(Cause-title taken from Case Information System)
For Petitioner(s) : Mr. Manoj Paranjpe, Senior Advocate along with Mr.
Kabeer Kalwant, Advocate
For Resp No. 1 to 4 : Mr. Praveen Das, Addl. Advocate General along with
Mr. Anand Gupta, Dy. GA
For Resp. No. 5 : Mr. Raghvendra Pradhan, Advocate
(HON'BLE SHRI JUSTICE BIBHU DATTA GURU)
C A V ORDER
1. The petitioner has filed the present writ petition under Article 226/227 of
and judicial propriety of the impugned letter bearing No. F-10-
petitioner), whereby Respondent No. 2 has recommended registration of
Camera at Dr. Bhimrao Ambedkar Memorial Hospital, Raipur. The
2. The petitioner has prayed for following reliefs in the Writ Petition:-
"(i) That, this Hon'ble Court may kindly be pleased to direct the
Respondents to produce entire records pertaining to the present
case for its kind perusal.
(ii) That, this Hon'ble Court may kindly be pleased to allow the
present writ petition and issue an appropriate writ/order/direction
quashing the entire proceedings initiated against the petitioner
and also may kindly be pleased to quash report dated 20-07-2021
being illegal/erroneous and without jurisdiction. The Hon'ble
Court may kindly be pleased to further quash all consequential
orders/actions including the order dated 30-08-2021. (Annexure
P/1) The Respondents may further be directed not to take any
further action in pursuance to the report dated 20-07-2021
(Annexure P/1) as being untenable in the eyes of law.
(iii) That, this Hon'ble Court may kindly be pleased to issue an
appropriate writ/order/direction to Respondent authorities to
conduct fresh inquiry and take appropriate decision after
affording an opportunity of hearing to the Petitioner and affording
an opportunity to participate in the said inquiry.
(iv) That, this Hon'ble Court may kindly be pleased to issue an
appropriate writ/order/direction to Respondent authorities to pay
adequate compensation to the Petitioner for tarnishing his image
in the society.
(v) That, any other order/relief which this Hon'ble Court may
deem fit, proper, and just in the facts and circumstances of the
present case may also kindly be awarded to the petitioner in the
ends of justice & equity.
(vi) That, the cost of the petition may kindly also be awarded to
the petitioners."
3. From the pleadings and documents annexed with the petition, it is
apparent that the petitioner was posted as Joint Director-cum-
Superintendent at Dr. Bhimrao Ambedkar Memorial Hospital, Raipur,
and was associated with the process relating to the purchase and
installation of PET CT Scan and Gamma Camera for the said Hospital.
On 8.3.2018 (Annexure - P/4) a turnkey proposal of setting up state of
art Nuclear Medicine Diagnostic Centre was made by M/s Millicurie
Healthcare Pvt. Ltd., Mumbai to the Hon'ble Minister, Department of
Health & Family Welfare, Government of Chhattisgarh, which was
forwarded by the Hon'ble Minister to the petitioner on 10-03-2018 for
his opinion, and thereafter the petitioner submitted his opinion regarding
the mode of purchase on 16-03-2018 (Annexure-P/5) and also opined
that it should be under PPP (Public-Private Partnership) mode. On the
basis of said opinion submitted by the petitioner, the Hon'ble Minister
forwarded the matter to the respondent No.5 for doing the needful,
which is evident from Annexure-P/6. However, the petitioner provided
technical specifications of the equipment to the respondent No.5 by letter
dated 22.3.2018 (Annexure-P/7) and 11.4.2018 (Annexure - P/8).
Thereafter, on 17.4.2018 (Annexure - P/9) the respondent No.5 asked
the petitioner to provide the estimated value of Gamma Camera and
PET-CT and also to release 40% of the allotted budget. In response to
the same, by letter dated 17.4.2018 (Annexure-P/10) the petitioner
provided the estimated value of Rs.12.00 crore for PET-CT and Rs.8.00
crore for Gamma Camera and also stated therein that an amount of
Rs.26.00 crores lying for purchase of equipments under the head of
CGMSC. After getting the requisite information as also the technical
specifications, the respondent No.5 floated the tender and uploaded the
same in the public domain on 17.4.2018 (Annexure - P/11), however,
the same was cancelled due to submission of only a single bid,
whereafter a fresh tender was floated on 18-06-2018 (Annexure - P/12).
Subsequently by letter dated 22.10.2018 (Annexure - P/13) the
respondent No.5 sought opinion of the petitioner with regard to release
of 100% payment before opening of LC. Pursuant to the said letter, the
petitioner by letter dated 24.10.2018 (Annexure -P/14) opined that the
payment should be made as per the provisions of Chhattisgarh Store
Purchase Rules. In the meanwhile, the respondent No.3 by letter dated
31.7.2019 (Annexure - P/15) asked the petitioner to provide certain
information regarding purchase of PET-CT machine and allotment of
funds. The Secretary of Medical Education also by letter dated
26.6.2021 (Annexure - P/16) asked for certain information from Head of
Department, Department of Radiology with regard to irregularities
committed in purchase and installation of PET-CT and Gamma Camera
Machine. After collecting documents, the petitioner submitted his reply
on 3.7.2021 (page 70 of petition). After considering all the aspects of the
matter, a committee constituted by the respondent authorities, who
conducted the inquiry and submitted its report on 20-07-2021(Annexure-
P/2) and based on the said report, vide letter dated 30-08-2021 bearing
No. F-10-36/2021/55, Respondent No. 2 informed the Director, Medical
Education, Raipur to lodge FIR against the erring Official. Hence, this
petition.
4. (a) Learned Senior Counsel for the petitioner would submit that the
impugned letter dated 30.08.2021 recommending registration of an FIR
is wholly illegal, arbitrary and without any material basis. It is contended
that the inquiry report itself does not disclose any material to substantiate
the allegations levelled against the petitioner and the findings recorded
therein are based on incorrect facts while ignoring the official documents
available on record.
(b) Learned counsel would submit that the documents and the
sequence of events clearly demonstrate that the petitioner, while working
as Superintendent of Dr. Bhimrao Ambedkar Memorial Hospital, neither
made any proposal nor raised any demand for purchase or installation of
the PET CT Scan and Gamma Camera. The proposal for establishment
of a nuclear medicine diagnostic centre was initially submitted by a
private company and was forwarded by the office of the Hon'ble Health
Minister to the hospital authorities for opinion. In pursuance thereof, the
petitioner merely opined that such equipment would be beneficial for
patients and suggested that the project may be implemented under Public
Private Partnership (PPP) mode, with all manpower, specialised experts,
and required radioisotopes to be arranged by the company itself. It is
further submitted that the petitioner's role was limited to furnishing
technical specifications and providing clarifications as directed, and the
communications issued by him did not contain any demand note or
proposal for procurement. All proceedings relating to budgetary
sanction, administrative approval, tendering, procurement, and payment
were carried out exclusively by the respondent No.5, which never sought
any information from the petitioner regarding budget allocation or
approval. In fact, the tender for procurement had already been floated on
10.04.2018, whereas the petitioner furnished technical specifications on
11.04.2018 and details regarding the earmarked budget on 17.04.2018,
clearly indicating that he had no role in the decision-making process
leading to issuance of the tender. Learned counsel further contends that
the petitioner had only indicated the estimated cost and the limited
earmarked budget already available with CGMSC and had advised that
any procurement be carried out strictly in accordance with the applicable
Chhattisgarh Store Purchase Rules. It is thus argued that there is no
material on record to show that the tender process or procurement was
initiated at the instance of the petitioner or that he had any role in
approving or consenting to any financial transaction.
(c) Relying on the order passed in B.C. Chaturvedi v. Union of India
and Others, (1995) 6 SCC 749, learned counsel would submit that the
Court may interfere where the authority held the proceedings against the
delinquent officer in a manner inconsistent with rules of natural justice
or in violation of statutory rules prescribing the mode of inquiry or
where the conclusion or finding reached by the disciplinary authority is
based on no evidence. If the conclusion or finding be such as no
reasonable person would have ever reached, the Court may interfere with
the conclusion or the finding, and mould the relief so as to make it
appropriate to the facts of each case.
(d) According to learned counsel, the inquiry committee, without
affording any opportunity of hearing to the petitioner and in absence of
any cogent material, has wrongly held the petitioner responsible and
recommended action against him. It is thus submitted that the findings of
the committee are perverse, baseless and contrary to the record, and
therefore the impugned action recommending registration of an FIR
against the petitioner is liable to be quashed.
5. (A) Per contra, learned counsel for the State submits that the present
writ petition is misconceived and devoid of merit. It is contended that the
matter relates to irregular and improper purchase and installation of PET-
CT and Gamma Camera machines in the Department of Radiotherapy at
Dr. Bhimrao Ambedkar Memorial Hospital involving expenditure of
about Rs. 18.45 crores from the State exchequer. Upon noticing several
irregularities in the procurement process, the State Government
constituted a six-member internal committee headed by an officer of
Secretary rank to conduct an inquiry. The committee, after examining the
relevant documents and seeking information from the concerned persons
including the petitioner, submitted its detailed report dated 20.07.2021,
on the basis of which the competent authority issued the communication
dated 30.08.2021 directing registration of an FIR against the concerned
officers involved in the irregular purchase. Learned counsel further
submits that the committee was only a fact-finding body and therefore
there was no requirement of granting a formal opportunity of hearing to
a prospective accused before recommending registration of an FIR. It is
argued that the petitioner has no vested right to seek a pre-hearing before
initiation of criminal investigation, as the power to investigate into
cognizable offences is governed by the provisions of the Criminal Laws.
According to the State, the inquiry report reveals prima facie
irregularities in the procurement of the equipment without proper
administrative or financial sanction and therefore the direction for
registration of FIR has been issued only to facilitate a fair investigation.
(B) According to the learned State Counsel, the then officers of the
Hospital as also the then Director of the Medical Education had in
connivance with the concerned company had committed hefty corruption
and for the said reason, a direction was issued to register the FIR against
the erring officials. As far as the contention of the petitioner that
adequate opportunity of hearing was not afforded to him is concerned, if
the authorities have come to a conclusion through an inquiry report that
the involvement of petitioner or any person for the matter is prima-facie
reflected in that situation no question of granting any opportunity of
hearing arises as the same would go against the jurisprudence of the
Criminal prosecution. In fact, the act of the conducting the investigation
is the independent and inviolable power of the Government. He would
submit that only after collecting the relevant material and upon
appreciating the same in its true perspective the authorities reached to
the conclusion that certain irregularities committed during the purchase
of the equipments and hence, to discover the real scenario, the inquiry
Committee has been constituted, who after considering all the aspects of
the matter submitted its report and based on the same, the letter
Annexure-P/1 was issued for registration of the FIR. In support of his
contention, he would place reliance upon the decisions rendered by the
Supreme Court in State Bank of India and Others v. Rajesh Agarwal
and Others, (2023) 6 SCC 1 as also the decision rendered by this Court
in the matter of Dhanjay Kumar v. State of Chhattisgarh, 2020 SCC
OnLine Chh 4 and would submit that a prospective accused has no right
of hearing before registration of the FIR and investigation by the police
officer or before the Court including the Writ Court. It is thus submitted
that no interference is warranted in the exercise of writ jurisdiction and
the petition deserves to be dismissed.
6. Learned counsel for respondent No. 5 would submit that the present writ
petition is not maintainable against respondent No. 5 as no specific relief
has been sought against it. It is further submitted that the Corporation
had sought information regarding the approximate cost of the machinery
and availability of budget from the Superintendent by letter dated
17.04.2018, and thereafter the tender process was undertaken by
uploading the tender documents in the Public Domain on 17.04.2018
itself. The said tender having received only a single bid was cancelled
and a fresh tender was floated on 18.06.2018, which culminated in
issuance of purchase order in favour of the L-1 bidder, namely Lab India
Private Limited. Learned counsel further submits that subsequent
correspondence was made with the Superintendent for availability of
budget for opening of the letter of credit (LC) and that payments were
made in accordance with the information furnished by the concerned
authorities. It is thus contended that the respondent has acted only in
discharge of its official functions and that no specific allegation or relief
is directed against it in the present petition. Therefore, the writ petition,
so far as it concerns Respondent No. 5, deserves to be dismissed.
7. I have heard learned counsel for the parties at length and have carefully
perused the pleadings as well as the documents available on record.
8. Before adverting to the rival submissions, it would be appropriate to
briefly examine the nature of the inquiry and the findings recorded
therein. The record reflects that the State Government, upon noticing
certain alleged irregularities in the procurement and installation of PET-
CT Scan and Gamma Camera machines involving expenditure of
approximately ₹18.45 crores from the State exchequer, constituted a six-
member committee headed by an Officer of Secretary rank to conduct a
detailed fact-finding inquiry.
9. The inquiry committee, after calling for records from the concerned
authorities and seeking information and explanations from the officers
involved, including the present petitioner, examined the entire material
and submitted its report dated 20.07.2021. A perusal of the said report
indicates that the committee has recorded prima facie findings with
regard to procedural irregularities in the procurement process.
10. The findings, inter alia, point towards absence of prior administrative
approval for procurement of PET-CT equipment, lack of specific
financial sanction for the said purchase, and the manner in which the
procurement process was undertaken through tendering despite such
deficiencies. The report further notes that the process was initiated on the
basis of a proposal received from a private entity and thereafter carried
forward through official correspondence, culminating in procurement
through the concerned agency.
11. The challenge in the present writ petition is essentially directed against
the inquiry report dated 20.07.2021 and the consequential
communication dated 30.08.2021 whereby recommendation has been
made for registration of an FIR against the erring officials.
12. Upon a careful consideration of the material available on record,
particularly the inquiry report dated 20.07.2021 (Annexure-P/2) and the
sequence of events reflected from the correspondence exchanged
between the parties, this Court finds that the petitioner was not merely a
passive functionary but was actively involved at crucial stages of the
procurement process. The petitioner, despite initially opining for
procurement under the PPP mode, proceeded to furnish detailed
technical specifications, estimated costs, and financial inputs which
ultimately facilitated the conventional tendering process. The estimated
valuation furnished by the petitioner, coupled with the indication of
availability of funds under CGMSC, formed the basis for further
financial and administrative decisions. Such conduct, prima facie,
reflects inconsistency in the approach adopted by the petitioner and
indicates his active participation in the decision-making chain without
ensuring adherence to the prescribed procedural safeguards.
13. Further, the inquiry report reveals that the procurement process suffered
from serious procedural lapses, including issues relating to financial
sanction, tender conditions, and payment modalities. The petitioner,
being posted on a responsible position, was expected to exercise due
diligence and ensure compliance with the applicable rules. However, his
role in providing inputs regarding specifications, estimated costs, and
subsequent opinions on payment terms, without ensuring procedural
propriety, prima facie contributed to the irregularities noticed in the
procurement.
14. At this juncture, it is necessary to note that the scope of interference
under Article 226/227 of the Constitution of India is limited, particularly
in matters where the issue relates to initiation of investigation based on a
preliminary inquiry. This Court is not sitting in appeal over the findings
recorded in the inquiry report, nor is it required to conduct a roving
enquiry into the disputed factual aspects of the matter.
15. The contention of the petitioner that he had no role in the decision-
making process and that his involvement was confined only to
furnishing opinion or technical specifications, is essentially a defence on
merits. Whether such a defence is sustainable or not can only be
determined upon a detailed examination of evidence during the course of
investigation or in appropriate proceedings, and not at this stage in writ
jurisdiction.
16. The principal plank of the petitioner's challenge is that the inquiry report
stands vitiated on account of violation of principles of natural justice,
inasmuch as no opportunity of hearing was afforded to him. However,
this contention does not impress this Court for more than one reason.
17. Firstly, the material brought on record by the respondents indicates that
the committee had considered the entire material/communications issued
by the Department to the petitioner seeking information and
clarifications as also the response submitted by the petitioner. Thus, it
cannot be said that the petitioner was completely excluded from the
inquiry process.
18. Secondly, and more importantly, the nature of the committee was only
that of a fact-finding body, constituted to assist the Government in
arriving at a prima facie satisfaction as to whether further action is
required. The committee was not exercising any adjudicatory or quasi-
judicial function so as to determine rights or liabilities of the petitioner.
19. It is well settled that in the case of a preliminary or fact-finding inquiry,
strict adherence to the principles of natural justice is not required. The
requirement of affording a detailed opportunity of hearing arises at a
stage where the authority proposes to take a final decision affecting the
civil rights of a person or to impose any penalty.
20. In the present case, the inquiry report dated 20.07.2021 is merely
recommendatory in nature and does not, by itself, impose any civil or
penal consequence upon the petitioner. The only consequence flowing
from the said report is the issuance of communication dated 30.08.2021
directing registration of an FIR against the then responsible officials so
as to enable investigation into the matter. The direction of FIR is not
only against the petitioner.
21. The challenge to the said communication recommending registration of
FIR also does not merit acceptance. It is trite law that the power to
investigate into cognizable offences lies within the exclusive domain of
the investigating agency and the Courts should be slow in interfering
with such power at the threshold.
22. The argument advanced on behalf of the petitioner that he was entitled to
a pre-decisional hearing before issuance of direction for registration of
FIR is misconceived. A prospective accused has no vested right to be
heard prior to initiation of criminal proceedings. Accepting such a
proposition would seriously impair the efficacy of the criminal justice
system.
23. In this context, the law laid down by the Supreme Court in Criminal
Appeal No. 330 of 2021 (M/s Neeharika Infrastructure Pvt. Ltd. Vs.
The State of Maharashtra & others) clearly holds that Courts should
not stall investigation at the initial stage and should permit the
investigating agency to proceed, unless the case falls within exceptional
categories warranting interference.
24. The Supreme Court in the matter of State Bank of India (Supra) has
held at paragraph 37 & 38 as under:-
"37. ......................At the outset, we clarify that principles of
natural justice are not applicable at the stage of reporting a
criminal offence, which is a consistent position of law adopted by
this Court.
38. In Union of India v. W.N. Chadha, a two-Judge Bench of
this Court held that that providing an opportunity of hearing to the
accused in every criminal case before taking any action against
them would "frustrate the proceedings, obstruct the taking of
prompt action as law demands, defeat the ends of justice and make
the provisions of law relating to the investigation lifeless, absurd,
and self-defeating" Again, a two-Judge Bench of this Court in
Anju Chaudhary v. State of U.P. has reiterated that the Code of
Criminal Procedure, 1973 does not provide for right of hearing
before the registration of an FIR."
25. Further, this Court in Dhananjay Kumar (Supra) has observed that it is
an absolutely settled legal position that a prospective accused has no
right of hearing before registration of FIR and investigation by the police
officer or before the Court including the writ Court, therefore, in a writ
petition seeking direction for registration of FIR and investigation into a
cognizable offence, the prospective accused is neither necessary nor a
proper party.
26. In view of the law laid down by the Supreme Court in the matter of State
Bank of India (Supra) and this Court in Dhananjay Kumar (Supra), a
prospective accused has no vested right to be heard prior to initiation of
criminal proceeding as the Cr.P.C (BNSS) does not provide for right of
hearing to the prospective accused before the registration of an FIR.
27. In the considered opinion of this Court, the present case does not fall
within any such exceptional category. The inquiry report, which forms
the basis of the impugned communication, discloses prima facie
irregularities in the procurement process involving substantial public
funds, thereby justifying further investigation. Whether the petitioner is
ultimately found to be responsible for the alleged irregularities or not is a
matter which can only be determined upon a thorough investigation and,
if required, during trial. At this stage, any interference by this Court
would amount to prematurely stifling the investigation. Insofar as the
prayer for quashing of the inquiry report is concerned, since the report is
only preliminary and recommendatory in nature, no interference is
warranted in exercise of writ jurisdiction.
28. In view of the aforesaid facts and circumstances of the case, this Court
does not find any merit in the writ petition. The petitioner has failed to
make out a case for interference either with the inquiry report dated
20.07.2021 or the communication dated 30.08.2021.
29. Accordingly, the writ petition being devoid of merit is hereby dismissed.
30. Consequently, the interim order granted earlier shall stand vacated.
Sd/-
(Bibhu Datta Guru)
JUDGE
Rahul
HEAD NOTE
A prospective accused has no vested right to be heard prior to initiation
of criminal proceeding as the Cr.P.C (BNSS) does not provide for right of
hearing to the prospective accused before the registration of an FIR.
