Bombay High Court
Dr. Sujay Radhakrishna Vikhe ... vs Arun Punjaji Kadu And Others on 5 May, 2021
Bench: Ravindra V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.527 OF 2021
WITH
CRIMINAL APPLICATION NO.1027 OF 2021
IN WP/527/2021
ARUN PUNJAJI KADU AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
WITH
CRIMINAL APPLICATION NO.1024 OF 2021
IN WP/527/2021
RATHI SUMIT RAMCHANDRA AND OTHERS
VERSUS
ARUN PUNJAJI KADU AND OTHERS
WITH
CRIMINAL APPLICATION NO.1028 OF 2021
IN WP/527/2021
DR.SUJAY RADHAKRISHNA VIKHE PATIL
VERSUS
ARUN PUNJAJI KADU AND OTHERS
...
Advocate for the Petitioners in WP : Ms.Pradnya S. Talekar
Chief Public Prosecutor for the Respondents / State : D.R. Kale
Advocate for the Applicants in 1024/2021 : Shri S.S. Thombre
Advocate for the Applicants in 1028/2021 : Shri Shirish Gupte, Senior
Advocate h/f Shri A.D.Ostwal and Shri K.D. Jadhav
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 05th May, 2021
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Per Court :-
1. On 26.04.2021, we had passed a common order in this
Criminal Writ Petition and Criminal Suo Moto PIL No.02/2021, under
paragraphs 25 to 31, which read as under :-
"25. Ms Talekar, the learned Advocate, who was watching this
proceeding, has mentioned a Criminal Writ Petition filed
through her office today, 26.04.2021, titled as 'Criminal
PIL Petition No.527/2021' (Arun Punjaji Kadu and three
others Vs. The State of Maharashtra and others).
Considering her request, the said petition, by consent,
was called for.
26. The learned Chief Public Prosecutor submits that no
orders be passed in this petition today since the
petitioners are active politicians.
27. It appears to us that a grievance has been made against a
serving Member of Parliament from the Ahmednagar
Constituency, namely Dr. Sujay Vikhe that he has
procured 10,000 Remdesivir injections secretively and
has transported them to Ahmednagar and has indulged
in distributing these 10,000 Remdesivir injections to the
public at large as a political stunt, which is recorded in
two videos.
28. In view of the above, we are refraining from passing a
specific order today as to whether this proceeding could
be registered as a Criminal PIL. We record the
appearance of the learned Chief Public Prosecutor on
behalf of all the respondents.
29. Ms. Talekar submits that, these 10,000 Remdesivir
injections have been allegedly transported illegally
through a Chartered flight, purportedly by Dr. Sujay
Vikhe Patil, a serving M.P. from the Ahmednagar
Constituency and photographs have been produced in
the petition paper-book as regards their distribution.
She, therefore, submits, as this is being done illegally
and unauthorizedly, that the respondents need to take
immediate action for confiscating such injections which
are in the custody of Dr. Sujay Vikhe Patil.
30. We find that, a serious allegation has been made in this
petition. Until further orders, the respondents would be
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at liberty to investigate and take effective steps as they
would have normally taken in the event of the
occurrence of any such incident and do the needful as
'the call for duty' demands of them. They shall preserve
the confiscated Remdesivir vials, if any, as per the
medical protocol until further orders.
31. List the Criminal Suo-Moto Public Interest Litigation
No.02 of 2021 on 03.05.2021 at 02:30 p.m. We are
segregating Criminal Writ Petition No. 527 of 2021 filed
by Ms. Talekar and we are posting the same on
29.04.2021 at 02:30 p.m."
2. On 29.04.2021, we have passed an order, below paragraphs
12 to 23, in the present Criminal Writ Petition, which reads as under :-
"12. We have perused the annexures from page Nos.34
to 40 and 46 to 50. These annexures contain the press
reporting/ screen shots of purported video recording
done by the Member of Parliament Shri Sujay Vikhe Patil
himself while flying in the chartered aircraft. From the
said printout, it is made to believe that an undisclosed
number of Remdesivir injections have been procured by
the concerned Member of Parliament.
13. The petitioners have filed an additional affidavit
dated 28.04.2021 duly sworn and affirmed by petitioner
No.4 wherein, the news report published in daily
"Sakal", Ahmednagar main edition, dated 28.04.2021 is
annexed, which indicates that the Member of Parliament
Dr.Sujay Vikhe Patil admits that he traveled through the
chartered aircraft from Delhi and carried Remdesivir
injections with him. He does not spell out the number of
vials that he had procured. 300 injections were handed
over by him to the District Government Hospital and
some injections were handed over to the Shirdi Hospital,
which is known as Shri Saibaba Trust's hospital. The
Deputy Chief Executive Officer of the Sansthan has
thanked him in writing. He had prepared the video
recording by himself and he had procured the said
injections to save the lives of the people of Ahmednagar.
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He further admits of having acquired those injections by
using his personal connections. Several boxes were
unloaded at the Shirdi Airport and there has been video
recording of the same as well. In the same news item,
the concerned Member of Parliament has further stated
that he has preserved all the records of having purchased
the injections and he has denied that he had purchased
10,000 injections, contrary to what appears in his video
clippings uploaded by him.
14. The press reports placed on record by the
petitioners in the additional affidavit at page 62, printed
in daily "Loksatta" dated 27.04.2021, indicates that the
correspondent has reported the visit of the concerned
Member of Parliament to the office of the District
Collector. The press conference was then held in the
premises of the District Collector's office in which, the
District Collector himself addressed the correspondents.
The District Collector states in the said address that the
concerned Member of Parliament has sought permission
to start the covid hospital in the hospital at Vadgaon
Gupta, Vilad Ghat, Ahmednagar, which is a "shut down"
hospital. The District Collector had advised the
concerned Member of Parliament that the injections and
oxygen cannot be supplied through the District
Government Hospital and the said injections can be
purchased directly from the manufacturers.
15. The learned Chief Public Prosecutor has placed
before us the communication/ report received by him
dated 28.04.2021 from the District Collector,
Ahmednagar along with 48 pages of documents. The
compilation of the report, tied loosely, is taken on
record and marked as "X-1" collectively, for
identification. The said report is prepared by the District
Collector, which is at page Nos.1 and 2, in which the
District Collector has stated in paragraphs 2 to 6 as
under :-
"2. It is respectfully submitted that present
respondent No.6 vide communication dated 08.04.2021
has informed to the Dean, Dr.Vitthalrao Vikhe Patil
Foundation's Dr.Vikhe Patil Memorial Hospital and
Medical College, Viladghat, Ahmednagar (herein after
referred as the hospital) to reserve 200 beds along with
essential medical equipments, staff and medical services
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immediately for the treatment of COVID affected
patients in the Dr.Vikhe Patil Memorial Hospital and
Medical College, Viladghat, Ahmednagar. In response to
the same communication dated 08.04.2021 the Dean of
the said hospital vide communication dated 08.04.2021
has informed to the present respondent that they are
taking every steps and efforts to make available 200 beds
for the treatment of COVID affected patients in their
hospital. However, the Dean and Medical Superintendent
of the said hospital has requested to make available and
provide the injections such as Remedisivir, Merupenum
and other such injections, PPE kits, ventilators, supply of
oxygen and other like demands for the better treatment
of COVID affected patients. The hospital administration
has assured that after compliance of the above said
demands and facility the treatment of the COVID
affected patients will become more easier and
convenient.
3. It is further respectfully submitted that the present
respondent vide communication dated 10.04.2021 after
taking into considering the outbreak of COVID-19
pandemic and the prevailing situation has assured that
the necessary directions in respect of the supply of
oxygen, the ventilators will be given to the concern
authorities/ suppliers. In so far as the special medicines
such as Remedisivir and etc are concerned it has been
informed to the hospital administration that the Food
and Drugs Administration will inform to concern
supplier for making available the said special medicines
in the medical store of the hospital. The present
respondent No.6 with this assurance has further directed
to the hospital administration to reserve 200 beds for the
treatment of COVID affected patients in their hospital
with immediate effect.
4. Vide communication dated 15.04.2021 the
hospital administration has urged that there is shortage
of Remdesivir injections and because of the same the
COVID 19 affected patients are facing the instant
problems and medical complications. On this backdrop
the hospital administration has requested to provide
Remdesivir injections immediately and it has shown
their willingness that they are ready to deposit the
necessary charges in the concern bank. The present
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respondent after considering the said demand of
Remdesivir injections and medical emergency has
directed Civil Surgeon to procure the said medicines
immediately and further directed that the required funds
be taken from the institute/ hospital administration and
place the order.
5. Accordingly the hospital administration has
deposited the requisite amount for total 1700 Remdesivir
injections through RTGS into the account of
Administrative Officer, General Hospital, Ahmednagar.
The purchase order came to be placed by Civil Surgeon
before the concern supplier i.e. M/s Pharma Deal.
Thereafter the 1700 Remdesivir injection has been
supplied by M/s Pharma Deal to the Civil Surgeon and
the same have been thereafter provided/ supplied to the
said hospital through Civil Surgeon.
6. It is respectfully submitted that the Food and
Drugs administration has inspected the stock of
Remdesivir injections on 27.04.2021 in the said hospital
and same found to be appropriate and correct in
consistence with the supply of the said injections from
Civil Hospital. It is further respectfully submitted that
the hospital administration vide communication dated
28.04.2021 has submitted the detail list of distribution
of Remdesivir injections."
16. Considering the contents of the report reproduced
herein above, we find that the District Collector
permitted the Civil Surgeon, Ahmednagar to place an
order directly with the supplier M/s Pharma Deal, 1313,
Sadashiv Peth, Opposite Bharat Natya Mandir, Pune-
411030 (email : [email protected]). Two receipts
annexed to the report of the District Collector indicates
that the Civil Surgeon placed an order with M/s Pharma
Deal and paid an amount of Rs.7,56,000/- and
Rs.18,14,4000/-. Page 16 of the report indicates that
Dr.Vikhe Patil Medical Store, Vilad Ghat, Ahmednagar,
has credited an amount of Rs.25,70,400/- in the account
of the Civil Surgeon, Ahmednagar. Further receipt
indicates the payment made by Dr.Vikhe Patil Medical
Store to the Civil Surgeon for the said amount. Issue
would be, whether, this is a legally accepted procedure?
17. This makes one thing clear that these 1700
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Remdesivir injections, which the District Collector
solemnly states to have been purchased by following
legal procedure, have been supplied by the firm from
Sadashiv Peth, Pune to the Civil Surgeon and these
injections/ boxes have not taken the air journey through
the chartered aircraft from Delhi to Shirdi.
18. Though we are not forming a final opinion, prima
facie, we are of the view, considering the press
conference allegedly held in the premises of the District
Collector by he himself and the receipts placed before us
and that these injections have not taken the route from
Delhi to Shirdi, the District Collector is attempting to
protect the concerned Member of Parliament by holding
the press conference in his premises to make the
statement that these are injections that have come from
Pune and most of them have been handed over to
Dr.Vikhe Patil Medical Store. The question, therefore, is
as regards, whether, the concerned Member of
Parliament Dr.Sujay Vikhe Patil carried a different set of
boxes containing Remdesivir injections through the
chartered aircraft from Delhi to Shirdi and as to where
are these boxes? Whether, the video recordings and
photographs uploaded by the said Member of Parliament
during his air journey as well as on landing at the Shirdi
Airport and distributing the said injections by holding a
get together, are truthful or not and whether, they need
to be investigated.
19. Ex-facie, considering the role played by the
District Collector, Ahmednagar Dr.Rajendra B. Bhosale,
unless proven otherwise, we do not think that we would
any confidence in his role in the investigation. The
learned Chief Public Prosecutor submits that the District
Collector may be given an opportunity to explain his
position and an adjournment of around three days may
be granted.
20. In view of the above, we are listing this petition on
03.05.2021 (Monday) at 02:30 PM.
21. In the meanwhile, we direct the Principal
Secretary, Home Department, State of Maharashtra,
Mumbai to ensure that the details about the aircraft
landings at the Shirdi Airport in connection with private
aircraft / chartered flights in between 10.04.2021 to
25.04.2021 be preserved and especially, preserve the
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video recordings through CCTV footage as regards the
cargo consignment, since the petitioners allege and also
the concerned Member of Parliament purportedly states
in his video recording that he landed in the chartered
aircraft at Shirdi Airport and unloaded boxes of
Remdesivir injections. We make it clear that we will not
tolerate any excuse about any CCTV footage being lost
or loss of any details of the chartered/ private aircraft
landings and take off. So also, the District
Superintendent of Police, Ahmednagar shall trace out
the boxes containing Remdesivir injections, which
admittedly were unloaded by the said Member of
Parliament at the Shirdi Airport. A report shall be placed
before us on 03.05.2021 at 02:30 PM.
22. The learned Chief Public Prosecutor would convey
this order to respondent Nos.2, 4 and 5 and would place
necessary details before this Court on 03.05.2021.
23. Since this lengthy order has been dictated in open
court at around 04:00 PM, the parties shall note it's
contents and act on the uploaded copy of this order."
Criminal Application No.1024/2021
3. Criminal Application No.1024/2021 has been filed by three
applicants, who claim to be close relatives of patients, who have suffered
from Covid-19 infection. Remdesivir injections donated to the Covid
Facility, namely, Pravara Rural Hospital, Loni, which is a Vikhe Patil
Foundation Trust's hospital, were utilized for saving the lives of such
patients. These applicants desire audience in the present Criminal Writ
Petition as interveners. In view of our order dated 29.04.2021 and for the
reasons recorded therein, rejecting an identical Criminal Application
No.1019/2021, this Criminal Application No.1024/2021 stands rejected
for the same reasons.
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Criminal Application No.1027 of 2021
4. The petitioners herein have preferred Criminal Application
No.1027/2021 seeking amendment to the present petition. The reasons
for the amendment are that there are several other politicians in the State
of Maharashtra, details of which are mentioned in the proposed
paragraphs, who have also allegedly indulged in acts of unauthorizedly
procuring remdesivir injections and distributing them in their
constituencies. A prayer is also proposed by which the petitioners seek an
order of this Court to constitute a special investigation team, chaired by a
retired Judge of the High Court, to enquire into illegal procurement and
distribution of remdesivir injections by politicians in the State of
Maharashtra. However, it is frankly stated that a police complaint against
such politicians is yet to be filed by the present petitioners, meaning
thereby, that the process of law for embarking upon investigation, has not
been put in motion. The learned advocate for the petitioners submits to
the extent of the proposed amendment in this Criminal Application that
these petitioners would register complaints against the concerned
politicians in the appropriate Police Stations.
5. Firstly, we need not take cognizance of the above said
grievance at this stage since the complaint, which is the starting point of
investigation, is yet to be filed. Secondly, these petitioners desire to
register complaints in the concerned Police Stations which naturally would
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be inquired into in accordance with the provisions of the Code of Criminal
Procedure and, therefore, the writ jurisdiction of this Court need not be
exercised to direct the concerned Police Stations, before the filing of such
complaints, to conduct investigations properly. It is elementary that police
authorities are duty bound to conduct investigations in accordance with
the procedure laid down in law.
6. It is now submitted that this Criminal Application
No.1027/2021 seeking amendment is sought to be withdrawn by the
petitioners. As such, the said application is disposed off as withdrawn.
Criminal Writ Petition No.527/2021
7. Insofar as this Writ Petition is concerned, filed on 26.04.2021,
based on the complaint addressed to the Superintendent of Police dated
25.04.2021, the petitioners have put forth prayer clauses A, B, C and D,
which read as under :-
"A. To direct the respondents to register FIR against Dr.Sujay
Vikhe Patil and other unknown persons for procuring
and distributing Remdesivir injections without authority/
license, by issuing a writ of mandamus or any other writ,
order, direction as the case may be.
B. To direct the respondents to conduct detailed inquiry as
to how many Remdesivir injections were procured,
distributed by Dr.Sujay Vikhe Patil, from whom it was
purchased and at what price and submit its detailed
report, pending hearing and final disposal of this
petition.
C. To direct the respondents to confiscate the stock of
Remdesivir injections available with Dr.Vikhe Patil and
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handover the same to the State Government, pending
hearing and final disposal of this petition.
D. To direct the respondents to collect the samples of
Remdesivir injections procured by Dr.Vikhe Patil and
send it for Chemical Analysis for resting its genuineness
and submit its report, pending hearing and final disposal
of this petition."
8. The orders passed by us earlier which have been reproduced
for the sake of brevity and for reference, would clearly indicate that we
were not getting drawn into the controversy as to whether, the proposed
accused, who is the Member of Parliament from the Ahmednagar
constituency, is hijacking the investigation or not. Our serious concern, for
obvious reasons, taking into account the unprecedented situation created
by the Wuhan virus onslaught, taking away precious lives of the citizens of
this country, was to ensure that remdesivir injections are not sold at
premium/jacked up prices and are not distributed as largesse to appease
the voters in a particular constituency. We were concerned with these
injections being put to proper use for treating those patients who
desperately needed them under medical advise. In this context, we had
directed the respondents to investigate and trace out the remdesivir
injections. When we, prima facie, noticed that the District Collector of
Ahmednagar was not appearing above board and responsible newspapers
having reported that he conducted a press conference in his office
practically giving a clean chit to the proposed accused, that we expressed
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our apprehension of being unable to trust him with the investigation.
9. The learned counsel for the petitioners has drawn our
attention to the contents of the memo of the petition in which it has been
specifically stated that Dr.Sujay Vikhe Patil had released two videos
recorded by him, on the social networking sites, indicating that he had
procured 10,000 remdesivir injections from pharmaceutical companies
with whom he had friendly relations. It is also averred that 150 injections
were donated to the Saibaba Sansthan Hospital, Shirdi and the
Government Hospitals and others were donated to the private hospital at
Pravara, which happens to be the facility run by his own Vikhe
Foundation. It is further averred in the petition that Dr.Vikhe Patil may
have purchased these injections from the black market and there is a high
possibility that these could be spurious injections being pumped in the
market. An apprehension was also voiced that he must be hoarding such
injections to be sold in the black market and to be used to enhance his
political image and achieve political gains.
10. An additional affidavit is filed by one of the petitioners on
28.04.2021 with an attempt to clear the air as regards the contentions of
the learned Chief Public Prosecutor that this petition has been filed by
politicians and the Court is being used for self serving political purposes. It
is then reiterated that Dr.Vikhe Patil has shown boxes of remdesivir
injections in his video claiming that they are 10000 injections and that this
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video is available on YouTube at the link https://youtu.be/1qsP2uAxRdg.
An apprehension is then voiced that the injections were procured by
Dr.Vikhe Patil, not by adopting a legal path and were infact procured from
a manufacturer situated in Chandigarh, who has not been approved by the
Government of India to be an authorized provider of remdesivir
injections.
11. A rejoinder has been filed by these petitioners, to the affidavit
filed by respondent No.6/ District Collector Dr.Bhosale, attempting to
make out a case of forgery and manufacturing of documents by the
District Collector so as to protect Dr.Vikhe Patil. Based on such pleadings
set out in the rejoinder dated 03.05.2021, it is canvassed that this Court
will have to resort to a fact finding exercise so as to conclude as to
whether, the Ahmednagar District Administration, inclusive of the Police
Department, was manufacturing documents to protect Dr.Vikhe Patil.
Reliance is placed on the judgment delivered by the Honourable Supreme
Court in the following cases :-
(a) Vishwanath Chaturvedi vs. Union of India and others, (2007)
4 SCC 380.
(b) E. Sivakumar vs. Union of India and others, (2018) 7 SCC
365.
(c) Dhananjay Kumar vs. State of Chhattisgarh, AIR 2020 Chh 36
(FB).
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(d) Pareshkumar Dhirajlal Dhanani vs. State of Gujarat, WP (PIL)
No.54/2021, decided on 20.04.2021 by the Gujrat High Court.
12. It is canvassed, by relying on the above reports, that firstly,
this Court can direct the registration of an FIR and secondly, direct a
superior investigating agency in the State of Maharashtra or appoint a
retired Judge of this Court, to conduct an enquiry, as this could be termed
as a "remdesivir scam".
13. There is no dispute that these petitioners have addressed the
District Superintendent of Police, Ahmednagar, the District Collector,
Ahmednagar and the Police Inspector, Rahuri Police Station on 25.04.2021
for registering an FIR against Dr.Vikhe Patil. It is not disputed that these
petitioners have not tendered a specific information report to the Police
Station, Rahuri for seeking registration of an offence/ FIR against Dr.Vikhe
Patil under Section 154 of the Cr.P.C.. The petitioners cannot dispute that
an information report has to be filed in a police station and the Station
House Officer makes a noting of the same in the station diary and it is
within the purview of the SHO to register an FIR keeping in view the law
laid down by the Honourable Apex Court in the case of Lalita Kumari vs.
Government of U.P. and others, (2014) 2 SCC 1 (a Five Judge Bench).
14. We are circumspect as to the prayer of the petitioners seeking
a direction for registration of an FIR within 12 hours of a common
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complaint tendered to the Superintendent of Police, Ahmednagar, the
District Collector, Ahmednagar and the Police Inspector, Rahuri Police
Station, considering paragraph 8 of the said complaint wherein a
reference is made to a Suo Moto Criminal PIL No.2/2021 in which, we
have passed an order on 22.04.2021. We have no doubt that we are
concerned with the lives of people to be saved in this Covid-19 pandemic
and an appropriate distribution and utilization of remdesivir injections.
Every human life is precious and needs to be protected. We have passed
orders earlier directing registration of offences against persons who have
indulged in black marketeering of remdesivir injections. We were
concerned with every vial of remdesivir injection being utilized for saving
lives and we have no hesitation in observing that any person, be he a man
from the lowest strata of the society or howsoever influential public
figure/ politician he may be, would not be above the law. If on
investigation, it is noticed that Dr.Vikhe Patil has committed an act which
can be termed as being an offence, he would not be immune to
punishment and will not be treated above the law. The law would not
permit him to manipulate the investigation for extricating himself from
such situation.
15. It is quite apparent, pursuant to the effect of our orders, that
1700 remdesivir injections are purportedly shown to be accounted for. The
petitioners expect this Court to monitor the investigation. In Panchabhai
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Popotbhai Bhutani and others vs. State of Maharashtra, 2010 (1) Mh.L.J.
421 (Full Bench), the learned Full Bench of this Court, in paragraph 46,
has observed that there can be cases wherein the time lag involved in
commission of the crime, intimation to the Police and it's inaction in terms
of Section 154 of CrPC, make it difficult for a complainant or an aggrieved
person including a victim, to first take recourse to the provisions of
Section 154(3) and then invoke the jurisdiction of the Court under Section
156(3). Such cases could be the ones where there is likelihood of the
evidence being destroyed and the delay in investigation may prove fatal to
the case of the prosecution or the complainant. In such exceptional
circumstances, it cannot be said that any person who has approached the
Police under Section 154 for registration of information of commission of
a cognizable offence and the police fails to act with promptitude, is
debarred from approaching the Court directly under Section 156(3).
16. Considering the pleadings, it is obvious that, on the one hand,
the petitioners allege, on the basis of the videos uploaded, that the
concerned M.P. had traveled in a chartered flight with 10000 vials of
remdesivir injections. On the other hand, the reports X-1, X-2 and X-3
submitted before us, indicate that the Civil Surgeon had deposited the
requisite amount with Pharm Deal at Pune for purchasing 1700 vials.
17. We find from the facts of the case in hand that two videos
were purportedly uploaded by Dr.Vikhe on 24.04.2021 and the complaint
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was addressed to the District Superintendent of Police on 25.04.2021 at
18:05 hours. This petition was filed on 26.04.2021, before noon. The
petitioners expect that we should consider every sheet of paper placed
before us, by the litigating parties, including those filed by Dr.Vikhe
seeking intervention, threadbare. Considering the settled law on the scope
of exercise of our writ jurisdiction, in dealing with laxity on the part of the
investigating officers investigating into a complaint, we need to permit the
police authorities to deal with the complaint strictly in accordance with
the provisions of the CrPC as has been held in Lalita Kumari (supra). If the
informants are aggrieved by the manner of investigation or if they have
material available to form a view that the police authorities are protecting
Dr.Vikhe and are sheltering him by applying a gloss over the acts which he
has committed, the informants can always knock the doors of the Court.
But, presuming that the investigation agency is not going to investigate
properly and passing orders in our writ jurisdiction on apprehension may
not augur well in criminal jurisprudence and the justice dispensation
system. We do not intend to do so in the backdrop of the complaint having
been filed at 18:05 hours on 25.04.2021 and this petition being filed
before noon on 26.04.2021.
18. As such, we find it pragmatic not to hastily come to a
conclusion or become judgmental in view of the time span in lodging of
the first complaint and the filing of this writ petition. Orders directing
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registration of an FIR are normally passed after the Court is convinced
that the legal remedies available to the complainant have been exhausted
and the grievance of the complainant is not redressed. An order directing
that the investigation be taken away from a concerned police station so as
to be handed over to any other I.O. or the State C.I.D. or any other higher
investigating agency, can be passed only after this Court is convinced,
pursuant to the investigation, that the I.O. is soft peddling on the
complaint and the investigation is merely a farce.
19. The learned counsel submits, on instructions, that the
petitioners would be preparing a detailed complaint considering the
material that has come on record before this Court in this proceeding, for
registering offences, with a specific police station, against Dr.Vikhe Patil
and also against such bureaucrats/ police officers who may have indulged
in forgery of documents that were filed in this proceeding. We are not
expressing any opinion on these issues as (a) the police authorities are
capable of resorting to Section 161 of the CrPC for the recording of
additional statements considering that the earlier complaint dated
25.04.2021 was addressed to the Superintendent of Police, Ahmednagar
and the same could be investigated into by the concerned Police Station
and (b) if the petitioners intend to lodge a specific complaint against
Dr.Vikhe. The investigating agency will now have to investigate as to
whether, 10000 vials of remdesivir injections or any quantum of vials over
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and above the admitted fact of procuring 1700 vials by Dr.Vikhe, will have
to be gone into by the investigating agency.
20. Since the petitioners state that they would be taking
assistance of material placed before this Court for submitting additional
information to the Rahuri Police Station or file a detailed complaint, all
aspects raised by the petitioners in their complaint will have to be
investigated into by the concerned Police Station. Allegations of the local
administration resorting to a cover-up operation or creating new
documents so as to screen the concerned M.P. from the clutches of law,
will also have to be gone into by the investigating agency.
21. In view of the above, this Criminal Writ Petition is disposed
off. We have permitted the petitioners to utilise additional material and
even those documents or affidavits filed before us and/or file a fresh
complaint with the entire material available now. The Police Station before
whom such complaint would be filed, will follow the procedure as
enshrined under the CrPC and Lalita Kumari (supra) and if the petitioners
are aggrieved by the manner of investigation, they do have a right in law
to take recourse to available legal remedies. The record of the Shirdi
Airport as regards the landing and take off of the private/ chartered
aircrafts, which is preserved, shall be kept secured so as to facilitate the
investigation and shall not be destroyed for one year.
*20* 901cwp527o21
Criminal Application No.1028/2021
22. We have heard the learned Senior Advocate Shri Gupte on
Criminal Application No.1028/2021 filed by Dr.Sujay Radhakrishna Vikhe
Patil in which, the following prayer has been put forth :-
"a) That this Hon'ble Court be pleased to allow the present
application and thereby permit the Applicant, to be
impeded as a party Respondent in Criminal Writ Petition
No.527 of 2021 and the Applicant may kindly be
permitted to file his detail affidavit and to address this
Hon'ble Court during the course of hearing and the
Applicant be heard in the interest of justice."
23. The learned Senior Advocate Shri Gupte has strenuously
canvassed that the applicant needs to be added as a respondent in the
Writ Petition since he has a right to be heard before the Court could order
registration of an FIR.
24. The consistent view of the Honourable Apex Court as regards
audi alteram partem is that a suspect or a proposed accused would not
have a right of hearing at the stage of investigation/ registration of an FIR.
We find that the following judgments would apply to this application:-
(a) Union of India and another vs. W.N. Chadha, 1993 Supp (4)
SCC 260 : AIR 1993 SC 1082. (paras 77, 80, 81, 83, 88 to 90, 94 and 98)
(b) Anju Chaudhary vs. State of U.P., (2013) 6 SCC 384. (paras
31 to 36)
(c) Tushar Vajubhai Gaglani vs. Jagdeesh J. Vaswani and others,
*21* 901cwp527o21
2001 (1) Mh.L.J. 463. (paras 3 and 4)
(d) Union of India vs. Haresh Virumal Milani, 2018 (1) Bom. C.R.
769. (paras 15 to 19)
25. The learned Senior Advocate submits, on instructions, that
the applicant desires to withdraw this application as the petition is being
disposed off with the directions as are set out herein above and in the
event, the petitioners come back to this Court with their grievance about
the investigation, the applicant Dr.Vikhe Patil, if so advised, may renew his
request for seeking a right of hearing in those proceedings.
26. As such, this Criminal Application No. 1028/2021 is disposed
off as withdrawn.
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
