HIGH COURT OF MADHYA PRADESH : JABALPUR MISCELLANEOUS CRIMINAL CASE NO.2526/2010 Ashok Nanda, son of Shiv Ram Nanda, aged about 52 years, resident of 714, Shakti Nagar, Govindpura, Bhopal (M.P.) ... Petitioner vs. (1) State of Madhya Pradesh through, Special Police Establishment, Lokayukt, Bhopal (M.P.) (2) Sushil Kumar, resident of EWS-13, Kotra Sultanabad, Bhopal (M.P.) ...Respondents ----------------------------------------------------------------------------------- Shri Surendra Singh, Senior Advocate with Shri Manish Mishra, Advocate for the petitioner. Shri Aditya Adhikari, Special Public Prosecutor, for the respondent no.1/SPE (Lokayukt). None for the respondent no.2, though served. ----------------------------------------------------------------------------------- ORDER
(13.01.2011) This is a petition, under Section 482 of the Code of Criminal Procedure (for short 'the Code') for having the FIR leading to registration of Crime No.11/2010 at SPE (Lokayukt), Bhopal, in respect of the offences punishable under Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the IPC, so far at it relates to the petitioner, quashed.
2. The FIR, in turn, is based on a complaint made by respondent no.2 namely Sushil Kumar on or before 29.01.2010. Recitals of the complaint may be summarized thus -
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MISCELLANEOUS CRIMINAL CASE NO.2526/2010 In the year 2006-2007, Department of Health, Government of M.P. through Laghu Udyog Nigam was required to purchase drug kit 'A', drug kit 'B' and the drug kits to be used for Asha workers. Co-accused Dr. Rajesh Rajora, the then Health Commissioner, Dr. Yogiraj Sharma, the then Director of Health, some officers of the M.P. Laghu Udyog Nigam and the petitioner, who was the proprietor of M/s Malwa Drug House, a local pharmaceutical firm, hatched a conspiracy in pursuance of which drug kits were purchased at excessive rates and further, an amount of Rs.9.50 crores was paid as advance against Rs.11.99 crores, the total value of drug kits to be supplied whereas payment of such a huge amount even before supply of the kits, was apparently a serious financial irregularity.
3. While contending that continuance of investigation against the petitioner is an abuse of process of the Court, learned Senior Counsel has invited attention to the following facts -
(i) The complainant/respondent no.2 is a journalist by profession.
(ii) The petitioner was not at all involved in supply of the drug kits to the Department.
(iii) M/s Malwa Drug House had ceased to exist with effect from 1.4.2003 consequent to its merger in M/s Hindustan Institute of Pharmakon Ltd., a company registered under the Companies Act, 1956.
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MISCELLANEOUS CRIMINAL CASE NO.2526/2010
(iv) As per the conditions specified in the Notice Inviting Tender, only public sector companies were eligible to participate in the tender process.
(v) The contract to supply the drug kits was awarded to M/s Karnataka Antibiotics and Pharmaceuticals Ltd. Bangalore, a public sector company (hereinafter referred to as 'M/s KAPL') and the amount of Rs.9.50 crores was paid to the company as 30% of the total price of the kits to be supplied as per the tender conditions.
(vi) Two supply orders were placed and the drug kits were supplied as per the requirements. However, in view of State Government's disinclination to pay the remaining amount, M/s KAPL moved this Court by filing a writ petition under Article 226 of the Constitution of India.
4. According to the learned Senior Counsel, the events subsequent to supply of the drug kits also ruled out complicity of the petitioner in the matter. For this, reference has been made to the contents of -
(a) order-dated 20.3.2010, passed in W.P. No.8537/2009 by a Division Bench of this Court, directing the State Government to pay a sum of Rs.10 crores to M/s KAPL as against its claim of Rs.22,16,51,642/- and
(b) order-dated 6.4.2010, passed by the Supreme Court in SLP (Civil) No.10479/2010, declining to interfere with the order-dated 20.3.2010 (supra).
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MISCELLANEOUS CRIMINAL CASE NO.2526/2010 It has also been pointed out that neither in reply to the Writ Petition nor in the Special Leave Petition, any role attributable to the petitioner or M/s Malwa Drug House or M/s Hindustan Institute of Pharmacon Ltd in supply of the drug kits, was highlighted. He is further of the view that sequence of events undoubtedly suggests that the petitioner was maliciously named in the FIR with an ulterior motive due to some personal grudge.
5. While opposing the prayer, learned Special Public Prosecutor has submitted that the case registered in the year 2010 is yet to be investigated into fully. According to him, at this juncture, it would be premature to conclude that the petitioner was not, in any way, involved in the offences. To buttress the contention, reliance has been placed on the decision of the Apex Court in State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540, which is an authority for the proposition that, for quashing of proceedings under Section 482 of the Code, where the investigation was not completed, it would be impermissible for the High Court to look into the materials, the acceptability of which is essentially a matter for trial and further, the allegations of mala fides against the petitioner are inconsequent.
6. Learned Special Public Prosecutor has pointed out that search of the premises, belonging to Dr. Yogiraj Sharma and other related persons, conducted by the Income Tax Authorities, has revealed that the petitioner had acted as one of the close associates of Dr. Yogiraj Sharma in amassing huge wealth and acquiring properties disproportionate to his known sources of income by taking recourse to large scale corruption in procurement of drugs to be supplied to the various health centers in the State. He has also drawn attention to the fact that the tender conditions were relaxed subsequently so as to enable the supplier M/s KAPL to include drugs, manufactured :: 5 ::
MISCELLANEOUS CRIMINAL CASE NO.2526/2010 by other pharmaceutical companies or firms in the drug kits subject to guarantee as to their genuineness. In the light of these facts and circumstances of the case, he has contended that a reasonable suspicion exists as to involvement of the petitioner in supply of the drug kits but no further evidence could be collected in this regard due to non co-operation of M/s KAPL.
7. In response, learned Senior Counsel has pointed out that during a considerable period of more than 11 months, the prosecution agency has not been able to collect any cogent evidence suggesting complicity of the petitioner in the offences. In his opinion, case of the petitioner is covered by category (iii) as enumerated in R. P. Kapur v. State of Punjab AIR 1960 SC 866 Reference has also been made to the following precedents explaining scope and ambit of interference under Section 482 of the Code -
(i) Papular Muthiah v. State (2006) 7 SCC 296 wherein it has been reiterated that power under Section 482 overrides other provisions of the Code and cannot be exercised in violation/contravention of a statutory power created under any other enactment.
(ii) Baijnath Jha v. Sita Ram AIR 2008 SC 2778, wherein it was pointed that Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse.
(iii) M. N. Ojha v. Alok Kumar Srivastav AIR 2010 SC 201 wherein it has been observed that normally, the High Court would not intervene in the criminal proceedings at the preliminary stage/when the investigation/enquiry is pending ....... But, at the same time, the High Court cannot refuse to exercise its :: 6 ::
MISCELLANEOUS CRIMINAL CASE NO.2526/2010 jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding.
(iv) S. Khushboo vs. Kanniammal & Anr. AIR 2010 SC 3196, wherein the following observations made by the Apex Court in Shakson Belthissor vs. State of Kerala & Anr. (2009) 14 SCC 466 were quoted with approval -
"One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint."
8. Adverting to the facts of the instant case, it may be observed that although, the corresponding recitals of the FIR do disclose offences yet, the investigating agency has not been able to collect any cogent evidence during a considerable period of nearly one year despite the fact that offences relate to the financial year 2006-07.
The relevant observations made in R.P. Kapur's case (ibid), that was also referred to in Saroj Kumar Sahoo's case (above), may be reproduced as under -
Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are:
(i) ... (ii) ...
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to :: 7 ::
MISCELLANEOUS CRIMINAL CASE NO.2526/2010 prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence, which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question.
9. Accordingly, the ratio in Saroj Kumar Sahoo's case (above) is not applicable to the case against the petitioner in view of the ab- sence of incriminating evidence.
10. As reaffirmed in M. N. Ojha's case (supra), saving of inherent power of the High Court in criminal matters is intended to achieve a salutary public purpose "which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or per- secution and if such power is not conceded, it may even lead to in- justice". Moreover, as observed in Baijnath Jha's case (above), it would be an abuse of the process of the Court to allow any action which would result in injustice and prevent promotion of justice and further, in exercise of the powers the Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these pro- ceedings would otherwise serve the ends of justice. This apart, the proceedings relatable to a particular accused named in the FIR may also be quashed under the inherent powers (See. Reshma Bano v. State of U.P., (2008) 5 SCC 791).
11. However, taking into consideration the peculiar facts and cir- cumstances of the case in totality, mere fact that the allegations lev- elled against the petitioner have not been found to be substantiated so far, would not afford a ground to quash the FIR or a part thereof. Still, we are of the opinion that continuance of investigation as :: 8 ::
MISCELLANEOUS CRIMINAL CASE NO.2526/2010 against the petitioner deserves interference under the inherent powers.
12. In the result, the petition stands allowed in part and it is directed that the recitals of the FIR, so far as they relate to the petitioner, shall not be acted upon and he shall not be treated to be an accused on the basis of existing materials. However, nothing contained herein shall preclude the Investigating Agency from carrying out further investigation into the offences and whereupon such an investigation, evidence, oral or documentary is collected suggesting involvement of the petitioner, the Agency shall be at liberty to take action against him in accordance with law.
Petition partly allowed.
(R.C. MISHRA) (SMT. VIMLA JAIN) JUDGE JUDGE 13.01.2011 13.01.2011