Delhi High Court
Dr Sarbesh Bhattacharjee vs State Nct Of Delhi on 14 October, 2022
$~8 to 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 07.07.2022
Judgment pronounced on: 14.10.2022
+ W.P.(CRL) 781/2021
DR SARBESH BHATTACHARJEE ..... Petitioner
Through: Ms. Arundhati Katju, Mr. Mohammad
Ali Choudhary, Ms. Shrishti Borthakur, Advs.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. R.S. Kundu, Ld. ASC with Mr.
N. Kumar, Mr. M. Dagar, Mr. A. Singh, Mr. N.
Dagar, Advs.
+ W.P.(CRL) 785/2021 & CRL.M.A. 5717/2021
DR SARBESH BHATTACHARJEE ..... Petitioner
Through: Ms. Arundhati Katju, Mr. Mohammad
Ali Choudhary, Ms. Shrishti Borthakur, Advs.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. R.S. Kundu, Ld. ASC with Mr.
N. Kumar, Mr. M. Dagar, Mr. A. Singh, Mr. N.
Dagar, Advs.
+ W.P.(CRL) 786/2021 & CRL.M.A. 5719/2021
DR SARBESH BHATTACHARJEE ..... Petitioner
Through: Ms. Arundhati Katju, Mr. Mohammad
Ali Choudhary, Ms. Shrishti Borthakur, Advs.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. R.S. Kundu, Ld. ASC with Mr.
N. Kumar, Mr. M. Dagar, Mr. A. Singh, Mr. N.
Dagar, Advs.
Signature Not Verified
Digitally Signed byAMIT W.P.(CRL) 781/2021 & other connected matters Page 1 of 25
ARORA
Signing Date:14.10.2022
18:31:36
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
JASMEET SINGH, J
1. These are writ petitions which are being disposed of by a common
order.
2. The petitioner in the above writ petitions has sought quashing of the
following FIRs:
a. FIR No. 01/2012 dated 10.01.2012 registered at PS Anti Corruption
Branch under Section 13(1)(d)/13(2) of the Prevention of Corruption
Act, 1988 (hereinafter "PC Act") and Section 420/120B Indian Penal
Code, 1860 (hereinafter "IPC") and proceedings emanating therefrom
in W.P.(CRL) 786/2021;
b. FIR No. 02/2012 dated 10.01.2012 registered at PS Anti Corruption
Branch under Section 13(1)(d)/13(2) of the PC Act and Section
420/468/471/120B IPC and proceedings emanating therefrom in
W.P.(CRL) 781/2021;
c. FIR No. 04/2013 dated 16.02.2013 registered at PS Anti Corruption
Branch under Section 13(1)(d)/13(2) of the PC Act and Section
420/468/471/120B IPC and proceedings emanating therefrom in
W.P.(CRL) 785/2021.
3. The factual matrix of the case as per the petitioner is as under:
a. The Petitioner had a career of around 36 years as a medical officer
under the Govt. of Arunachal Pradesh, the Assam Rifles, and finally
the Central Govt. Health Services.
b. The petitioner was transferred to Delhi Government and was posted as
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
Director, Health Services ("DHS") on 26.08.2009. Subsequently, he
was posted as Medical Superintendent, Deen Dayal Upadhyay (DDU)
Hospital on 10.03.2011 and was to retire on 31.01.2012 on attaining
superannuation.
c. The petitioner was suspended from service on 02.11.2011, just 3
months prior to his date of retirement. Being aggrieved by the
suspension, the petitioner filed an Original Application No.
4087/2011 before the Central Administrative Tribunal (CAT),
Principal Bench, New Delhi. Vide order dated 23.12.2011, the learned
CAT was pleased to quash and set aside the suspension orders dated
02.11.2011 and 28.11.2011.
d. Since the order dated 23.12.2011 was not implemented and the
retirement dated of the petitioner was approaching on 31.01.2012, the
petitioner filed a Contempt Petition No. 06/2012 titled „Dr. Sarbesh
Bhattacharjee v. Sh. Anshu Prakash & Ors.‟ before the learned CAT.
e. Thereafter, the FIR No. 01/2012 and impugned FIR No. 02/2012 were
filed against the petitioner on the same date i.e., 10.01.2012.
f. Following are the FIRs registered against the petitioner:-
FIR Details Date
FIR No. 01/2012 registered at PS Anti 10.01.2012
Corruption Branch under Section
13(1)(d)/13(2) of PC Act and Section
420/120B IPC
FIR No. 02/2012 registered at PS Anti 10.01.2012
Corruption Branch under Section
13(1)(d)/13(2) of PC Act r/w section
420/468/471/120B IPC
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
FIR No. 04/2013 registered at PS Anti 16.02.2013
Corruption Branch under Section
13(1)(d)/13(2) of PC Act and Section
420/468/471/120B IPC
RC/DAI/2014/A/0036 P.S. ACB under 22.08.2014
Section 13(1)(d)/13(2) of the PC Act read
with Section 420/468/471/120B IPC
g. All the above-mentioned FIRs emanate from the same tender inquiry
No. 2/DHS/CPA/2009 relating to the procurement of different
medical equipment.
h. As far as the order dated 23.12.2011 of CAT is concerned, the same
was challenged by the Department of Family Health and Welfare
preferred W.P.(C.) No. 249/2012 titled „Department of Health and
Family Welfare v. Dr. Sarbesh Bhattacharjee & Ors.‟ and the
operation of the order dated 23.12.2011 was stayed.
i. Hence, on 06.02.2012, the learned CAT was pleased to close the
contempt matter with liberty to the petitioner to revive the Contempt
Petition if the occasion so arose.
j. Thereafter, the petitioner has been repeatedly called for investigation
and he has been cooperating with the investigating agencies.
k. The petitioner has been granted bail in the FIR No. 01/2012 on
01.06.2012. The petitioner was granted interim protection in the FIR
No. 02/2012 on 04.01.2013 and thereafter anticipatory bail on
23.01.2013. On 17.07.2013, the order of 23.01.2013 was made
absolute. On 20.05.2013, the petitioner was granted interim protection
was in FIR No. 04/2013. He was further granted anticipatory bail vide
order dated 12.08.2013.
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
l. On 08.04.2013, the W.P.(C) No. 249/2012 titled „Dept. of Health and
Family Welfare v. Sarbesh Bhattacharjee‟ was dismissed.
m. On 22.08.2014, yet another FIR No. RC/DAI/2014/A/0036 registered
at P.S. ACB under Section 13(1)(d)/13(2) PC Act read with Section
420/468/471/120B IPC was registered against the petitioner regarding
the same tender. The Petitioner challenged the same by filing Writ
Petition (Crl.) No. 784/2021. This court in the order of 29.07.2021
recorded that "The charge sheet has already been filed in the Court of
learned C.M.M.; the trial is at the stage of recording of prosecution
evidence and the next date before the learned Trial Court is 13 th
September 2021. It is thus evident that in the RC/DAI/2014/A/0036 of
which the petitioner seeks quashing, no charge sheet has been filed
against the petitioner and even while taking the cognizance, the
petitioner was not summoned as an accused in view of the fact that
there was no material to substantiate that he had committed any
offence, as alleged." Thus, the Writ Petition was dismissed by this
Hon‟ble Court as infructuous.
n. As per the petition, it is stated that after the suspension of the
petitioner, there has been no departmental inquiry against the
petitioner and never received any charge sheet or memorandum of
charge sheet in relation to the Tender Inquiry No. 2/DHS/CPA/2009.
Allegations in FIR No. 01/2012 :
o. The impugned FIR no. 01/2012, P.S. Anti-Corruption Branch, under
section 13(1)(d)/13(2) Prevention of Corruption Act read with Section
420/120-B IPC alleged that a contract for supply of sterile gloves was
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
awarded to M/s. MRK Healthcare vide Tender dated 07.04.2010 for a
period of two years i.e. from 09.04.2010 to 08.04.2012.
p. The FIR No. 01/12 further alleged that:
M/s. MRK Healthcare were to furnish a security deposit calculated on
the following basis:
[Quantity of items] x [Rate per unit] x 5 %
As per the prosecution case, Rs. 18 lakhs were to be deposited by
M/s. MRK Healthcare whereas they deposited only Rs. 3 lakhs.
The gloves were to be supplied through M/s. Pharmatek (India),
distributors of M/s. MRK Healthcare. Vide letter dated 20.10.2010,
M/s. MRK Healthcare informed that M/s. Pharmatek (India) had
ceased to be their distributor with immediate effect and supply orders
against the CPA contract may be placed with it directly, however, it is
alleged by the investigating agency that vide letter dated 27.10.2010
M/s. MRK Healthcare informed BSA Hospital, Rohini that M/s.
Pharmatek (India) were their distributors.
M/s. MRK Healthcare allegedly sought to cancel the contract on the
ground that excess order had been placed on them in the first year and
they could not continue to supply at the contract rate. The co-accused
Dr. D.S. Rao is alleged to have cancelled the contract, forfeited the
earnest money deposit of Rs. 3 lakhs and informed all the
Directors/Medical Superintendents intimating them of the cancellation
of the rate contract, mentioning the reason behind the decision and
requesting them to make their own arrangement for procurement of
sterile gloves.
The hospitals then allegedly purchased sterile gloves from the open
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
market including from M/s. MRK Healthcare which is alleged to have
caused a loss to the exchequer of 98,98,391/-.
Allegations in FIR No. 02/2012 :
q. The allegations in the impugned FIR No. 02/2012 are that in 2009,
surgical tender was initiated by the Chief Medical Officer ("CMO"),
CPA, GNCT of Delhi to finalize the rate contract of drugs and
surgical consumables for all hospitals and other health establishment
under GNCT. It was the responsibility of the CPA to finalize the rates,
pursuant to which the following steps were taken:
"
DATE DESCRIPTION
04.05.2009 A Sub-Committee under the Chairmanship of Dr.
Manka Tala for the purpose of finalization of T&C
and list of items and their specification for open
tender of Surgical Consumables was constituted.
19.06.2009 SPC constituted a Committee of Dr. N. Singh and
Dr. P.S. Bhandaru to examine the tender documents
which was finalized by the above Sub-Committee.
24.06.2009 The above Sub-Committee suggested a few changes
and sought approval from the Law and Finance
Department.
09.10.2009 The Tender was floated by the CPA and on
09.07.2009 tender for 247 items was opened.
21.10.2009 Technical Evaluation Committee was constituted by
the CPA.
27.11.2009 Report of aforesaid Technical Evaluation Committee
was placed before the SPC.
02.12.2009 SPC made a Sample Evaluation Committee and this
Committee submitted its report on 08.12.2009.
21.12.2009 Financial bids were opened.
12.01.2010 a) SPC decided all single quoted and single
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
approved items be retendered; b) to constitute a
Sub-Committee to evaluate the rates and assess the
reasonability of rates; c) to extande the old tenders
for six months.
28.01.2010 Meeting of Sub-Committee decided a) items whose
rates had increased upto 50% made be accepted; b)
retendering advised for all items whose rates had
increased above 150%; c) limit of negotiation set for
50% otherwise retendering for all those items was to
be done.
22.03.2010 Meeting of SPC was held and report of Sub-
Committee approved 90 items and further decided
that negotiated L-1 rates for items showing an
increase upto 30% from previous CPA rate may be
approved for rate contract and out of 90 items
recommended for approval, 59 items were approved
for rate contract and 31 items were to be
reconsidered by the Sub-Committee.
21.05.2010 Sub-Committee held a meeting and put suggestions
before the SPC.
01.06.2010 Meeting of the SPC was held and it decided to write
to all departments and hospitals under GNCT of
Delhi to provide approved rates. Based on which,
the CPA would prepare a comparative statement of
rates and the recommendation of Sub-Committee
would be placed before SPC in the subsequent
meeting. But, the Chairman of the SPC resigned in
June, 2010 and no meeting was held thereafter.
13.07.2010 Letters were sent to all Medical Superintendent to
provides the approved rates for 31 surgical
consumable items for comparison as per direction of
SPC.
05.08.2010 Reminders were issued to all hospitals.
12.08.2010 After not receiving of rates from various hospitals,
the matter was placed before the Incharge, CPS and
DHS.
16.09.2010 DHS approved the rates of 31 surgical consumables
as per recommendations of MS's committee.
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
27.10.2010 DHS gave their approval from supplying of suture
material from the two firms namely M/s Centennial
Surgical Sutures Ltd. and M/s B. Braun at their own
level with directions to make negotiation with the
firms to bring the rates of suture material within
50% of previous tender suture rates. But the rates
decided by the DHS were not within 50% of previous
tender suture rates and decided on much higher
rates, even higher than the previous rate and the
then marked rates.
"
r. It is in this background that the FIR No. 02/2012 was registered for
violating and bypassing the instructions of the Special Purchase
Committee ("SPC") and causing loss to the government exchequer.
s. The allegation in FIR 2/2012 against the petitioner is that the In-
charge of CPA and DHS took a decision at their own level to purchase
sutures at a higher rate from M/s Centennial Surgical Sutures Ltd.
which should have been done by the Special Purchase Committee
("SPC") and the SPC in its meeting dated 28.01.2010 rejected the L-1
rates of M/s Centennial Surgical Sutures Ltd. and had decided to issue
rate contracts of only those items which were within 50% of the
previous approved rates.
t. The allegations against M/s Centennial Surgical Sutures Ltd. are also
as under:-
On 27.10.2010 (i.e. after the aforementioned decision was taken
by the SPC during the meeting dt. 28.01.2010), the concerned
officer of CPA and DHS proposed that two sutures supplying
firms whose bids were opened against the tender be asked to quote
afresh.
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
M/s Centennial Surgical Sutures Ltd. supplied sutures to the CPA
at Rs. 2201/- whereas they were supplied to hospitals, i.e. GB Pant
Hospital at Rs. 996/- and to RML Hospital at Rs. 610/. Thus, there
is a huge difference in the rates of items quoted by M/s Centennial
Surgical Sutures Ltd. in response to tenders for various medical
use items called by DHS, in the existing CPA rate contract from
other three government institutional tender rates. However, during
the arguments before the Ld. Special Judge, Tis Hazari Courts,
Delhi it transpired that, in the minutes of the meeting on
28.01.2010 it was noted that there is no comparison between the
rates offered to individual hospitals and those offered to CPA.
M/s Centennial Surgical Sutures Ltd. had submitted forged
certificates dated 29.10.2009. The Food and Drug Administration,
Thane had denied issuing the same.
Allegations in FIR 04/2013 :
u. While being posted as Medical Superintendent, DDU Hospital, the
Petitioner abused his position as public servant for placing order
on M/s Colour Life Sciences Pharmaceutical Company for supply
of surgical rubber gloves.
v. An order dated 15.04.2011 for the supply of surgical gloves was
placed upon M/s Colour Life Sciences on the basis of an allegedly
forged letter, dated 29.03.2011, by which approval was given to
M/s Colour Life Sciences for supply of gloves by GTB Hospital.
w. The rate at which sterile surgical gloves were bought, i.e. at
Rs.12.90 per pair was exorbitant, and gloves supplied were less
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
than what was reflected in the account books.
x. The FIR further states that the Petitioner violated GFR Rules,
which only permit single purchase not exceeding Rs. 25 Lakhs.
y. These orders were issued on the basis of the letter dated
29.03.2011, purported to have been issued by Dr. A.K. Chatterjee,
Addl. Medical Supdt./Purchase Officer, GTB Hospital, Dilshad
Garden, Delhi to Purchase Officer, DDU Hospital, Delhi
intimating the approved rates of the gloves. However, Dr. A.K.
Chatterjee denied to have issued any such letter and hence, the
said letter was alleged to be forged.
4. Ms. Katju, learned counsel for the petitioner, contends the
following :
a. She states that since filing of the contempt petition, four FIRs have
been registered in retaliation to CP No.6/12 filed by the Petitioner
against the senior officer of GNCT of Delhi. Moreover, out of the four
FIRs, two were registered on the same day i.e., 10.01.2012 making
similar allegations. She states that all the FIRs emanate from the same
tender enquiry no.2/DHS/CPA/2009 relating to the procurement of
different medical equipment which simply shows the mala-fide
intention of the Respondent in multiplying proceedings against the
Petitioner.
b. She states that assuming chargesheet has been finalised even then this
does not bar this Hon‟ble Court from quashing FIR under Section
482, CrPC. She quotes the Supreme Court in Joseph Salvaraj A. v.
State of Gujarat, (2011) 7 SCC 59 wherein it was held:
"16. Thus, from the general conspectus of the various sections
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
under which the appellant is being charged and is to be
prosecuted would show that the same are not made out even
prima facie from the complainant's FIR. Even if the charge-
sheet had been filed, the learned Single Judge could have still
examined whether the offences alleged to have been committed
by the appellant were prima facie made out from the
complainant's FIR, charge-sheet, documents, etc. or not."
c. She states that the impugned FIRs are an abuse of the process of the
court. These FIRs were registered in 2012, more than two years after
the alleged offences and 6 months after the complaints were received
by the agency. The investigation was not completed in over 10 long
years, but has been expedited and concluded after filing of the present
writ petitions by the Petitioner. This goes to show the malafide intent
of the respondents against the Petitioner.
d. She states that the delay in the investigation is not attributable to the
Petitioner. It is trite law that the Petitioner has a right to speedy
investigation and trial under Article 21 of the Constitution.
e. With respect to FIR No. 1/2012, she states that no role was attributed
to the Petitioner. Rather, the co-accused Dr. D.S. Rao (who was the
Petitioner's junior officer) was alleged to have cancelled the contract,
forfeited the earnest money deposit and intimated all the
Directors/Medical Superintendents of the cancellation of the rate
contract.
f. She states there is no allegation whatsoever that any advantage was
received by M/s MRK Healthcare, inasmuch as after they cancelled
the contract, the gloves were obtained from the open market, i.e. from
any supplier. Further, the Earnest Money Deposit of M/s MRK
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
Healthcare was forfeited.
g. With respect to allegations in FIR No. 2/2012, she states that that the
petitioner had no role to play in the selection of the company, as the
same is done by various committees with members who are experts on
the subject.
h. She states that the submitting of forged certificate is attributable to
M/s Centennial Surgical Sutures Ltd. and the petitioner had no role to
play in that regard. Thus, no offence under Section 420/468/471/120B
IPC is alleged to have been committed by the petitioner.
i. She states that assuming the allegations to be correct, the same do not
amount to criminal misconduct under Section 13(1)(d)/ 13(2) of the
Prevention of Corruption Act, insofar as the petitioner had no role in
the selection of M/s Centennial Surgical Sutures Ltd. as it was done
by various committees with members who are experts on the subject.
j. At best, the offences alleged in the FIR, may amount to negligence or
a breach of rules for which the only remedy was a departmental
proceeding, but there is no criminality involved. She states the only
allegation against the Petitioner is that the Petitioner did not raise the
issue before the higher authorities before taking the decision of
cancellation of the contract.
k. With respect to allegations in FIR No. 4/2013, she states that there is
nothing on record to support the allegation that the Petitioner knew or
had reason to believe that the letter dated 29.03.2011 or 31.08.2011 as
alleged were forged documents. Thus, allegations under section 468
IPC are not established.
l. She states that the allegation under section 471 IPC is not made out
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
inasmuch as the petitioner had no knowledge or reason to believe that
the certificate submitted by M/s Colour Life Sciences were forged.
The Petitioner considered the certificates to be genuine and did not
make any fraudulent or dishonest use of the same.
m. She states that FIR no. 04/2013 is stated to be based on information
discovered during the course of investigation in FIR No. 01/2012. In
accordance with the principle laid down in Babubhai v. State of
Gujarat, (2010) 12 SCC 254, registering of a fresh FIR in such
circumstances is an abuse of the process of law.
n. She states that no departmental proceedings were ever initiated
against the Petitioner, who is however, now receiving a provisional
pension. Petitioner‟s gratuity and leave encashment have not been
released to him till date.
o. The dishonest intention on the part of a public servant while obtaining
the valuable thing, is an essential prerequisite for an offence under
Section 13(1)(d) PC Act. In the entire FIR, there is no allegation of
any demand or acceptance of any bribe or illegal gratification, which
is also a prerequisite for 13(1)(d) PC Act.
p. She placed reliance on the judgment of Anil Maheshwari & Ors. v.
CBI, 2013 SCC OnLine Del 2175 to contend that a public servant has
a duty to take decisions on file and every award of a tender or claim,
decision to cancel a contract etc. and is bound to cause pecuniary
advantage to some and perhaps disadvantage to another. But merely
causing pecuniary advantage to someone will not hold the public
servant liable for criminal misconduct, unless it is coupled with the
use of corrupt or illegal means, abuse of position, or is without public
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
interest.
q. She further stated that no offence under Section 420 IPC is made out
as the petitioner never deceived any person or induced any person to
deliver any property or retain any property, nor consented that a
person shall retain any property nor caused any person to do anything
or omit to do anything that they would have done if not so deceived.
r. She further states that offence under section 120-B IPC is not
established since there is no allegation that any of the co-accused
persons agreed to do or caused to be done any alleged illegal act or
any act which is not illegal by illegal means.
5. Per contra, Mr. Kundu, learned counsel for the respondent, argues the
following:
a. He states that assuming there is a delay in investigation, the same is
not a ground for quashing the FIR. He places reliance on A R Antulay
& Ors. v. R.S. Nayak & Anr. [(1992) 1 SCC 225], to state that the
delay does not automatically cause prejudice to the accused and
balance is required to determine whether prejudice has actually been
caused to the accused. He further submits that in the present case, the
inordinate delay, if any, did not prejudice the rights of the petitioner.
b. He states that as per the Apex Court‟s observation in Dhanlaxmi v. R.
Prasanna Kumar, AIR 1990 SC 494, the High Court should not
quash proceedings initiated by the magistrate when there are specific
allegations in the complaint disclosing ingredients of offence.
c. He further states that as per the ratio in Jagdish Ram v. State of
Rajasthan, AIR 2004 SC 1734, in considering the question whether
criminal proceeding deserve to be quashed on the ground of delay, the
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
first question to be looked at is the reason for delay as also the
seriousness of the offence. The court held that delay by itself is no
ground for initiating quashing proceedings.
d. It is stated that the investigation is complete and the charge sheet has
been prepared and is pending before the competent authority for grant
of sanction. He further states that this Hon'ble Court can consider the
investigation and the material gathered by the investigating agency,
forming part of the charge sheet, at the time of adjudicating the
present writ petition in view of the Judgment passed in 'Abhishek
Gupta & Anr. v. State of NCT of Delhi & Anr.' [Crl.MC. 1064/2022
decided by Delhi High Court on 16.03.2022], wherein it is held that:
"If the allegations made in the FIR or complaint or the
evidence collected, though remaining uncontroverted, do not
disclose the commission of an offence, then the FIR and
charge-sheet could be quashed."
e. He submits that in the present case, on a proper conspectus of the
material gathered by the investigating agency, no case for quashing of
FIRs is made out. There are other accused persons in the charge sheet
in addition to the Petitioner; the cause of action is different and in the
above-mentioned FIRs, the co-accused are different in each of the
FIRs. Therefore, all the FIRs are distinct offences wherein the
beneficiaries as well as suppliers are different.
f. With regards to the allegations in FIR No. 01/2012, he states that it
was revealed in the enquiry that after supply of about 57,00,000/-
pairs of sterile gloves through its supplier, M/S Pharmatek India
during the first year of the rate contract, M/s MRK Healthcare refused
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
to further supply surgical gloves. On this refusal, I/C CPA and the
Petitioner (DHS) maliciously cancelled the contract in haste and
intimated all hospitals to make their own arrangements regarding
procurement of sterile gloves. Due to this, all hospitals directly placed
orders for sterile gloves to M/s MRK Healthcare due to which a loss
of Rs. 98,98,391/- was caused to the exchequer and gain to M/s MRK
Healthcare.
g. With regards to the allegations in FIR No. 02/2012, he states that
during enquiry it was revealed that the pronouncement of sutures by
CPA at higher rates was not finalised by SPC. In fact, it was the In-
charge CPA and DHS who took this decision to purchase sutures at
higher rates i.e., at Rs. 2201/-. Furthermore, the firm had submitted a
forged Manufacture and Marketing Standing Certificate bearing no.
Cert./MSC-68/2019-2009/I dated 29.10.2009 at the time of tender
which was not issued by Food & Drugs Administration, Thane.
h. With regards to the allegations in FIR No. 04/2013, he states that
investigation has revealed that DDU hospital had issued supply order
for Rs. 24,51,000/- and Rs. 46,64,000/- for purchase of sterile surgical
gloves in favour of M/s Lord Krishna Company and M/s Colour Life
Science respectively. These orders were issued on the basis of the
letter dated 29.03.2011, purported to have been issued by Dr. A.K.
Chatterjee, Addl. Medical Supdt./Purchase Officer, GTB Hospital,
Dilshad Garden, Delhi to Purchase Officer, DDU Hospital, Delhi
intimating the approved rates of the gloves @ Rs. 12.90 per pair plus
VAT valid upto 31.08.2011. However, during verification, the said
letter was found to be forged. The Petitioner was the Medical Supdt.
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
at DDU Hospital at the time and was found to have violated the
mandatory provision of GFR which states that in a single purchase,
the amount cannot exceed Rs. 25 lacs but a supply order of Rs.
46,64,000/- was given to M/s Colour Life Sciences which led to filing
of FIR No. 04/2013. Thus, the respondent argues that the Petitioner
played a key role in the conspiracy to commit offences under PC Act
and IPC.
i. I have heard learned counsel for the parties and have gone through the
material documents.
j. I am of the view that the impugned FIRs in the present case are to be
quashed.
k. At the outset, what weighs with me for quashing of the FIRs is the
delay in investigation and filing of charge-sheet. In the present case,
allegations in the FIR are of the year of 2012 and 2013. The complaint
was made two years after the date of the incident and the FIR was
registered 6 months thereafter. The delay in registering FIR is fatal.
Moreover, the respondent took more than 10 years to finalise the
charge-sheet.
l. In this matter, arguments were concluded on 07.07.2022 and the
judgment was reserved. However, there was some confusion with
regards to the filing of the chargesheet as in the written arguments on
behalf of the respondent, it has been stated in para no. 8 that
chargesheet has been filed but in the subsequent para no.12, it is stated
that the chargesheet has been prepared but is now pending before the
Competent Authority for grant of sanction. Hence, the matter was put
up for clarification on 06.10.2022 wherein, the parties have clarified
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
that the chargesheet is yet to be filed as it is awaiting sanction.
6. According to Article 21 of the Constitution, the petitioner is entitled
to the right to speedy investigation and trial. The Apex court in A R
Antulay v. R S Nayak (1992) 1 SCC 225 has identified that "Right to
speedy trial is the right of the accused." Reliance is also placed on
Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355 wherein, it
was held:
"24. It is, therefore, well settled that the right to speedy trial in
all criminal persecutions (sic prosecutions) is an inalienable
right under Article 21 of the Constitution. This right is
applicable not only to the actual proceedings in court but also
includes within its sweep the preceding police investigations as
well. The right to speedy trial extends equally to all criminal
prosecutions and is not confined to any particular category of
cases. In every case, where the right to speedy trial is alleged to
have been infringed, the court has to perform the balancing act
upon taking into consideration all the attendant circumstances,
enumerated above, and determine in each case whether the
right to speedy trial has been denied in a given case."
7. The Supreme Court in Mahendra Lal Das v. State of Bihar and
Others (2002) 1 SCC 149 held the following:
"7. In cases of corruption the amount involved is not material
but speedy justice is the mandate of the Constitution being in
the interests of the accused as well as that of the society. Cases
relating to corruption are to be dealt with swiftly, promptly and
without delay. As and when delay is found to have been caused
during the investigation, inquiry or trial, the concerned
appropriate authorities are under an obligation to find out and
deal with the persons responsible for such delay. The delay can
be attributed either to the connivance of the authorities with the
accused or used as a lever to pressurise and harass the accused
as is alleged to have been done to the appellant in this case.
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
The appellant has submitted that due to registration of the case
and pendency of the investigation he lost his chance of
promotion to the post of Chief Engineer. It is common
knowledge that promotions are withheld when proceedings with
respect to allegations of corruption are pending against the
incumbent. The appellant has further alleged that he has been
deprived of the love, affection and the society of his children
who were residing in a foreign country as on account of the
pendency of the investigation he could not afford to leave the
country.
8. This Court in Ramanand Chaudhary v. State of Bihar
quashed the investigation against the accused on account of not
granting the sanction for more than 13 years. The facts of the
present case are almost identical. No useful purpose would be
served to put the appellant at trial at this belated stage."
8. It is pertinent to note that CBI in the present case, had registered a
case bearing No. RC/DAI/2014/A/0036 dated 22.08.2014. The
petitioner filed a Writ Petition (Crl.) bearing no. 784 of 2021 titled
„Dr Sarbesh Bhattacharjee v. CBI‟ seeking quashing of the said RC.
The W.P. (Crl.) 784/21 was dismissed as infructuous vide order
29.07.2021 by this Hon‟ble Court as the CBI had filed its status report
dated 28.07.2021 before this Court wherein they submitted :
"3. That although the CBI registered the instant case against
Dr. S. Bhattacharjee, the then Director, DHC & Ors., however,
the allegations against Dr. S. Bhattacharjee has not
substantiated.
....
7. That the Petitioner/Applicant Dr. S. Bhattacharjee has not
been charge sheeted by the CBI as his involvement in the
conspiracy could not be established during the investigation."
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
9. Even though filing of the chargesheet does not preclude this court
from entertaining the present writ petitions as held by the Supreme
Court in Anand Kumar Mohatta v. State (NCT of Delhi) (2019) 11
SCC 706, however, in the present matters, investigation was
prolonged for over 10 long years and was immediately concluded
after filing of the present writ petitions by the Petitioner.
10. In the present matters, there is abuse of process of law. The impugned
FIRs were registered in 2012, more than 2 years after the alleged
offences and 6 months after the complaints were received by the
agency. Both FIR No. 1/2012 and FIR No. 2/2012 are registered on
the same day i.e., 10.01.2012 (though emanating from different
complaints). It is pertinent to note that the petitioner was suspended
vide order 02.11.2011, just 3 months before his superannuation on
31.01.2012. His suspension was set aside by CAT on 23.12.2011 but
the department did not implement the same. Hence, the petitioner
filed a Contempt Petition (CP) no. 6/2012 which was dismissed by
CAT on 06.01.2012. Interestingly, the petitioner never faced
departmental proceedings but was suspended, and is now receiving
provisional pension.
11. I find merit in the submission that FIR No. 01/2012, 02/2012 and
04/2013 have been filed as a counterblast to the contempt petition
filed by the petitioner.
12. There has been an inordinate delay of more than 10 years in filing the
charge-sheet, which is yet not filed for want of sanction. The delay in
investigation is not attributable to the petitioner. In my view, the
Respondent has not been able to justify the inordinate delay in filing
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
the charge-sheet and concluding the investigation.
13. The Apex Court in Pankaj Kumar v. State of Maharashtra (2008) 16
SCC 117 quashed the criminal proceedings on account of
"unwarranted prolonged investigations" that caused inordinate delay.
The court held as under:
"24. Tested on the touchstone of the broad principles,
enumerated above, we are of the opinion that in the instant
case, the appellant's constitutional right recognised under
Article 21 of the Constitution stands violated. It is common
ground that the first information report was recorded on 12-5-
1987 for the offences allegedly committed in the year 1981, and
after unwarranted prolonged investigations, involving
aforestated three financial irregularities; the charge-sheet was
submitted in court on 22-2-1991. Nothing happened till April
1999, when the appellant and his deceased mother filed
criminal writ petition seeking quashing of proceedings before
the trial court.
25. Though, it is true that the plea with regard to inordinate
delay in investigations and trial has been raised before us for
the first time but we feel that at this distant point of time, it
would be unfair to the appellant to remit the matter back to the
High Court for examining the said plea of the appellant. Apart
from the fact that it would further protract the already
delayed trial, no fruitful purpose would be served as learned
counsel for the State very fairly stated before us that he had
no explanation to offer for the delay in investigations and the
reason why the trial did not commence for eight long years.
Nothing, whatsoever, could be pointed out, far from being
established, to show that the delay was in any way attributable
to the appellant.
26. Moreover, having regard to the nature of the accusations
against the appellant, briefly referred to above, who was a
young boy of about eighteen years of age in the year 1981,
when the acts of omission and commission were allegedly
committed by the concerns managed by his parents, who have
since died, we feel that the extreme mental stress and strain of
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
prolonged investigation by the Anti-Corruption Bureau and the
sword of Damocles hanging perilously over his head for over
fifteen years must have wrecked his entire career.
27. Be that as it may, the prosecution has failed to show any
exceptional circumstance, which could possibly be taken into
consideration for condoning the prolongation of investigation
and the trial. The lackadaisical manner of investigation
spread over a period of four years in a case of this type and
inordinate delay of over eight years (excluding the period
when the record of the trial court was in the High Court), is
manifestly clear.
28. Thus, on facts in hand, we are convinced that the appellant
has been denied his valuable constitutional right to a speedy
investigation and trial and, therefore, criminal proceedings
initiated against him in the year 1987 and pending in the Court
of the Special Judge, Latur, deserve to be quashed on this short
ground alone." (emphasis supplied)
14. From the aforesaid, what can be culled out is that Article 21
recognises the right of speedy trial. The respondent/prosecuting
agency must justify the reason for inordinate delay. The delay should
not be attributable to the acts of the petitioner.
15. In the present case, there has been an inordinate and unexplained
delay in completing the investigation on the part of the prosecution.
The Petitioner has always cooperated and joined the investigation
whenever called upon.
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
16. Thus, the delay in the investigation is not attributable to the Petitioner.
The chargesheet has not been filed even till 06.10.2022 and is
awaiting sanction. The sword has been hanging on the head of the
petitioner for no fault of his.
17. The recent judgment of the Apex Court titled Vijay Rajmohan v.
State Criminal Appeal No. 1746 of 2022 is distinguishable on facts.
In the case of Vijay Rajmohan (supra) the sanction was granted after
1 year and 10 months and the same was considered to be not fatal
whereas, in the case on hand, the chargesheet has not been filed over a
decade for want of sanction.
18. What weighs with me is not only the fact that the chargesheet is still
awaiting sanction before the competent authority but also the
inordinate and unexplained delay in conducting the investigation for
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
10 long years.
19. The incidents mentioned in the FIR are more than a decade old and
hence, serious prejudice would be caused to the petitioner if trial is to
be conducted on a chargesheet after more than a decade. The
petitioner cannot be made to undergo the agony of trial after a decade
of filing the FIRs.
20. For the aforesaid reasons, FIR No.01/2012, FIR No.02/2012 and FIR
No.04/2013 are hereby quashed on account of delay in investigation
and filing of chargesheet.
21. Since I am quashing the FIRs on aforesaid grounds, I do not deem it
fit to give findings on the merits or demerits of the allegations in the
FIRs.
22. Thus, the writ petitions are allowed.
23. The writ petitions along with applications are disposed of accordingly.
JASMEET SINGH, J
th
OCTOBER 14 , 2022 / (MS)
Click here to check corrigendum, if any
Signature Not Verified
ARORA
Signing Date:14.10.2022
18:31:36
