Delhi High Court

Pankaj Kumar vs State on 8 September, 2008

Author: Vipin Sanghi

*                        HIGH COURT OF DELHI : NEW DELHI

                         Judgment reserved on: 28.05.2008
+                        Judgment delivered on: 08.09.2008

%                        CRL. M.C. No.1945/2007 & Crl.M.A.11358/07

         Pankaj Kumar                                        ...Petitioner
                             Through:     Mr. D.C. Mathur, Sr. Advocate with
                                          Mr. Vikram Singh Panwar, Advocate

                                        versus

        State                                                ...Respondent
                             Through:     Mr. Shalinder Sharma and
                                          Mr. Rajneesh Chaudhary, Advocates
                                          Mr. Pawan Sharma, APP

CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                           Yes

3. Whether the judgment should be reported                Yes
   in the Digest?


VIPIN SANGHI, J.

1. By this order I proceed to dispose of Crl M.C. No.1945/07

which seeks the quashing of F.I.R. No.78/2006 registered at Police

Station Anti Corruption Branch, Delhi, under sections 420 r/w 120-B of

the Indian Penal Code (IPC) and 13(2) r/w 13(1)(d) of the Prevention of

Corruption Act (P.C.Act), and also Crl M.A.No.11358/07 which has been

filed to seek the transfer of the investigation to CBI.

2. The petitioner claims to be the proprietor of M/s Medicare

Textiles, a firm stated to be engaged in the business of manufacturing

and supplying surgical dressings. The petitioner states that he has

been supplying surgical dressings to a number of hospitals, including

those falling under the Government of Delhi, for the past 10 years.

3. As per the case of the prosecution, one Sh. Mishri Lal,

stated to be the General Secretary of the Lok Nayak Hospital

Employees Union, 717, Lok Nayak Hospital, New Delhi, made a

complaint to the police on 06.11.2006 stating that the petitioner herein

has been supplying sub-standard material i.e. the surgical gauze cloth

to the government hospitals, viz Lok Nayak and Deen Dayal Upadhyay

Hospitals in conspiracy with the staff of the said hospitals. He alleged

large scale corruption in these hospitals. His allegation was that cotton

gauze cloth of size 60 cm x 20 mtrs. is being supplied at the rate of

Rs.48.90 paise in Maulana Azad Medical College and Hospital from M/s

Brij Textiles. Cotton Gauze size 60 cms. x 20 mtrs. is being supplied by

Medicare Textiles at the rate of Rs.48.90 paise in other Delhi

Administration Hospitals, whereas the same is being purchased at

Rs.97.02 in LNJP Hospital from M/s Medicare Textile. It was further

alleged in the said complaint that instead of the size 60 cms. x 20

mtrs. and 90 cms. x 20 mtrs., gauze cloth of size 45 cms. x 20 mtrs. is

being supplied to the LNJP hospital for the last two years since the

posting of Shri Vinod Ramteke as Medical Superintendent of the said

hospital. Allegations were also made in the complaint with regard to

supply/repair of some medical equipment by another entity, with which

I am not presently concerned. On the basis of this complaint, the Anti

Corruption Branch registered the aforesaid FIR bearing No.78/2006 on

07.12.06.

4. The further case of the prosecution is that after registration

of the FIR, Physical measurement of the Cotton Gauze thaans in the

stores of LNJP Hospital and Shushruta Trauma Centre was conducted in

the presence of punch witness and LNJP Hospital Vigilance staff

wherein a large number of thaans were found to be 45 cms to 50 cm in

width and 20 mtrs in length, whereas, according to the supply order

the same should have been 60 cm in width. These supplies are alleged

to have been made in respect of supply order No.F.1(7)/10/DHS/CPA/

2002/1214-21 dated 31.01.2005 placed on M/s Medicare Textiles by

CPA/DHS. The under sized cotton Gauze thaans were segregated and

kept in the store in the custody of LNJP Hospital Vigilance staff after

sealing. It is further alleged that 95 samples and big bags containing

approx. 8710 thaans of the under sized gauze cloth were segregated

and taken in possession and deposited in the maalkhana of the Police

Station, Civil Lines, Delhi. Thereafter, samples were sent to the Shri

Ram Institute of Industrial Research for analysis on 27.1.20007 and

09.02.2007 and for comparison with the specifications mentioned in

the tender. They were tested and a report was received on

06.03.2007. It is alleged that the samples do not meet the

measurement requirements and also do not conform to the

specifications in most cases, thereby concluding that the supply did

not meet the specifications.

5. The petitioner filed an anticipatory bail application u/s 438

Cr.P.C.(Code) on 22.03.2007 which was dismissed as withdrawn by the

trial court. He again filed another anticipatory bail application on

7.4.2007 which was dismissed as being devoid of merits. Non-bailable

warrants were issued against him on 26.03.2007. Thereafter the

petitioner moved an application for cancellation of the non bailable

warrants, which was dismissed on 13.04.2007 by the trial court. On

19.04.2007, this court granted interim bail to the petitioner till

23.05.2007 which was extended by one week with the direction to

move an application for regular bail.

6. Thereafter the petitioner moved an application for regular

bail in the trial court on 24.5.2007 which was fixed for 26.5.2007. On

that day the an application for police remand of the accused/petitioner

was moved. The matter was reserved for orders and was fixed for

29.05.2007. On the said date the learned Spl. Judge refused to take

up the matter citing personal difficulties. Consequently the matter was

directed to be listed before the learned District & Session Judge on

31.05.2007. In the meantime, the petitioner moved the present

petition, and this Court on 31.05.2007 stayed the investigation upto

the next date of hearing. The stay of investigation has continued ever

since.

7. As aforesaid, this petition as initially filed sought the relief

of quashing the FIR in question bearing No.78/2006 registered at P.S.

Anti Corruption Branch, Delhi under Section 13(1)(d), 13(2) of the

Prevention of Corruption Act read with Section 420/120B IPC. However,

during the pendency of this petition, it appears, that the petitioner has

sought to modify the relief that he seeks. On 11.9.2007 after the

arguments had been partly heard by the Court, the petitioner made a

statement that he has no hesitation if the CBI investigates the case

No.RC-DAI-2007-A-0009 dated 6.2.2007, the case filed against the

complainant Shri Mishri Lal the General Secretary of the Lok Nayak

Hospital Employees Union in respect of the FIR No.78/2006. He sought

time to move the application for the said purpose.

8. The petitioner thereafter moved Crl.M.A. No.11358/2007

seeking a direction to transfer the investigation of case FIR

No.78/2006, i.e., the FIR in question, to the CBI which is already

conducting investigation in case RC-DAI-2007-0009. This application

was filed by the petitioner on the premise that investigations into the

subject matter of RC-DAI-2007-0009 and the FIR in question bearing

No.78/2006 are inter linked and shall have definite bearing on each

other. It was further stated that the CBI while investigating the said

RC-DAI-2007-0009 is also investigating the subject matter of FIR

No.78/2006. The petitioner stated that since the matters were inter

related "the petitioner did not have any objection with the CBI

investigating the aforementioned FIR No.78/2006." It was further

stated that no prejudice shall be caused to the respondent if the

investigation in FIR No.78/2006 is transferred to the CBI. The

petitioner alleged that the investigations in the present case had not

been carried out fairly and bona fide by the Anti Corruption Branch. It

was further stated that the Chief Secretary, Delhi and the Principal

Secretary, Health and Family Welfare had also echoed the sentiments

of the petitioner by alleging undue influence by the inspectors of Anti

Corruption Branch in the day to day functioning of the Hospital. The

petitioner further alleged that the dispute was of a civil nature and

criminal proceedings had been instituted with a view to wreck

vengeance on the petitioner.

9. The petitioner also termed the investigation conducted by

the respondent as mala fide for the reason that the Anti Corruption

Branch had raided the Hospital, giving a complete go by to the

provisions of the Drugs and Cosmetics Act while seizing and testing the

samples. It was submitted that cotton gauze is a „drug‟ defined under

the Drugs and Cosmetics Act. However none of the procedures

prescribed under the said Act for seizing and testing of the samples

were adhered to by the investigating agency. Even the test reports

were sought from laboratory neither defined under the Drugs and

Cosmetics Act nor approved by the Hospital authorities and the

petitioner had not been given a chance even to challenge the said

report. The samples allegedly seized by the Police were not kept in

such climatic conditions as were required for the specific drug i.e.

absorbent cotton gauze which, therefore, adversely affected the

quality of the drug on testing. The petitioner contended that neither

the offence could be made out under the I.P.C or the P.C. Act, nor the

investigation be conducted under the Cr.P.C., since the Drugs and

Cosmetics Act was a special law and the aforesaid were general laws.

According to him, the special law would prevail over the general law.

In support of this submission, the petitioner relied upon Suresh

Nanda v. C.B.I. 2008 IV AD (SC) 351 wherein the passport of the

petitioner was impounded without conforming to the provisions of the

passport Act, 1967, and it was held that the provisions of Passport Act

should have been adhered to for the purpose of impounding of a

passport. In paragraph 10 of the application the petitioner stated:

"10. That in view of the aforesaid, i.e. when the CBI is already investigating the case against the complainant of the present case, which has a definite bearing on the present case, coupled with the fact that the investigation has been conducted by the Anti Corruption Branch in the present case in an oblique manner, it shall be in the interest of justice, that the investigation of case FIR No.78/06 shall be transferred to the CBI."

10. At the time of arguments, learned senior counsel Mr. D.C.

Mathur appearing for the petitioner did not make any submissions in

support of the prayer made in the petition viz. to seek quashing of the

FIR No.78/2006.

11. Mr. Pawan Sharma, the learned APP has opposed the

petition and the aforesaid Misc. Application to seek transfer of

investigation to the CBI. He submits that the investigation by the

police cannot be challenged at this stage, as prima facie, there exists

sufficient material on record to show that the petitioner may be

involved in criminal acts, as alleged in the F.I.R. Further, while

countering the arguments of the petitioner Mr. Sharma submits that

the respondents have got the samples verified from a well renowned

institute i.e., Shri Ram Institute of Industrial Research, which is known

for its standards and accepted as a reliable institute. Thus, the

petitioner cannot question the veracity of the results obtained from the

said institute. He submits that Shri Ram Institute for Industrial

Research is licensed by the Drug Controller for Drugs and Cosmetic.

12. Mr. Sharma further submits that the investigation is still at

initial stages and the provisions of the Drugs and Cosmetics Act 1940

will be added at an appropriate stage. It is primarily because of the

abuse of power by the hospital officials in connivance with the

petitioner that the provisions of IPC and prevention of Corruption Act

have been invoked. Further, he submits that the material seized, i.e

the "surgical gauze cloth" was found short in measurements and thus

the climatic conditions would not adversely affect the case of the

petitioner. Hence the argument that the materials seized were not

kept in prescribed conditions is of no consequence.

13. Though the petitioner has not pressed for the relief of

quashing of the FIR in question, even otherwise in my view the

petitioner has failed to make out a case to justify the quashing of the

FIR at this stage. The allegations qua the petitioner found in the

uncertified translated copy of the FIR filed by the petitioner read as

follows:

"Sir we want to bring you face to face with the truth of those hospitals linked with the health department whereby, lacks of rupees are being swindled daily under the head of purchase and repair of articles of daily use of the patients and the technical life saving machinery and parts thereof. In this are involved the junior officers of the hospital their sidekicks and the Medical Superintendent. Sir, if we start with the misdeeds then the first place goes to that regarding articles of daily use such as cotton gauze/gauze cloth which is used in even the smallest of places and the news regarding this is nothing less than explosive. If we compare the purchase by Lok Nayak Hospital and that by other hospitals, mind boggling figures come to the fore.

1. M.A. Dental College Hospital Size 60 cm x 20 M price 48/90 Paise.

2. Delhi Govt.- various hospital Size 60 cm x 20m.

Price 49/90 Paise.

3. Lok Nayak Hospital Size 90cm x 20 meter Price 97/02 Paise Medicare Textile.

At least No.3, gauze cloth purchased by LNH and supplied by Medicare Textile only reaches the hospital in size 45 cm x 20m. The

interesting part is that this has been going on for the last two years i.e from the time that respected Shri Ramtake ji has been Medical Superintendent. Whenever there is any kind of purchase of anything a person does so after finding out about it completely to his satisfaction. However, can it be that the Medical Superintendent did not use even 0% of his intelligence regarding this and can his intentions not be gauged from this? The regular standards have been completely flouted in relation to the stuff supplied by Medicare Textiles. The supplied goods according to law should have complete details with them viz., name of company, name of material, manufacturing batch, lot no, manufacturing date, expiry date, guarantee period etc. but why are these directions not followed with regard to the Stuff supplied to Lok Nayak Hospital? There is a vast difference in the orders placed with Medicare Textile and the orders supplied. You can see this on inspecting any ward, O.T., Store on Trauma center department as early as possible. We would like to state that Madaan, the owner of Medicare Textile, Claims he has relations with the CBI. This can be found out through investigation. However, it is true that through Madaan, an influential power is helping the Superintendent of Lok Nayak Hospital."

14. The substance of the allegations against the petitioner is

that he has, in conspiracy with some of the officers of the LNJP Hospital

supplied cotton gauze of specifications different from those specified

under the contract, and at much higher rates than the rates at which

the said items were supplied, inter alia, to other Delhi Administration

hospitals. On the basis of the said allegations the FIR was registered

under Sections 13(1)(d) of the Prevention of Corruption Act read with

Section 420/120B IPC against the petitioner and a few others. On a

reading of the FIR it is seen that the petitioner has failed to make out a

case falling within any of the illustrations given by the Supreme Court

in State of Haryana vs. Bhajan Lal 1992 Supp.(1) SC 335, or even

otherwise to justify the quashing of the FIR in question at this early

stage of investigation. It cannot be said that the allegations made in

the FIR/complaint, even if they are taken at their face value and

accepted in their entirety, do not prima facie constitute any offence or

make out a case against the accused. It cannot be said that the

allegations in the FIR do not disclose a cognizable offence justifying the

investigation by police officers under Section 156(1) of the Code. It is

not even the petitioner's case that there exist uncontroverted

allegations in the FIR and the evidence collected in support of the

same, which do not disclose the commission of any offence and make

out a case against the accused, including the petitioner. The

allegations in the FIR clearly constitute cognizable offence and,

therefore investigation could be carried out by the respondents

without an order of the Magistrate in terms of Section 155(2) of the

Code. Neither is the case of the petitioner that the allegations in the

FIR are absurd or inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there is sufficient

ground for proceedings against the accused. The petitioner has also

not pleaded any express bar engrafted in any provisions of the Code

or any other law, including the Drugs and Cosmetics Act, to the

institutions and continuance of the proceedings.

15. Consequently the relief sought by the petitioner in the

petition to seek quashing of the FIR in question, in any event, could not

have been granted to the petitioner.

16. Turning now to the relief sought by the petitioner in

Crl.M.A.No.11358/07, that the investigation of the aforesaid FIR be

transferred to the Central Bureau of Investigation (CBI), which is also

investigating RCDAI-2001-0009 against the complainant Shri Mishri Lal

in respect of the FIR in question, once again I find no merit in the

submissions of the petitioner. The said prayer made by the petitioner

is founded upon, firstly, the argument that investigations in the FIR in

question and in RCDAI-2001-0009 are interlinked and have definite

bearing on each other. I cannot appreciate this submission of the

petitioner. What is being investigated under the FIR in question by the

Anti Corruption Branch, inter alia, is the allegation of corruption and

conspiracy by and between various governmental officials and the

petitioner for the alleged supply of cotton gauze, which was not as per

the specifications laid down in the contract and at rates which were

higher than the rates at which the same item was being supplied to

other government hospitals. On the other hand, the case being

investigated against the complainant of the FIR in question, namely,

Sh. Mishri Lal being investigated by the CBI in RCDAI-2001-0009

pertains to the allegation of corruption against Sh. Mishri Lal. The

acts/omissions of the petitioner and the other accused in the FIR

No.78/2006 is in no way being investigated in the said RCDAI-2001-

0009. These two are different set of acts/omissions committed at

different point of time by different persons. In the first case under

investigation i.e. FIR No.78/2006 it is conduct of the petitioner and the

other government officials who are named as accused which is being

investigated, while in RCDAI-2001-0009 it is the conduct of Sh. Mishri

Lal (the complainant in respect of FIR No.78/2006) which is being

investigated. I, therefore, cannot agree with the submission of learned

senior counsel for the petitioner that the two investigations are inter-

related.

17. The second submission in support of the aforesaid prayer

for transfer of investigation to the CBI is equally meritless. The

submission is that cotton gauze is a "drug" within the meaning of

Drugs and Cosmetics Act, and that since the said Act is a special

statute, whereas the IPC, Cr.P.C and P.C Act are general statutes, it is

the Drugs and Cosmetics Act under which the prosecution should have

been launched and not under IPC. The FIR in question has been

registered under the Prevention of Corruption Act and the Indian Penal

Code on the basis of the complaint made by the complainant Sh. Mishri

Lal. The said complaint does not make any reference to the provisions

of the Drugs and Cosmetics Act. In fact, the allegation contained

therein is not with regard to any breach or violation of any provision of

the said Act. The allegation is with regard to the supply of cotton

gauze of specification, namely, physical dimensions different from that

stipulated in the contract and at rates higher than those at which

supplied and were effected to other government hospitals. Even if it

were to be assumed that the cotton gauze is a "drug" within the

meaning of Drugs and Cosmetics Act, and that the supply of cotton

gauze of the dimensions as supplied by the petitioner is in breach of

any provisions of the said Act, and constitutes an offence under the

provisions of the said Act, it does not mean that if the ingredients of

Section 13(1)(d) of the Preventions of Corruption Act read with Section

120B of the IPC and Section 420 of IPC read with Section 120B IPC is

made out, the accused could not be prosecuted for the said offences.

No provision has been brought to my notice by learned senior counsel

for the petitioner to say that in respect of an offence under the Drugs

and Cosmetics Act, no prosecution would be launched against the

accused under any other law even though the same alleged conduct

may tantamount to an offence under any other law. I may also note

that in reply to the petitioner‟s application being Crl. M.A.

No.11358/2007, the stand taken by the respondents is that though the

case has been registered under the Prevention of Corruption Act read

with IPC, the provisions of Drugs and Cosmetics Act will be added at

the appropriate time after completion of investigations. At this

juncture it would be advantageous to notice Sections 2 and 32

(Section 32 falls in Chapter IV) of the Drugs and Cosmetic Act, 1940:

"2. Application of other laws not barred.-

The provisions of this Act shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930 (2 of 1930), and any other law for the time being in force."(emphasis supplied)

"32. Section 32 - Cognizance of offences

(1) No prosecution under this Chapter shall be instituted except by an Inspector or by the person aggrieved or by a recognised consumer association whether such person is a member of that association or not].

(2) No Court inferior to that of [a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter." (emphasis supplied).

18. Thus, the aforesaid provisions make it amply clear that the

provisions of Drugs and Cosmetics Act do not override any other Act,

which would include the Cr.P.C. or the P.C. Act or I.P.C. The

prosecution of the petitioner, as at present is not under the Drugs and

Cosmetics Act. Chapter IV of the Drugs and Cosmetics Act deals with

"Manufacture, Sale and Distribution of Drugs and Cosmetics".

Therefore, even if the petitioner is to be prosecuted under the said Act,

it is Chapter IV thereof which would be relevant for the purpose of his

prosecution.

19. In State of West Bengal v. Narayan K. Patodia, 2000

III AD (SC) 69, relied upon by Mr. Sharma, the Supreme Court, while

relying upon its earlier decision in A.R Antulay V. Ramdas Sriniwas

Nayak and Another, 1984(2) SCC 500, held that the Code is the

parent statute which provides for investigation, inquiry into, and trial of

cases and unless there is specific provision in other statute to indicate

a different procedure to be followed, the provisions of the Code cannot

be displaced. The Supreme Court observed:

"That apart, how could the FIR be quashed if the investigating agency should have been different? By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If High Court was of the opinion that investigation has to be conducted by the Bureau then also there was no need to quash the FIR. Any way we take the view that as offences under the Indian Penal Code are also involved, efficacious investigation can be conducted by entrusting it to the police investigating agency. Inherent powers of the High Court as recognised in Section 482 of the Code are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It is quite unfortunate that learned single Judge overlooked the reality that by quashing the FIR in the case the High Court did not achieve any one of the above factors. On the contrary, the result of quashing the FIR had rendered the allegations of offences made against a person to remain consigned in stupor perennially. Hence, instead of achieving ends of criminal justice, the impugned order would achieve the reverse of it." (emphasis supplied)

20. The reliance placed by Mr. D.C. Mathur, Senior Advocate on

the decision in Suresh Nanda (supra) is misplaced, as in that case the

facts and issue before the court were different. The power to impound

the passport vests in the Passport Authority by virtue of Section

10(3)(e) of the Passport Act, 1967. However, it was contended that the

same has been seized and impounded by exercising the powers under

Section 102 read with Sections 165 and 104 of the Code. The Supreme

Court held that passport cannot be considered as any document or

thing for the purpose of Section 104 of the Code. The principle that

general provision should yield to the specific provision was invoked by

the Supreme Court. However, the position is materially different in the

present case, particularly in view of Sections 2 and 32 of the Drugs and

Cosmetics Act. In view of the ratio of Patodia (supra), it becomes

amply clear that to debar the application of the provisions of the Code,

the IPC and the P.C Act, the special Act must specifically provide for

different procedure to be followed. I have not come across any

provision and none has been pointed out by Mr. D.C. Mathur, learned

Senior Counsel for the petitioner in the Drugs and Cosmetics Act, 1940

which debars the proceedings under the Code. On the contrary, from

Sections 2 and 32 it is evident that the provisions of the Code, P.C. Act

and IPC shall have full application even if the case also involves the

commission of an offence under the Drugs and Cosmetics Act. Thus, in

view of the aforesaid, the contention of the petitioner that the

provisions of the Drugs and Cosmetics Act override the provisions of

the IPC, P.C. Act or Cr.P.C. is rejected. Consequently, I see no merit in

the submission of learned senior counsel for the petitioner that the FIR

in question could not have been registered under the Prevention of

Corruption Act and the IPC, or that the Cr.P.C is not applicable thereto.

21. The argument of the petitioner that the entire dispute is

civil in nature and that no criminal proceedings could be instituted

against the petitioner is also without any merit. To counter this

submission of Mr. Mathur, Mr.Pawan Sharma the learned APP

submitted that the aforesaid case is not of a civil nature, in as much as

it relates to supply of sub-standard supply of surgical material, which is

adverse to public interest. Also the fact that the hospital authorities did

not take any action for so many years despite the ongoing

irregularities in the standards of materials being supplied, and that too

at such inflated prices, indicates the strong rooted criminal conspiracy

going on between the petitioner and the personnels of the hospitals.

Thus the intervention of the police became inevitable and hence, all

the allegations in the F.I.R. are justified.

22. As aforesaid, on a plain reading of the FIR it cannot be said

that no offence is made out even if the contents thereof are assumed

to be true. It is well settled that the same set of facts may lead to civil

as well as criminal liability. The supply of cotton gauze allegedly in

breach of the contractual terms in connivance and conspiracy with

governmental officials, if assumed to be correct, would give rise to

both civil and criminal liability.

23. When the matter came up for hearing on 12.05.2008, the

petitioner in support of his arguments that the investigation should be

transferred to the CBI and that Anti Corruption Branch should not be

permitted to continue with the investigation as they are allegedly

acting mala fide, handed over a bunch of documents in Court to show

that despite the interim order dated 31.05.2007, directing stay of

investigation in respect of FIR No.78/2006, the Anti Corruption Branch

is continuing with the investigation. The petitioner was required to file

an affidavit in support of the said documents. Accordingly, the

petitioner has filed an affidavit dated 20.05.2008. In the said affidavit,

it is alleged that the investigation has been carried out by the Anti

Corruption Branch with connivance with the complainant Sh. Mishri Lal

and his accomplice Dr. Vikas Rampal, who is stated to be very

influential. It is alleged that the investigation has been carried out with

a definite agenda to drag the petitioner into a false and frivolous case.

It is further alleged that there is violation of the order dated

31.05.2007 in as much as, despite the stay of investigation granted by

this Court on 31.05.2007, the investigation has been continued by the

respondents. In support of this submission the petitioner has produced

a copy of the letter dated 19.06.2007 issued by Sh. Avinash Sharma,

Inspector/Anti Corruption Branch to Sh. Sudarshan Dua, Chartered

Accountant, wherein he had sought the supply of various documents

from the said Chartered Accountant pertaining to the petitioner. The

petitioner has also produced another communication dated 13.08.2007

stated to have been issued by Sh. Avinash Sharma, Inspector, Anti

Corruption Branch to the Medical Superintendent of Guru Teg Bahadur

Hospital thereby requesting the latter to provide the rates at which

surgical dressings have been procured since 2004 by the Guru Teg

Bahadur Hospital. It is argued that the continued investigation by the

respondents in respect of the FIR in question despite the interim stay

granted by this Court is only on account of malafides with which the

respondent is proceeding with the investigation. The petitioner also

relied upon the minutes of meeting held on 21st and 23rd August, 2007

under the chairmanship of Chief Secretary Sh. R. Narayan Swamy,

wherein the Dean Maulana Azad Medical College raised the issue of

unnecessary interference of the Inspectors of the Anti-Corruption

Branch in the day to day functioning of the hospital. The Chief

Secretary in the said meeting desired that the hospital staff should not

be harassed unnecessarily by the Inspector and the Anti-Corruption

Branch.

24. The petitioner further submits that he has no faith in the

investigation conductd by the Anti-Corruption Branch and, therefore,

seeks the transfer of the investigation to the CBI.

25. The respondent has filed a reply to the said affidavit of the

petitioner which is duly supported by the affidavit of Sh. Kulwant

Sharma, ACP, Anti-Corruption Branch. The stand of the respondents is

that after the issuance of the interim stay order by this Court on

31.05.2007, no further investigation has been conducted into the FIR in

question. The investigating officer in respect of the FIR in question was

one Surjeet Singh, ACP. It is further stated that Avinash Kumar, ACP is

not investigating the FIR in question. It is pointed out that Sh. Avinash

Kumar is posted in the Vigilance Branch, which is a different unit and

functions independently. The communications dated 19.06.2007 and

13.08.2008 relied upon by the petitioner do not pertain to the

investigation of the present case i.e. FIR in question. The stay of

investigation of the FIR in question pertains to the supply of cotton

gauze to LNJP Hospital by the petitioner. On the other hand, the

communication dated 13.08.2007 relates to the supplies made to Guru

Teg Bahadur Hospital, which is not in question in the present FIR.

26. Mr. Sharma, the learned APP submits that the aforesaid

communications are a part of a separate investigation being conducted

by the Directorate of Vigilance. There is another complaint dated

23.06.07 by Secretary, Gola Siksha Samiti. As regards the letters by

the Chief secretary, Delhi and the Principal secretary, Health & Family

Welfare, it is submitted that the said letters are written at the behest

of the petitioner to save their skins.

27. Mr. Pawan Sharma, learned APP, produced before the Court

the original records pertaining to the investigation conducted in FIR

No.78/2006 as also the investigation being conducted by Mr. Avinash

Sharma in file No.F25(12)/2006-DOV. It appears from the latter file

that the Central Vigilance Commission vide their letter dated

13.02.2007 had sought an action taken report in the matter of

complaints regarding irregularities in purchase of medical equipment

in LNJP Hospital. Apart from the complaint made by Sh. Mishri Lal, two

other complaints of similar nature were also received. All these

complaints were forwarded to Anti-Corruption Branch for enquiry and

report. The investigation conducted by Sh. Avinash Sharma related to

the procedural irregularities as well as apparent case of favoritism

shown not only to M/s Medicare Textile, the firm of the petitioner, but

also to one M/s Primex India. The enquiry conducted by Sh. Avinash

Sharma, ACP, Anti Corruption branch has been conducted on the

asking of the Central Vigilance Commission and the report has also

been prepared for the purpose of Central Vigilance Commission. What

is being investigated by Mr. Avinash Sharma, Inspector, Crime Branch

is not the FIR in question, but a larger issue of irregularity and illegality

in the procurement of medical equipment by various government

hospitals.

28. On the other hand, a perusal of the case file pertaining to

the FIR in question shows that the investigating officer Sh. Surjeet

Singh, ACP, Anti-Corruption Branch, Delhi pursuant to the stay orders

granted by this Court on 31.05.2007 has undertaken no further

investigation being aware and conscious of the said orders. It is seen

that during the pendency of the present petition the investigating

officer received various references. However, he did not proceed with

further investigation and remarked that the reference are to be verified

and taken care of during investigation after the vacation of stay order

of this Court. He further states that since he has been transferred to

Vigilance Branch, Delhi Police, orders have been made by Additional

CP/AC Branch to hand over file to Sh. Kulwant Sharma, ACP.

Accordingly, the case file along with all the list of documents, relevant

files, lab test reports etc. were handed over to Sh. Kulwant Sharma,

ACP/ACB on 17.01.2008. There is nothing on this file to suggest that

even Shri Kulwant Sharma, ACP, Crime Branch, Delhi has conducted

any further investigation ever since he has taken over the charge from

Shri Surjeet Singh ACP, Crime Branch, Delhi. This itself shows that no

investigation has been conducted after grant of stay orders on

31.05.2007 in relation to the FIR either by the erstwhile investigating

officer Sh. Surjeet Singh and by his successor Sh. Kulwant Sharma.

There is no substance in the submission of the petitioner that the

respondent has breached the orders passed by this Court on

31.05.2007.

29. The submission of the petitioner that the investigation has

been conducted into the FIR in question under the influence of Dr.

Vikas Rampal has been denied by the respondents. The allegations of

the petitioner are even otherwise vague in this respect. So far as the

submission of the petitioner, that he had been called to the room of Dr.

Alok Kumar in LNJP Hospital for investigation by Mr. Avinash Sharma,

Inspector, Anti-Corruption Branch, Delhi in April 2008 is concerned, the

respondents have stated that the said investigation conducted by Mr.

Avinash Sharma was not in relation to the FIR in question. The scope

of the interim stay granted by this Court was merely to stay the

investigation in respect of the FIR in question by its investigating

officer pertaining to the petitioner. The same obviously did not

encompass, within its scope, any other investigation being conducted

by another investigating officer at the instance of the CVC. If the

petitioner was aggrieved by the conduct of the investigation by ACP

Avinash Sharma, which was being conducted at the instance of the

CVC to unearth the alleged irregularities and illegalities committed in

the procurement of medical equipment, and was not restricted to the

procurement of only cotton gauze cloth supplied by the petitioner, the

petitioner could have approached this Court to either seek a

clarification, and/or to seek a stay in respect of the investigation being

done by Avinash Sharma, Inspector, Anti-Corruption Branch, Delhi.

30. There is absolutely no substance brought on record in

support of the allegations of malafides against the respondents by the

petitioner. It is well settled that allegations of malafides have to be

specific and should contain sufficient detail. Allegations of malafides

generally made against an organization per se can only be described

as vague. It is not stated as to who, in particular, in the Anti-

Corruption Branch, Delhi, is acting with malafides against the

petitioner. It is also not stated as to what is the motive or reason for

the alleged malice against the petitioner. The said allegation being

devoid of merit is rejected.

31. Nobody can ask for transfer of investigation to another

agency just by levelling vague allegations on the investigating agency.

The petitioner has failed to satisfy the court, as to what is the basis of

the petitioner‟s apprehension that the Anti Corruption Branch would

act malafidely against the petitioner on a complaint by a third party. In

any event it is a trite law that the roster of the CBI cannot be

burdened, and only in rarest of cases shall the investigation be

entrusted to CBI. See Shakuntla Devi V. SHO & ORS. 2007 (4) JCC

3010. In Capt. Har Charan Singh Kohli V. The Commissioner of

Police, 1996 IV AD (DELHI) 748, it was observed:

"5. It is only in very rare cases where the party is able to satisfy the Court that investigation carried out by the police is partisan or has not been carried out in a proper manner or any material witness or document has not been investigated upon by the investigating agency that a case may be made out for transfer of investigation from one agency to the other. In this case, not only that, in my opinion, no case has been made out for transfer of investigation to any other agency but such a transfer would only hamper the trial which is now pending in the Court of Additional Sessions Judge against the accused persons. The Courts will not interfere in the police investigation subject of course to the right of the Court to intervene in an appropriate case

when either the police is not investigating the matter properly or it is being investigated in a partisan manner."

32. In C.B.I. and Another V. Rajesh Gandhi and another,

(1996) 11 SCC 253, it was held that:

"8.There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We fail to see any provision of law for recording reasons for such a decision....................".

33. In Sakiri Vasu v. State of U.P., 2007 (13) SCALE 693 it

was held:

"10. It has been held by this Court in CBI and Another. v. Rajesh Gandhi and Anr. 1997 Cr. L.J. 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.

11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under

Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

xxx xxx xxx xxx xxx

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

xxx xxx xxx xxx xxx

31. No doubt the Magistrate cannot order investigation by the CBI vide CBI v. State of Rajasthan and Anr. (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

xxx xxx xxx xxx xxx

33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and Ors. v. Sahngoo Ram Arya and Anr. 2002 (5) SCC 521 (vide para 6), this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry

cannot be ordered as a matter of routine or merely because the party makes some allegation."

34. The petitioner has failed to make out a case to justify the

transfer of the investigation of the FIR in question to the CBI. In light of

the aforesaid, in my view, the petition is without any merit and is

therefore dismissed. Interim order dated 31.5.2007 stands vacated. In

view of the fact that on account of the stay order dated 31.5.2007

passed by this Court, staying further investigation of the FIR in

question, the investigation has got unduly delayed, I direct the Anti

Corruption Branch to take up the investigation in right earnest and

complete the same at the earliest. The bail application of the

petitioner and the application of the respondent seeking police

remand of the petitioner be listed before the District & Sessions Judge,

Delhi for further proceedings on 10.9.2008. Parties are left to bear