie, exposes Dr. N.K. Gupta, Dr. R.K. Saxena, Dr. S.K. Malik, the then CMOs/DPO, Moradabad and Dr. S.K. Singh, the then DPM and officiating CMO Moradabad, in criminal conspiracy with co-accused Narendra Kumar Jain, Prop. M/s. Jain Medical Hall, Moradabad, applicant Vivek Jain, Prop. M/s. Kapil Medical Agencies, Moradabad, and other unknown persons of having committed offence regarding purchase of medicines during the period 2008-09, 2009-10 & 2010-11 from NRHM funds. The conspirators are alleged to have violated the norms and guidelines for purchase of medicines at exorbitant rates, prepared and utilized forged documents and by abusing their official position have caused loss at Rs. 4,56,484/- to the government and corresponding gains to themselves.
5. On the strength of preliminary enquiry, F.I.R. came to be lodged on 4 July 2013, on the complaint filed by Additional Superintendent of Police, CBI, ACB, Ghaziabad. After investigation, a report (charge sheet) under Section 173 of Cr.P.C. was submitted on 4 July 2013, against the applicant and other co-accused. It is alleged in the charge sheet that applicant, owner of M/s. Kapil Medical Agencies, Moradabad, supplied medicines to CMO Moradabad, during 2007-2011 with respect to National Programme for Control of Blindness and was ultimate beneficiary. Investigation further revealed that medicines worth Rs. 1,61,257/- was purchased after expiry of the tender period from the firm of the applicant without getting permission from the competent authority. Payments thereof was also made. The investigation shows that bogus tenders were submitted by the applicant to show competitive rates of the firms. In the said fraud and forgery, involvement of wife of the applicant has also been found.
6. Special Judge, Gha
