Dr. Lallukhum Fimate vs Cbi
2022 Latest Caselaw 434 Mani

                                                                                     Page |1


KABORA Digitally
       by
                 signed
                                        IN THE HIGH COURT OF MANIPUR
MBAM KABORAMBAM
       LARSON
                                                  AT IMPHAL

LARSON Date: 2022.10.15
       12:13:32 +05'30'                      Cril. Petition No. 36 of 2017

                               Dr. Lallukhum Fimate, aged about 65 years, s/o Late
                               H.L. Ngura of Langol near Shija Hospital, Imphal P.O.
                               & P.S. Lamphel, Imphal West District, Manipur.
                                                                    ....Petitioner/Accused

                                                   -Versus-


                               CBI, ACB-IMPHAL BRANCH.
                                                                .....Respondent/Complainant

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner :: Mr. Serto T. Kom, Advocate,

For the Respondent :: Mr. W. Darakishwor, Sr. PCCG

Date of Hearing and reserving Judgment & Order :: 13.06.2022

Date of Judgment & Order :: 10.10.2022

JUDGMENT AND ORDER (CAV)

This criminal petition has been filed by the

petitioner under Section 482 Cr.P.C. to quash the order dated

8.9.2017 passed by the learned Special Judge (PC) Act, Imphal

West in Special Trial (PC) Case No.12 of 2016 and charges

framed against him and the FIR in RC IMPH 2014 A 0005 YEAR

Cril. Petition No. 36 of 2017 Page |2

2014 registered under Section 120-B/420 IPC and Section

13(2) read with Sec. 13(1)9d) of P.C. Act.

2. The petitioner Dr. L.Fimate is the first accused in

Special Trial (PC) Case No.12 of 2016.

3. The case of the prosecution is that the CBI, ACB,

Imphal received information from a reliable source to the effect

that in the year 2006, the Department of Radiotherapy, RIMS,

Imphal received a project grant of Rs.5 crore for Regional

Cancer Centre Project from the Ministry of Health and Family

Welfare, Government of India and that Dr. L.Fimate, the then

Director, RIMS, Imphal (now retired) and Dr. Th.Tomcha Singh,

Professor of Head of Department (Radiotherapy), RIMS, Imphal

in conspiracy with each other and some unknown private

persons and by abusing their official positions made undue

favour to 6th respondent firm - M/s.MDS Nordion, Canada,

through its Indian based dealer M/s.Kirloskar Theratronics

Private Limited in purchasing Telecobalt machine flouting all

norms. It has been found that Telecobalt machine was

purchased at a very high price from Canada based company

through its India based dealer M/s.Kirloskar Theratronics

Private Limited ignoring low price quoted by M/s.Panacea

Cril. Petition No. 36 of 2017 Page |3

Medical Technologies Private Limited representing Bhabha

Atomic Research Centre [BARC], which had developed similar

type of machine having similar specifications satisfying all the

requirements of RIMS Hospital, Imphal. The specification of

BARC machine was identical except for one or two points. For

these points also M/s.Panacea Medical Technologies Private

Limited has submitted that they will incorporate those features

in their machine. The cost of the machine quoted by

M/s.Panacea Medical Technologies Private Limited was

Rs.1.59 crore including all taxes whereas the cost of the

machine quoted by M/s.Kirloskar Theratronics Private Limited

representing M/s.MDS Nordion Canada was Rs.2.47 crore

excluding taxes of around Rs.20 lakh. Thus, there was a price

difference of more than Rs.1 crore for which there is no proper

justification incurring this additional expenditure except for

causing undue favour to private party. Further, as per the

contract, 10% of the price was to be released to M/s.Kirloskar

Theratronics Private Limited only on the installation of the

machine. However, the accused officials released this 10%

amount also to private party without installation of the machine,

thus causing undue favour to the private party and

corresponding loss to the Government. From the facts and

Cril. Petition No. 36 of 2017 Page |4

circumstances, it is apparent that Dr. L.Fimate, the then

Director, RIMS, Imphal (now retired) and Dr. Th.Tomcha Singh,

HOD (Radiotherapy), RIMS, Imphal conspired with each other

and in furtherance thereto abused their official positions to

cause undue favour and pecuniary advantage to RIMS

dishonestly and corresponding loss to the Government. The

aforesaid facts and circumstances, prima facie, disclose the

commission of offences punishable under Section 120-B, 420

IPC and Sec.13(2) r/w 13(1)(d) of PC Act, 1988 on the part of

accused persons Dr. L.Fimate, the then Director, RIMS, Imphal

(now retired) and Dr. Th.Tomcha Singh, HOD (Radiotherapy),

RIMS, Imphal and unknown others. Hence, a regular case in

REIMPH 2014A0005 of 2014 was registered and the case was

taken up for investigation by the CBI.

4. After completion of the investigation, the CBI filed

charge sheet before the learned Special Judge, Imphal West.

The charge sheet reads thus:

"That the CBI, filed the charge sheet in connection with the above mentioned FIR No. RCIMPH 2014A0005 of 2014 on 11 April, 2016 before the Hon'ble court of the Ld. Special Judge, Imphal West, Manipur

Cril. Petition No. 36 of 2017 Page |5

the relevant portion of the said charge sheet is reproduced:

"Thus, investigation has conclusively established the conspiracy hatched between A-1 to A-3, Doctors of RIMS namely Dr. L. Fimate, Dr. Tomcha Singh, Dr. Shekarjit Singh who have missed their official position as Public Servants in favouring A-4, A-5 & A-6 i.e., Shahid Hassain, the then RM of Kirloskar Technologies Pvt Ltd., M/s. Kirloskar Technologies Pvt. Ltd. and M/s. MDS Nordion of CANADA in the award of tender of Telecobalt Machine i.e. "Theraton Equinox 100 SAD" manufactured by A-6 MDS Nordion of Canada costing Rs. 2,34.38,437/- over the Indian Machine Bhabhatron-II manufactured by M/s. Panacea Technologies and costing Rs.1 Cr less and in the process helping A-5 M/s.

Kirloskar Technologies getting a commission of Rs. 67,81,866/- for supply of a Machine that is still lying idle and yet to be made functional in RIMS

Cril. Petition No. 36 of 2017 Page |6

The aforesaid facts and circumstances constitute commission of offences punishable u/s 120-B, 420 IPC and Sec 13(2) r/w 13 (1) (d) of P.C. Act, 1988 on the part of the accused Dr. L. Fimate, the then Director, RIMS Imphal (now retired) (A-1), Dr. Th. Tomcha Singh, the then HOD (Radiotherapy), RIMS, Imphal (A-2), Dr. Shekarjit Singh, the then Director RIMS (A-3) and Mr. Shahid Hussain, the then Regional Manager/DGM (Sales) of Kirloskar Technologies (P) Ltd (A-4).

Whereas, the acts of the firms M/s. Kirloskar Technologies Pvt. Ltd. India through its MD (A-5) and M/s. MDS Nordion of Canada (A-6) through its Chief Operating Officer Scott Macintosh and presently through Best Theratronics of Canada and its Director Andrei Criesianu and through its Indian agent M/s. Kirloskar Technologies Pvt.

Ltd., New Delhi, India constitutes offence U/s 420 IPC

Prosecution craves leave for conducting further investigation U/s 173(8) Cr.PC and submission of

Cril. Petition No. 36 of 2017 Page |7

supplementary charge sheet, if need be with additional document and list of witnesses.

It is therefore prayed that the cognizance of the above mentioned offences may kindly be taken and be pleased to pass necessary order for issuance of process against the accused persons. Sanction for prosecution U/s 19(1)(c) of P.C. Act, 1988 against public servants Dr. Th.

Tomcha Singh, the then HOD (Radiotherapy), RIMS, Imphal (A-2) and Dr. S. Shekarjit Singh the then Director RIMS (A-3) have been obtained from the Competent Authority and enclosed herewith."

5. After filing of the charge sheet, the petitioner/first

accused filed petitioner under Section 227 Cr.P.C. seeking to

discharge him from the criminal case registered against him. By

the order dated 8.9.2017, the learned Sessions Judge rejected

the said application and framed the following charges against

the accused:

Cril. Petition No. 36 of 2017 Page |8

"Firstly, in the year 2006, both of you, Dr. Lallukham Fimate the then Director, RIMS, Imphal (now retired (A-1) and Dr. Thoudem Tomcha Singh (A-2) had conspired from the beginning to purchase the Tele Cobalt Machine for treatment of cancer patients manufactured by M/s. MDS Nordon, Canada (A-6) along with accused nos.4, 5 and 6 by proposing/making the technical specification of the said Tele Cobalt Machine which is available to the Machine manufactured by accused no.6 only; tender of purchasing the said Tele Cobalt Machine was done without following the GFR Rules; rejected the lower bidder of the Machine of Bhabhatron-II without giving proper reason and purchased the said Machine manufactured by A-6, and thereby committed an offence punishable under Section 120-B IC and within my cognizance.

Secondly: on 11-05-2007 at the PAB Meeting both of you by conspiring made to take decision to purchase the Tele Cobalt Machine manufactured by A.no.6 intentionally and also issued supply order without considering the technical specifications of Bhabhatron-II which can

Cril. Petition No. 36 of 2017 Page |9

be developed later on thereby causes loss of around Rs.1 crore to the RIMS Hospital as well as to the Govt. of India by favouring to accused nos.4, 5 and 6 and thereby committed an offence punishable under Section 420 IPC and within my cognizance.

Lastly: both of you during the said year and place being Director and Professor and HOD (Radiotheraphy), RIMS, Imphal had committed Criminal misconduct by purchasing the said Tale Cobelt Machine manufactured by A-6 without following the GFR by favouring the accused nos.4, 5 & 6 and by this aforesaid acts of omission and commission caused wrongful loss to the Government the tune of Rupees one crore and corresponding gain to themselves and thereby committed an offence punishable under Section 13(2) r/w 13(1)(d) of PC Act and within my cognizance.

And I hereby direct that you be tried on the said charge."

6. Feeling aggrieved by the framing of charges

against the petitioner/first accused and the dismissal of his

application for discharge, the petitioner/first accused has filed

the present petition.

Cril. Petition No. 36 of 2017 P a g e | 10

7. Assailing the impugned order and framing of

charges against the petitioner/first accused, Mr. Serto T. Kom,

the learned counsel for the petitioner submitted that the learned

Special Judge erred in rejecting the petition of the petitioner filed

under Section 227 Cr.P.C. and framed charges against the

petitioner only on the ground of purchasing Telecobalt machine

"Therratron Equinox 100 SAD" which is more expensive than

the Indian machine Bhabhatron-II, but which can be developed

later to add the lacking specifications. He would submit that the

learned Special Judge erred in framing charges against the

petitioner under Section 120-B/420 IPC and Section 13(2) read

with Section 13(1)(d) of the PC Act only because of the rejection

of the lower bidder of the machine Bhabhatron-II which in fact

is not a qualified bidder, as the said machine does not fulfil the

specifications of the said cancer treatment machine and that the

offence of criminal conspiracy is not made out by purchasing

the machine which fulfils all the specification by rejecting the

machine which does not fulfil the essential specifications,

cannot be held as an act of criminal conspiracy.

8. The learned counsel further submitted that the

learned Special Judge erred in holding that the machine can be

Cril. Petition No. 36 of 2017 P a g e | 11

developed later to fulfil the required specification, which means

the specifications were not available in Bhabhatron-II machine.

The selection and purchase of the best Telecobalt machine i.e.

"Theratron Equinox 100 SAD" manufactured by the 6 th

respondent, but also having fulfilled all the essential

specifications without which cancer patients will be exposed to

chances of being crushed by the machine, which other

machines does not fulfil cannot be made an offence.

9. The learned counsel would submit that the

selection and purchase of Telecobalt machine which only fulfils

the specifications made in the tender cannot be made an

offence only because the price is higher than the price of

machine quoted by other tenderers whose machine does not

fulfil the specification and that the learned Special Judge ought

to have appreciated that there is no mensrea attributed to the

petitioner.

10. The learned counsel urged that the petitioner was

performing his duty of procuring the best Telecobalt machine for

RIMS. Further, there is no allegation that the petitioner had

gained anything out of the purchase of the best Telecobalt

machine available and that the learned Special Judge ought to

Cril. Petition No. 36 of 2017 P a g e | 12

have appreciated that if, for argument sake, Bhabhatron-II

machine was bought with the missing features/specification,

Bhabhatron-II machine could had endangered the lives of

patients which are being treated with the said machine.

11. The learned counsel then submitted that there is

no allegation in the FIR or the charge sheet that the price which

was quoted was inflated or more than the market price of the

machine offered by the 6th respondent and that there is no

offence made out against the petitioner under any of the

provisions for which the petitioner has been charged under

Section 120-B/420 IPC and Section 13(2) read with Section

13(1)(d) of the PC Act. According to the learned counsel, the

present proceedings against the petitioner is abuse of the

process and this Court by exercising jurisdiction under Section

482 Cr.P.C. quash the criminal proceedings including the

charge sheet and FIR against the petitioner as power to quash

criminal proceeding at any stage is permissible under law.

Thus, a prayer is made to set aside the order dated 8.9.2017 as

well as the charges framed against the petitioner on the same

date. To fortify his submissions, the learned counsel for the

petitioner placed reliance upon the following decisions:

Cril. Petition No. 36 of 2017 P a g e | 13

(1) Pepsi Food Limited v. Judicial

Magistrate, (1998) 5 SCC 749

(2) G.Sagar Suri v. State of UP, (2000) 2

SCC 636

12. Per contra, the learned counsel for respondent

CBI submitted that Rs.5 crore was sanctioned and released by

the Ministry of Health and Family Welfare (Cancer Research

Desk), Government of India to the Regional Cancel Centre,

RIMS, Imphal under the National Cancer Programme. Out of

Rs.5 crore, Rs.1.5 crore was earmarked for construction of

building and Rs.3.5 crore for purchase of equipments for

Radiotherapy and other surgical Oncology. However, the

sanctioned amount of Rs.5 crore was deposited to the

Allahabad Bank, Paono Bazar Branch, Imphal in the form of FD

on 21.7.2006 as per the direction of the petitioner instead of

utilising for the purpose for which it was sanctioned.

13. The learned counsel further submitted that the

second accused proposed for the purchase of Telecobalt

machine and submitted technical specifications on 29.12.2006

with a note that the equipment with specified features was

available with M/s. Kirloskar Theratronics only, but in fact these

Cril. Petition No. 36 of 2017 P a g e | 14

technical specifications were nothing but general features of

telecobalt equipment manufactured by the 6th respondent

provided to the RIMS by M/s. Kirloskar, the authorised agent

(Indian supplier) of the 6th respondent and these specifications

were incorporation in the tender notice and, as such, the tender

specifications were tailor made only to suit the 6th respondent.

14. The learned counsel would submit that the second

accused Dr. Th. Tomcha Singh had sent tender notice with

enclosures for supply of Telecobalt machine to the 6th

respondent through its authorised agent M/s.Kirloskar without

first fulfilling the minimum requirements of staff to make the

machine operational on its installation, as no recruitment was

done and this goes to show that the intention to purchase the

machine was not for installation and use of the machine for

treatment of cancer patients and thus, the machine had been

lying unused without installation in the Department of

Radiotherapy, RIMS till 10.10.2014.

15. The learned counsel for CBI urged that all the

formalities for purchase of equipment were completed hurriedly

- short tender notice was issued on 1.3.2007 for supply of

Telecobalt machine with last date of submission of tender being

Cril. Petition No. 36 of 2017 P a g e | 15

15.3.2007 even before the room for keeping the Telecobalt

machine was made ready, violation the provision of General

Financial Rules, instead of giving wide publicity in the leading

nation new papers, it was published only in one newspaper i.e.

The Assam Tribune on 8.3.2007 and no date of opening of the

tender quotation was provided in the notice inviting tender, no

foreign manufacturer can participate in a tender which is not a

global tender, all the tender formalities were completed by the

5th accused M/s. Kirloskar which was an authorised agent of the

6th respondent M/s. MDS Nodion, Canada, the sealed tender

was personally delivered to RIMS by the 4th accused Shahid

Hussain, the then Regional Manager of M/s.Kirloskar, which

should sent through post or courier.

16. The learned counsel further submitted that the

RIMS authority had accepted the tender quotation of the 6th

respondent and had shown favour to the 6th respondent and

vide letter dated 1.3.2007, copies of tender notice with

enclosures for supply of Telecobalt machine was sent to M/s.

Kirloskar by the dealing assistant Shri N.Tamardhaja Singh on

the instruction of the petitioner/first accused through couriers

without any request being made by the firms which is against

Cril. Petition No. 36 of 2017 P a g e | 16

the instructions of the tender notice. Five numbers of sealed

tender quotations were received from the firms.

17. The learned counsel next submitted that

M/s.Panacea Medical Technologies Private Limited proposed

to supply Telecobalt machine named Bhabhatron-II

indigenously developed by Bhabha Atomic Research Centre

and quoted price of Rs.1.59 crore inclusive of all taxes, but the

6th respondent proposed to supply Theratron Equinox 80

Telecobalt equipment and quoted a price of Rs.2.47 crore

excluding taxes in addition customs duty was to be paid by the

purchaser, as the machine had to be imported into India from

Abroad.

18. He submits that sealed tenders were opened on

23.3.2007 by the Tender Opening Committee of RIMS,

however, the Committee intentionally ignored the fact that the

tender quotations were delivered by hand and went ahead with

the proceedings and the Managing Director of M/s.Panacea

Medical Technologies Private Limited was not allowed to

participate in the bidding process of the tender on the ground

that there was unrest going on in the city. A meeting of the

Purchase Advisory Board (PAB) of the RIMS was held on

Cril. Petition No. 36 of 2017 P a g e | 17

11.5.2007 in the chamber of the Director, RIMS for evaluation

of the tenders received and the PAB recommended for

purchase of Theratron Equinox 100 SAD of the 6 th respondent

on the basis of the comparative statement for Telecobalt

machine prepared by the second accused since the

specification of Bhabhatron-II furnished by M/s.Panacea

Medical Technologies Private Limited, Bangalore was not found

matching with the specification as he falsely projected that

Bhabhatron-II lacks in so called three essential features. The

intention from the beginning was to favour the 6th respondent

for supply of Telecobalt machine through its Indian agent

M/s.Kirloskar.

19. The learned counsel next submitted that the

petitioner issued supply order dated 24.9.2007 to the 6th

respondent ignoring the low price quoted by M/s.Panacea

Medical Technologies and also without attending to the

suggestion made by PAB. Thus, the learned counsel urged that

the investigation clearly established the conspiracy hatched

between accused 1 to 3, who have misused their official position

of public servants in favouring accused 4 to 6 in the award of

tender of Telecobalt machine i.e. "Theratron Equinox 100 SAD"

Cril. Petition No. 36 of 2017 P a g e | 18

manufactured by the 6th respondent costing Rs.2,34,38,437/-

over the Indian machine Bhabatron-II manufactured by

M/s.Panacea Technologies and costing Rs.1 crore less and in

the process of helping, M/s.Kirloskar getting a commission of

Rs.67,81,866/- for supply of the machine that is still lying idle

and yet to be made functional in RIMS and the aforesaid facts

and circumstances constitute commission of offences

punishable under Section 120-B/420 IPC and Section 13(2)

read with Section 13(1)(d) of PC Act, 1988. In support, the

learned counsel relied upon the following decisions:

(1) Madhu Koda v. State, through CBI, Criminal Appeal No.1186 of 2017, dated 22.5.2020 on the file of the Delhi High Court.

(2) Neera Yadav v. CBI, (2017) 8 SCC 757. (3) R.Venkatkrishnan v. CBI, (2009) 11 SCC

(4) CBI, Hyderabad v. K.Narayana Rao, (2012) 9 SCC 512.

20. This Court considered the rival submissions and

also perused the materials available on record.

21. The case of the petitioner is that the allegations

made in the FIR and the charge sheet are so absurd and

Cril. Petition No. 36 of 2017 P a g e | 19

inherently improbable on the basis of which no prudent person

can ever reach a just conclusion that there is sufficient ground

for proceeding against the petitioner/first accused; the entire

allegation made in the charge sheet does not make out any

criminal offence and as such the allegation in the charge sheet

does not even raise a suspicion on the petitioner of commission

of a criminal offence. In fact, there is no statement or averment

which cast a suspicion against the petitioner for a criminal

offence forgetting about the grave suspicion which is required

to proceed with the trial. Thus, there is no sufficient material for

proceeding against the petitioner and the statement of

witnesses recorded and on the basis of which the petitioner has

been charged by the prosecution are stereotyped and identical.

Even if the statements of witnesses are taken at face value, they

do not indicate mensrea on the part of the accused.

22. When the petitioner and others filed applications

under Section 227 Cr.P.C. before learned Special Judge to

discharge them from the offences alleged against them, the

learned Sessions Judge, by the impugned order has observed

as under:

Cril. Petition No. 36 of 2017 P a g e | 20

"On examining the said statements of N.Tamadhaja and others it is very clear that the accused no.2, Dr. Th. Tomcha Singh proposed to purchase of Telecobalt Machine submitted requisite technical specification which was available only to the Machine manufactured by Accused no.6. As per Rule 150 of GFT, for purchasing of any good above Rs.25 lacs open Tender by publication in at least one National daily having wide circulation is mandatory. If the good to be purchase is below 25 lacs, limited tender by sending tender notice by Speed Post/Registered post can be done. In the instant case the said Telecobalt Machine purchased from the accused no.6 is above Rs.25 lacs and thus, the tender process cannot be done on limited tender process. In other words, for purchasing of the said Telecobalt Machine, the tender should be through Open Tender and thus, publication of the tender in at least on National daily having wide circulation is mandatory. It is admitted fact that no publication was made in any National Daily News Paper.

Furthermore, it is also revealed that Tender notice was sent to the accused nos.4 and 5 by RIMS authority as instructed by accused nos.1 and 2 by Post. Situated thus, there is grave suspicion against the accused nos.1 and 2

Cril. Petition No. 36 of 2017 P a g e | 21

that they in conspiracy with accused no.4,5 and 6 had started process for purchasing Telecobalt Machine manufactured by accused no.6 and with malafide intention the accused no.2 submitted the requisite technical specification which are available only to the Telecobalt Machine manufactured by accused no.6 and conducted the tender process without following the General Finance Rules. More so, in the PAB meeting also there was no consideration of financial bid where the tender of Bhabhaton-II quoted 1.59 crore against Rs.2.47 crores quoted by accused no.6. Furthermore, since the requisite technical specification was made for the machine manufactured by accused no.6, other bidder having fewer specifications were rejected. Accused no.1 after selection of the machine of accused no.6 by the PAB held on 11.5.2007, surprisingly, wrote letters to AIMS on 28.5.2007, Radiological Safety Division, Atomic Energy Regulatory Board, Mumbai on 6.7.2007, the Director, Bhabha Atomic Research Centre, Mumbai on 06.06.2007. One Manjit Singh, Associate Director, BARC replied to Accused no.1 stating that in Bhabhatron-II, the main requisite features of Telecobalt machine such as Isocentric at 100 cm, Cobalt-60 source 250 RMM output &

Cril. Petition No. 36 of 2017 P a g e | 22

Collision detection device can be developed and the said Bhabhatron-II is technically at par with any other Telecobalt Machine manufactured elsewhere, however, the accused no.1 even knowing the said facts, issued supply order to accused no.6 which is very costly as well as the RIMS authority has to pay customs duty, etc. in addition to the cost of the Machine. The witness, G.V.Subramanyam has stated that he personally went to Imphal for participating in the bid held on 15.03.2007, but he was not allowed to take part in the bidding process on the ground that there was unrest in the city and on enquiry, Accused no.1 asked him to come on the next day, however, when he went on the next day he could not meet any official of RIMS. Investigation reveals that the accused no.4 had visited Imphal four times in connection of the Tender. Furthermore, it is an admitted fact that the said Telecobalt Machine manufactured by accused no.6 is not commissioned yet, but the accused no.3 having full knowledge of its non-commission had paid the remaining amount of 10% to accused no.6 and the accused no.2 also wrote letter to the accused no.3 for payment of the said remaining 10%. There is also prima facie or grave suspicion that the accused nos.4,5

Cril. Petition No. 36 of 2017 P a g e | 23

and 6 had fraudulently or dishonestly induced the accused nos.1 and 2 to purchase the Telecobalt Machine manufactured by accused no.6 prior to the starting of Tender process and also fraudulently and dishonestly induced accused no.3 for payment of remaining amount of 10% before commission of the said Telecobalt Machine thereby cheated the RIMS Authority and the Government of India."

23. At this juncture, the learned counsel for the

petitioner submitted that there was proper application of mind

and detailed consideration before and after it was decided by

the PAB to procure Telecobalt machine of the 6 th respondent.

In fact, the PAB comprising of experts from AIIMS and the Union

Health Ministry, had minutely considered the specification of

each of the machines offered by the five firms and has taken an

informed decision. He would submit that the PAB further gave

its reason selecting the Theratron Telecobalt machine over

others as follows:

 Nearly 50 years of DS Nordion Versus 4

years for Panacea Technology, no

experience of the remaining three firms.

Cril. Petition No. 36 of 2017 P a g e | 24

 More than 90% of Cobalt machine available

in India today belongs to MDS Nordion

Company.

 In the premier Institutions of our country like

AIIMS, TMS, PGI Chandigarh and several

other Regional Cancer Centres, the Cobalt

machines which are being used belong to

MDS Nordion only.

 MDS Nordion is the only Company which

supplied this machine to the Institution at

RIMS earlier.

 The experience at RIMS for the last fifteen

years have been very good in using the

Cabalt-60 machine which has been supplied

by MDS Nordion and there was no major

breakdown in the experience of RIMS since

last fifteen years. Even in the entire North

Eastern Region all the Cobalt-60 machines

which are functioning belongs to MDS

Nordion.

Cril. Petition No. 36 of 2017 P a g e | 25

 While so, the learned Special Judge erred in

rejection the petition of the petitioner and also

erred in framing charge against the

petitioner/first accused.

24. As could be seen from the records, the tender

notice for supply of Telecobalt machine was issued on 1.3.2007

by the Director, RIMS [petitioner] inviting firms/manufacturers

for supply of Telecobalt machine with accessories to RIMS,

Imphal The terms and conditions stipulate specifications of the

equipment/machine. Five firms, namely (1) M/s.Alliance

Biomedica Private Limited, Chennai; (2) M/s.Syscop Impex

Private Limited, Kolkata; (3) M/s.Mehta Agencies Limited,

Kolkata; (4) M/s.Panacea Medical Technologies Private

Limited; (5) M/s.MDS Nordion, Canada have submitted their

tender quotations. Since Serial Nos.1 to 3 are not meeting the

majority of the specifications of Telecobalt machine and the

fourth firm - M/s.Panacea Medical Technologies was not

meeting the major features of the tender specifications, the

tender quotation of the 6th respondent was accepted. As far as

rates quoted are concerned, the first three firms quoted the

rates ranging from Rs.2,98,40,000/- and Rs.3,05,15,000/-,

Cril. Petition No. 36 of 2017 P a g e | 26

while the fourth firm M/s.Panacea quoted Rs.1.59 crores and

M/s.MDS Nordion quoted 2.47 crore.

25. In order to select the firm for supply of Telecobalt

machine, namely Theratron Equinox 100 SAD, the PAB of

RIMS held a meeting on 11.5.2007 chaired by the petitioner;

expert member and five other members and the members of

PAB have unanimously recommended the purchase of

Theratron Equinox 100 SAD manufactured by the 6 th

respondent M/s.Nordion Canada, as the said machine fulfils all

specifications, whereas others does not fulfil the prescribed

specifications. The PAB also given its justification for

recommending Telecobalt machine offered by the 6 th

respondent. After the recommendation and decision of the

PAB, M/s.Panacea sent a clarification to the Director of RIMS

dated 12.5.2007 stating that they have quoted for Bhabhatron-

II with 100/80 Cm and are unable to supply both 100 Cm and

80 Cm machine at the same price and requested the Director

to order either 100 Cm or 80 Cm so as to supply as per the order

and informed that there is no differential in pricing. In the said

clarification, it has been stated that their machine has inbuilt

anti-collusion device and collusion detection device.

Cril. Petition No. 36 of 2017 P a g e | 27

26. After the aforesaid clarification by the

M/s.Panacea, on 6.6.2007, the Director addressed a letter to

the Director of Bhabha Atomic Research Centre requesting him

to give information on Bhabatron-II and also sought information

as to whether Bhabatron-II (cancer treatment machine)

provides (i) Isocentric at 100 cm; (ii) Cobalt-60 source 250 RMM

output and (iii) Collision detection device specifications. The

Director of BARC sent a reply clarifying that the collision

detection device can be added and it is possible to implement

SAD at 100 Cm. The Scientific Officer of the Atomic Energy

Regulatory Board vide its letter dated 8.6.2007 clarified that

Bhabhatron-II has only SAD of 80 Cm. and it does not have any

anti-collision device. On confirmation of the fact that

Bhabhatron-II does not fulfil the specifications i.e. collision

detection device and Isocentric at 100 CM, the then Director of

RIMS, the petitioner herein, vide supply order dated 24.9.2007,

informed the 6th respondent for supply of their Theratron

Equinox 100 SAD.

27. The allegation against the petitioner/first accused

is that even knowing Bhabhatron-II is technically at par with any

other Telecobalt machine manufactured elsewhere, issued

Cril. Petition No. 36 of 2017 P a g e | 28

supply order to the 6th respondent which is very costly. The

petitioner wrote letters to AIIMS, Atomic Energy Regulatory

Board and Bhabha Atomic Research Centre seeking

information on Bhabhatron-II and only after satisfying the reply

received from the aforesaid authorities that Bhabhatron-II does

not fulfil the specifications made supply order to the 6 th

respondent on 24.9.2007 requesting them to supply their

Theratron Equinoc 100 SAD.

28. The purchase of Theratron Equinox (Telecobalt

machine) from the 6th respondent is not on the sole decision of

the petitioner/first accused and on the other hand, the purchase

was based on the recommendation of PAB, which consist of

Expert Member of AIIMS, New Delhi, namely Prof.G.K.Rath and

other Members who are from RIMS Hospital, Imphal, Prof. &

HOD of Radiotherapy Department, RIMS, Imphal, Additional

Director (MC), Health Department, Government of Manipur,

Deputy Director (Admn), RIMS, Imphal and Chief Accounts

Officer-cum-Financial Advisor, RIMS, Imphal and the decision

is also unanimous one for procuring Theratron Equinox 100

SAD from the 6th respondent.

Cril. Petition No. 36 of 2017 P a g e | 29

29. It is pertinent to note at this juncture that the Expert

Member G.K. Rath while deposing as P.W.9 in Special Trial

Case No.12 of 2016, stated that he put his signature on the

proceeding of PAB and he confirmed that PAB was constituted

for purchasing Telecobalt machine for RCC, RIMS Imphal. In

his evidence, he stated that they decided to select the machine

which was offered by the 6th respondent M/s.MDS Nordion

Canada on the following reasons:

 It met all the technical specifications

which were advertised in the tender

notice.

 It has maximum number of machines

supplied in the country.

 RIMS also using a similar machine form

MS MDS Nordion.

 It has all the features of patient safety

which of permanent important in the life

saving machines.

30. In his evidence, he also deposed that

M/s.Panacea Medical Technologies Private Limited did meet

everything, but the major one like anti-collision device which is

Cril. Petition No. 36 of 2017 P a g e | 30

very important for ensuring the safety of the patient during

treatment was not available with this machine. He further stated

that in AIIMS, they are using three such Telecobalt machines.

There are two types of Isocentric machines available in the

market i.e. 80 Cm and 100 Cm. 100 Cm is advantageous than

80 Cm because it is beneficial effect on the patient. The

penetration depth of 100 Cm is more than 80 Cm machines so

it can treat tumors at deeper position. He specifically stated that

Bhabhatron-II did not have the anti-collision device.

31. While that being the evidence of the Expert

Member, it cannot be said that by playing fraud, purchase order

was issued to the 6th respondent for purchase of Telecobalt

machine from them and also dishonestly induced money. The

CBI itself admitted that there is nothing which has been received

or taken by the petitioner/first accused in the whole transaction.

As stated supra, the only role played by the petitioner/first

accused in issuing the purchase order is he headed the PAB

and after a unanimous decision of PAB, he placed the order for

purchase of Telecobalt machine, namely Theratron Equinox

100 SAD to the 6th respondent.

Cril. Petition No. 36 of 2017 P a g e | 31

32. The selection and purchase of Telecobalt machine

which only fulfils the specifications made in the tender cannot

be made an offence only because the price is higher than the

price of machines quoted by other tenderers whose machine

does not fulfil the specification. Therefore, it cannot be

contended that the petitioner despite knowing that Bhabhatron-

II is technically sound on par with Theratron Equinox 100 SAD

and also cheaper issued the supply order in conspiracy with the

other accused. Admittedly, at the relevant point of time, the

petitioner performed his duty for procuring the best Telecobalt

machine for RIMS.

33. Further, the alertness of the petitioner immediately

after the receipt of a letter from M/s.Panacea claiming that they

had desired specifications, the petitioner immediately wrote to

various authorities, including BARC for confirmation of the claim

made by M/s.Panacea. The aforesaid act of the petitioner

clearly confirms the diligence of the petitioner and this cannot

be read as a criminal intent by any measure. However, the

learned Special Judge, while discussing the issue has failed to

appreciate all these things and, in fact, the learned Special

Judge ought to have appreciated that the petitioner only after

Cril. Petition No. 36 of 2017 P a g e | 32

getting a confirmation/reply from the very Institute which

developed Bhabhatron-II did not have the required

feature/specification have acted upon the procurement of the

Telecobalt machine manufactured by the 6th respondent

M/s.MDS Nordion.

34. There is no dispute that Bhabhatron-II was

commissioned in the year 2006, when M/s.Panacea had offered

the machine in the year 2007, whereas the 6th respondent

M/s.MDS Nordion has been manufacturing Telecobalt machine

for the last more than 50 years used by all premier Institutes in

India. This would clearly indicate that there is a clear distinction

be drawn between Bhabhatron-II and Theratron Equinox about

their lineage and reliability, apart from missing specifications in

Bhabhatron-II. In fact, the Expert Member G.K.Rath in his

evidence stated that even till now the AIIMS using three such

Telecobalt machines. This would clearly shows that Telecobalt

machine of the 6th respondent is beneficial to that of

Bhabhatron-II, as anti-collision device which is very important

for ensuring the safety of the patient during treatment was not

available in Bhabhatron-II. The expert also opined that anti-

collision device is very important specification, because in its

Cril. Petition No. 36 of 2017 P a g e | 33

absence the head of the machine can hit the patient which can

be very harmful to the patient. Therefore, logically speaking,

the specifications in Bhabhatron-II are not upto the

requirements of RIMS, apart from absence of anti-collision

device, which is very much available in Telecobalt machine

manufactured by the 6th respondent.

35. The arguments of the learned counsel for the CBI

that the witness G.V.Subrahmanyam has stated that he

personally went to the Imphal for participating in the bid held on

15.3.2007, but he was not allowed to take part in the bidding

process on the ground that there was unrest in the city and on

enquiry, the petitioner asked him to come on the next day,

however, when he went next day, he could not meet any official

of RIMS are all nothing but a wordings only. Admittedly, to

prove the same, nothing has been produced by the CBI.

36. It is the submission of the learned counsel for the

CBI that the petitioner/first accused committed the offence

under Section 420 IPC, as he has managed to purchase

Telecobalt machine in collusion with other accused in order to

have wrongful gain for the 6th respondent through its authorised

agent M/s.Kirloskar and that is why the petitioner invited tender

Cril. Petition No. 36 of 2017 P a g e | 34

in collusion of the second accused without following the

mandatory norms prescribed in the GFR. The argument of the

learned counsel for the CBI is without any basis. Having

participated and failed in the tender process, either

M/s.Panacea Medical Technologies Private Limited or the

respondent CBI cannot contend that the petitioner/first accused

managed to purchase Telecobalt machine in collision with other

accused in order to have a wrongful gain for the 6th respondent.

37. On a reading of the impugned order, the learned

Special Judge erred in rejecting the petition for discharge and

framed charges against the petitioner/first accused. Prima

facie, there is no offence made out against the petitioner and on

a perusal of the FIR, there is no allegation in the FIR or the

charge sheet that the price which was quoted was inflated or

more than the market price of the machine offered by the 6 th

respondent. Therefore, the continuation of the criminal

proceedings against the petitioner/first accused is abuse of the

process of law.

38. At this stage, the learned counsel for the petitioner

submitted that though trial has begun, since there is no offence

made out against the petitioner/first accused, the High Court

Cril. Petition No. 36 of 2017 P a g e | 35

under Section 482 of Cr.P.C. has inherent power to quash the

criminal proceedings at any stage to prevent abuse of process

of any Court or otherwise to secure the ends of justice. This

Court finds some force in the submission made by the learned

counsel for the petitioner.

39. In Pepsi Foods Limited, supra, the Hon'ble

Supreme Court held:

"29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has

Cril. Petition No. 36 of 2017 P a g e | 36

come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused". We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appear before the court and move an application under Section 245(2) of the Code and that the Magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants do not make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such

Cril. Petition No. 36 of 2017 P a g e | 37

allegations. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturers of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as Accused 3.

The preliminary evidence on which the first respondent relied in issuing summons to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short "the Fruit Order"). It is not disputed that the beverage in question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is

Cril. Petition No. 36 of 2017 P a g e | 38

required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirements is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of the manufacturer shall also be exhibited prominently on the side label on such bottle [clause (8)(1)(b)]. Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in Hamdard Dawakhana (Wakf) v. Union of India [AIR 1965 SC 1167 : (1965) 2 SCR 192] an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could

Cril. Petition No. 36 of 2017 P a g e | 39

have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof."

40. In Sagar Suri, supra, the Hon'ble Apex Court held:

"7. It was submitted by Mr. Lalit, learned counsel for the second respondent that the appellants have already filed an application in the Court of Additional Judicial Magistrate for their discharge and that this Court should not interfere in the criminal proceedings which are at the threshold. We do not think that on filing of any application for discharge, the High Court cannot exercise its jurisdiction under Section 482 of the Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 and Ashok Chaturvedi v. Shitul H. Chanchani (1998) 7 SCC 698 wherein it has been specifically

Cril. Petition No. 36 of 2017 P a g e | 40

held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial."

41. Inherent power of the High Court under Section

482 of Cr.P.C. to quash the criminal proceedings, including

charge sheet and FIR has been dealt with by the Hon'ble Apex

Court in the cases of State of Haryana v. Bhajan Lal, (1992)

Supp(1) SCC 335; Renu Kumar v. Sanjay Kumar, (2008) 12

SCC 346; P.Vijayan v. State of Kerala. (2010) 2 SCC 398;

Yogesh v. State of Maharastra, (2008) 10 SCC 394.

42. In Bhajan Lal, supra, the Hon'ble Supreme Court

observed as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of

Cril. Petition No. 36 of 2017 P a g e | 41

law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under

Cril. Petition No. 36 of 2017 P a g e | 42

an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the

Cril. Petition No. 36 of 2017 P a g e | 43

institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

43. In Renu Kumar, supra, the Hon'ble Apex Court

held:

"9. Exercise of power under Section 482 CrPC in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of CrPC. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under CrPC, (ii) to prevent abuse of the process of court, and

Cril. Petition No. 36 of 2017 P a g e | 44

(iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision.

Inherent jurisdiction under the section, though wide, has to be exercised sparingly,

Cril. Petition No. 36 of 2017 P a g e | 45

carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.

9. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : (1960) 3 SCR 388] this Court

Cril. Petition No. 36 of 2017 P a g e | 46

summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. (AIR p.

869)

10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or

Cril. Petition No. 36 of 2017 P a g e | 47

whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this

Cril. Petition No. 36 of 2017 P a g e | 48

Court are as follows : (SCC pp. 378-79, para 102) '(1) Where the allegations made in the first information report or the 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as

Cril. Petition No. 36 of 2017 P a g e | 49

contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'

11. As noted above, the powers possessed by the High Court under Section 482 CrPC are very wide and the very plenitude of the power requires great

Cril. Petition No. 36 of 2017 P a g e | 50

caution in its exercise. The court must be careful to see that its decision, in exercise of this power, is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S.

Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to

Cril. Petition No. 36 of 2017 P a g e | 51

assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.

                         [See Dhanalakshmi v. R.                  Prasanna
                         Kumar [1990 Supp SCC 686 : 1991 SCC
                         (Cri)    142], State          of     Bihar v. P.P.
                         Sharma [1992 Supp (1) SCC 222 : 1992
                         SCC        (Cri)           192], Rupan       Deol

Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059], State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304], State of U.P. v. O.P.

Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497], Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 :

                         1999    SCC        (Cri)     1503]    and Rajesh




Cril. Petition No. 36 of 2017
                                                                        P a g e | 52

Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401].] The above position was again reiterated in State of Karnataka v. M.

Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri) 539], State of M.P. v. Awadh Kishore Gupta [(2004) 1 SCC 691 : 2004 SCC (Cri) 353] and State of Orissa v. Saroj Kumar Sahoo [(2005) 13 SCC 540 : (2006) 2 SCC (Cri) 272]."

44. In P.Vijayan, supra, the Hon'ble Suprme Court

held as under:

"10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:

"227. Discharge.--If,upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Cril. Petition No. 36 of 2017 P a g e | 53

If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. ......

25 [Ed.: Para 25 corrected vide Official Corrigendum No. F.3/Ed.B.J./30/2010 dated 23-2-2010.] . As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he finds that "there is not sufficient ground" for proceeding against

Cril. Petition No. 36 of 2017 P a g e | 54

the accused. In other words, his consideration of the record and documents at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time when a prima facie case was not disclosed and to save the accused from avoidable harassment and expenditure."

45. In Yogesh, supra, the Hon'ble Apex Court held:

"16. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

The test to determine a prima facie case

Cril. Petition No. 36 of 2017 P a g e | 55

depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible. (See State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533] and Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] .)"

46. At this juncture, the learned counsel for the CBI

submitted that the law is well settled that inherent jurisdiction of

the High Court under Section 482 Cr.P.C. though wide has to

be exercised sparingly, carefully and with caution and only

when it is justified by the tests specifically laid down in the

statute itself and further provided to protect and secure the ends

of justice. Thus, the plain reading of the provision indicates that

if the prima facie evidence is available during the course of

Cril. Petition No. 36 of 2017 P a g e | 56

investigation, the Court should not interfere during the

investigation or trial, so that the culprit may not be released

unpunished. He would submit since the trial has already started

and may be concluded very soon, this Court may be pleased to

allow to continue the trial till it completed so that the real culprit

may be punished according to law. As stated supra, the role

played by the petitioner in procuring the machine would not

attract any of the offence alleged against him.

47. A reading of the decisions relied upon by the

learned counsel for the respondent CBI, they are not applicable

to the facts and circumstances of the case and are

distinguishable. Therefore, the same are not elaborated further.

The decisions relied upon by the respondent CBI are in fact in

relation to the provisions of the offences alleged against the

accused, particularly, criminal conspiracy.

48. In CBI, Hyderabad v. K.Narayana Rao, (2012) 8

SCC 512, the Hon'ble Apex Court held:

"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said

Cril. Petition No. 36 of 2017 P a g e | 57

agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.

Cril. Petition No. 36 of 2017 P a g e | 58

49. Though the respondent CBI contended that the

petitioner/first accused with the collusion of the other accused

committed criminal conspiracy, as stated supra, nothing has

been produced to establish the same. There is no second

thought that the essence of criminal conspiracy is an agreement

to do an illegal act and such an agreement can be proved either

by direct evidence or by circumstantial evidence or by both and

in a matter of common experience that direct evidence to prove

conspiracy is rarely available.

50. In the case on hand, this Court is of the view that

the allegations levelled against the petitioner/first accused are

unfounded and therefore, the continuation of the criminal

proceedings against the petitioner/first respondent is abuse of

process of law.

51. The Hon'ble Apex Court, in a catena of decisions,

held that the Magistrate can discharge the accused at any stage

of the trial if he considers the charge to be groundless, but that

does not mean that the accused cannot approach the High

Court under Section 482 Cr.P.C. or Article 227 of the

Constitution of India to have the proceeding quashed against

Cril. Petition No. 36 of 2017 P a g e | 59

him when the complaint does not make out any case against

him and still he must undergo the agony of the criminal trial.

52. In the case on hand, as stated supra, the

involvement of the petitioner/first accused in the alleged crime

has not been established by the respondent CBI. The

allegations made in the FIR or the charge sheet even if we taken

at their face value, do not prima facie constitute any offence or

make out a case against the petitioner/first accused, as the

petitioner within an intention to procure best Telecobalt machine

issued tender notice and after following the tender process

issued supply order that too pursuant to the recommendation of

the PAB. Admittedly, by using his position as the then Director

of RIMS, the petitioner has not done any wrong and had not

committed any offence alleged against him with the collusion of

other accused. Therefore, continuation of the criminal

proceedings against him is in clear abuse of the process of law.

53. The purchase of Theratron Equinox 100 SAD of

the 6th respondent is not illegal, as it is not an offence and

assuming but not admitting that the purchase of the said

machine was done through illegal means but those illegal

means are not an offence against the petitioner. The rejection

Cril. Petition No. 36 of 2017 P a g e | 60

of Bhabhatron-II of M/s.Panacea is not illegal and also the said

machine does not fulfil the specifications. As there is no

allegation that Theratron Equinox 100 SAD of M/s.MDS Nordion

was purchased at a price higher than the market rate, there is

no issue of wrongful gain by the petitioner or wrongful loss by

RIMS etc. The available material on record would clearly show

that the petitioner/first accused has not deceived or dishonestly

induced anybody to deliver any property and in fact,

petitioner/first accused had tried to select the best Telecobalt

machine for the Institute and that there was no criminal intent in

any manner and also there is no valuable obtained or corrupt or

illegal means involved in the entire process of procuring the

Telecobalt machine.

54. At the end, it is reiterated that Section 227 of

Cr.P.c. was introduced to avoid wastage of public time when

prima facie case was not disclosed to save the accused from

avoidable harassment and expenditure. Finding that laying

charge sheet against the petitioner is without any ground and

he can be discharged from the offence, he filed an application

before the learned Special Judge to discharge him. On a

reading of the impugned order, the learned Special Judge has

Cril. Petition No. 36 of 2017 P a g e | 61

not discussed about the provision of Section 227 Cr.P.C.,

however erred in rejecting the petition and thereby framed

charge against the petitioner/first accused wrongly. Further, the

order of the learned Special Judge is one sided one. Since the

allegations in the FIR do not constitute a cognizable offence and

the allegations made in the FIR are so absurd, filing of charge

sheet and framing of charges against the petitioner/first

accused and also continuation of the criminal trial against him

is clear abuse of process of law. In such a situation, the judicial

conscience of the High Court would persuade it to exercise its

power under Section 482 Cr.P.C. to quash the criminal

proceedings initiated against the petitioner/first accused, who is

now retired from the post of Director of RIMS, in order to prevent

abuse of process of law and to secure the ends of justice.

55. For the foregoing discussions, this Court is of the

view that the Criminal Petition is liable to be allowed.

Resultantly, the order of the learned Special Judge (PC) Act,

Imphal West in Special Trial (PC) Case No.12 of 2016 dated

8.9.2017 directing to frame charges against the petitioner under

Section 120-B and 420 IPC and Section 13(2) read with Section

Cril. Petition No. 36 of 2017 P a g e | 62

13(1)(d) of the PC Act, 1988 and charges framed accordingly

against the petitioner/first accused are liable to be set aside.

56. In the result,

(1) Criminal Petition No.36 of 2017 is

allowed.

(2) The order dated 8.9.2017 passed by the

learned Special Judge (PC) Act, Imphal

West in Special Trial (PC) Case No.12

of 2016 directing to frame charges

against the petitioner/first accused

under Section 120-B and 420 IPC and

Section 13(2) read with Section 13(1)(d)

of the PC Act, 1988 is quashed.

Consequently, the charges framed

against the petitioner/first accused by

the learned Special Judge are also

quashed.

(3) No cost.

JUDGE

FR/NFR

-Larson

Cril. Petition No. 36 of 2017