Prof. (Dr.) Rabindra Kumar vs State Of Orissa (Vigilance) ..... ...
2025 Latest Caselaw 7082 Ori

Orissa High Court

Prof. (Dr.) Rabindra Kumar vs State Of Orissa (Vigilance) ..... ... on 16 April, 2025

Author: A.K. Mohapatra

Bench: A.K. Mohapatra

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                   CRLMC No.2969 of 2024

        An application under Section 482 of the Code of Criminal

Procedure, 1973.

Prof. (Dr.) Rabindra Kumar            .....                      Petitioner
Jena
                                                     Mr. Prateik Parija, Adv.



                              -versus-

State of Orissa (Vigilance)        .....                   Opposite Party
                                              Mr.Niranjana Maharana, A.S.C.
                                                      for the Vigilance Dept.




                              CORAM:

             JUSTICE A.K. MOHAPATRA

_____________________________________________________
Date of Hearing : 16.08.2024 | Date of Judgment: 16.04.2025
_____________________________________________________

A.K. Mohapatra, J. :

1. Heard learned counsel for the Petitioner as well as

learned Additional Standing Counsel for the Vigilance Dept.

Perused the CRLMC application, as well as other materials

placed on record.

2. The present CRLMC application has been filed by the

Petitioner under section 482 of the Cr.P.C, seeking quashing of

the entire criminal proceeding vide Cuttack Vigilance Cell P.S.

Case No. 19 of 2017 corresponding to VGR No. 64/17,

involving offences under section 13(2) read with 13(l)(c)(d) of

the P.C. Act, 1988 along with sections 409/420/34/120B of the

IPC, qua the petitioner, pending in the court of Ld. Special

Judge(Vigilance), Cuttack.

3. In the present matter, the FIR was lodged on

12.12.2017 by the Vigilance Dept. on the basis of the complaint

lodged by one S.K. Samal, DSP Vigilance Cell, Cuttack. In the

said F.I.R it has been alleged that the present Petitioner, who is

a reputed doctor of the state and has been engaged at SCB

Medical College & Hospital, Cuttack, has abused his official

position and in doing so, he has shown undue favour to various

pharmaceutical companies. The allegations also involve

violations of one „Odisha State Treatment Fund (OSTF)‟ which

was established by the State Governement in December of

2011 for providing respite to poor patients (under BPL

category) seeking treatment for fatal ailments such as cancer

and chronic heart ailments.

4. The essence of the prosecution‟s case and the heart of

the allegation against the present petitioner, as derived from the

FIR and the Submissions of the Learned Counsel for the

Opposite Party-Vigilance Department, is as follows;

a) The present petitioner, Prof. (Dr.) Rabindra Kumar

Jena, who was the HOD of the Hematology Department of

SCBMC & Hospital, Cuttack during the relevant period of

time (from the year 2013 to 2017), has been arraigned in

the present matter on the allegations of acquiring illegal

pecuniary benefits form pharmaceutical companies,

criminal misconduct and corruption. The FIR further

reveals that during the relevant period of time, the state

government launched an OSTF scheme to provide

financial aid and assistance to the tune of Two Lakh

Rupees to the ailing Blood Cancer patients that fell under

the BPL category. The State Government, for the said

purpose of treatment of the ailing patients, procured the

Chemotherapy drug "THYMOGAM", produced by

„Bharat Serum and Vaccines Ltd., Maharashtra‟.

b) Instead of prescribing the cheaper drug

"THYMOGAM" for the treatment of ailing patients, the

various doctors of SCBMC and the present petitioner, as

the HOD of the concerned department, have prescribed

the drug "ATGAM" (produced by the pharmaceutical

company „Pfizer‟) to 14 Nos. of patients contrary to OSTF

guidelines. As a result, the 1060 vials of „THYMOGAM‟

procured by the SDMU (State Drug Management Unit)

during 2013-2014 were left unused for months together. In

fact, the petitioner has also allegedly

compelled/pressurised patients to purchase the more

expensive „ATGAM‟ chemotherapy drug/injection.

c) It has been further alleged that the present petitioner,

being the HoD of the concerned department, instead of

restricting the doctors prescribing such expensive drugs,

forwarded the application along with other documentation,

on the recommendation of another co-accused (the nodal

officer), to the screening committee for sanction and

disbursal of the OST Fund in respect of the said 14

patients that were prescribed "ATGAM". The Screening

Committee has thereafter scrutinised the same and

disbursed the fund in favour of the government-

empanelled shop „HLL Lifecare Ltd.‟.

d) The prosecution-Vigilance Department has admitted

that no preliminary mandatory inquiry, by an expert

committee, was conducted in the present case prior to the

registration of the FIR against the petitioner-Prof. (Dr.)

Rabindra Kumar Jena. However, subsequent to the

registration of the FIR a medical team consisting of prof.

(Dr.) Srikant Mohanty, HOD, Pharmacology; Dr. Naresh

Pattnaik, Associate Professor (contractual), Clinical

Hematology Department and Dr. Prasant Kumar Parida,

Assistant Professor Medical Oncology of SCBMC &

Hospital, Cuttack was formed. The said medical team has

opined that the drug „ATGAM‟ should not be prescribed

to the 14 patients until the exhaustion of supply of

„THYMOGAM‟ available in the central store. The

medical team was also of the opinion that the drug

„HAMSYL‟ should not be prescribed in a routine manner

administered to the patients at the first instance without

any adverse reaction.

e) The petitioner has also been alleged to have caused

pecuniary loss to the government. It has been alleged that

during the relevant period a total of 190 vials of

„ATGAM‟, at the average cost of Rs.15,359 per vial, was

prescribed to 14 Nos. of patients. Out of the 14, 13

patients had to spend a further Rs.4,30,052 from their own

pockets. In the event the patients had been prescribed

„THYMOGAM‟, priced at Rs.7,858 per vial, then would

have had to spend Rs.1,17,870 over and above the allotted

fund instead of Rs.4,30,052/-. Additionally, the

prosecution has also stated that 33 Nos. of patients were

administered „HAMSYL‟ (by Emcure Pharmaceutical), of

which 8 were administered „HAMSYL‟ by the treating

doctors without any history of adverse reaction. The

prosecution has stated that „HAMSYL‟ is more expensive

compared to „L-asparaginase‟.

f) The petitioner has also been accused of violating ethical

conduct by accepting benefits in the shape of hospitalities,

travel benefits and accommodation from „Pfizer‟ and

„Emcure‟ (producer of the drug „HAMSYL‟) while

attending various conferences and seminars - despite the

Rs.1,50,000/- granted to him by the state government for

the same purpose - and showing undue favour to the

aforesaid two Pharma companies by persuading other

doctors of the department to prescribe the drugs

„ATGAM‟(prescribed to 14 Nos. of patients) and

„HAMSYL‟(prescribed to 33 Nos. of patients). Moreover,

it has been alleged that the petitioner‟s visit to and stay at

Minnesota University in 2013 was sponsored by Emcure

Pharma Company (the producers of „HAMSYL‟) to the

tune of Rs.3,90,000/-.

g) Furthermore, the petitioner has also entered into a

consultancy agreement with „Pfizer‟ for providing

consultancy advice in violation of the Medical Council of

India (MCI) Regulations and without permission of the

competent authority along with the State Government, as

is required under the service code and MCI Guidelines.

The petitioner has also been accused of travelling abroad

without requisite permission from the appropriate

Government. As such, it has been alleged that the

petitioner-Prof. (Dr.) Rabindra Kumar Jena has not only

entered into a criminal conspiracy with the above-

mentioned companies and as a result shown undue favour

to the said companies and facilitated pecuniary advantage

to the companies, but also caused huge losses to the

Government exchequer.

h) As to the delay in completion of the investigation, the

same is primarily due to collection of large number of

documents, communications and instruction from different

departments of the government, and examination of a

large number of witnesses and documents, for the purpose

of conducting a fair and proper investigation into the

matter of accumulation of disproportionate assets in the

case.

5. The learned Counsel appearing for the Petitioner has

outright refuted the insinuations and allegations made against

the petitioner and prayed for the quashing of the present

criminal proceeding bearing Cuttack Vigilance Cell P.S. Case

No. 19 of 2017 for alleged commission of offences under

Sections 13(1)(c)(d) and 13(2) of the P.C. Act along with

Sections 34/120B/409/420 of the IPC corresponding to VGR

Case No. 64 of 2017 pending in the court of the Learned

Special Judge (Vigilance), Cuttack. In abutment of the

petitioner‟s stance, the Learned Counsel for the Petitioner has

taken the following grounds;

a) That the mandatory procedure of conducting prior

inquiry, as directed by the NMC notification dated

29.09.2021 and the Hon‟ble Apex Court, by an Expert

Committee/Medical Board of the concerned field, having

no conflict of interest with the accused petitioner, has not

been followed in the present case.

b) That the doctors comprising the medical team are not

experts in treating Blood Cancer patients. Also, the said

medical team was formulated sufficiently after the

registration of the FIR. In fact, the opinion of the medical

team was not communicated to the petitioner and no

notice/opportunity was given to the petitioner to serve a

reply to the said opinion of the Medical Team.

Furthermore, one of the doctors in the medical team (Dr.

Naresh Pattanaik) has a conflict of interest with the

present petitioner on account of a prior legal battle

between the two. And two doctors in the said medical

team do not belong to the concerned field and lack

experience in treating patients ailing from Blood Cancer.

c) The prosecution has also failed to adduce the exact

provision or guidelines of the OSTF Scheme which the

petitioner has been alleged to have violated.

d) The prosecution has not pointed out any particular

direction/guideline under the OSTF Scheme or any other

law directing the doctors to prescribe drugs/medicines by

their generic molecular name instead of the specific name,

or vice versa. In fact no guideline exists under either the

OSTF Scheme or any other law directing the treating

doctors to prescribe cheaper drugs irrespective of its

efficacy or to not prescribe high cost drugs even if the said

drugs provided better results and were necessary for the

patients.

e) Furthermore, other connected persons, i.e. the

predecessor of the present petitioner who also adopted the

practice of prescribing drugs by their generic name instead

of their specific name and the treating doctors who have

actually prescribed the drugs „ATGAM‟ and „HAMSYL‟

have not been made accused in the present case.

Moreover, „Pfizer‟ company, to whom the petitioner has

been alleged to have shown undue favour, has also not

been arraigned as an accused in the present case.

f) The Learned Cousnel for the Petitioner has referred to

the case of one Shankar Mohanty wherein after exhaustion

of the OSTF limit, there was also a verbal instruction from

the government to provide best treatment to the patient

irrespective of the financial implications. As such, the

High Power Technical Committee of the State under the

chairmanship of the DMET sanctioned more funds for the

treatment of the said patient. Therefore, if the extra funds

expended in the case of other patients is to be treated as

loss, then in the case of the aforesaid Shankar Mohanty,

the members of the High Power Committee as well as the

DMET should also be held liable for sanctioning extra

funds without any objection.

g) As to the high price of the drugs in question, it has been

stated that the fixation of the price of drugs is the domain

of the Government and the doctors have no role in the

same. Additionally, the prescription of a particular drug is

the prerogative of the treating doctor and is done keeping

in mind the best response vis-a-vis the choice of the

patient and the patient‟s ability to afford the same. In fact,

all the patients were able to complete the treatment and

none of the patients have ever made any complaint

regarding the treatment. Also, the said 14 Nos. of patients

who were prescribed „ATGAM‟ made a conscious choice

to be administered „ATGAM‟ since it is the better drug

compared to „THYMOGAM‟. Moreover, there are no

alternative drugs for the treatment of Hypoplastic/Aplastic

Anemia in India apart form „THYMOGAM‟ and

„ATGAM‟.

h) With regard to the drug „HAMSYL‟, out of the 33

patients who were prescribed „HAMSYL‟ (none of which

were made by the petitioner) even though 8 patients had

no history of reaction, the other 25 had a history of

reaction. In fact, the Drug Inspector, Odisha vide letter

No. 138 dated 29.02.2024 has directed to stop the use of

L-asparaginase due to the serious adverse reaction

involved. As a result, „PEG L-asparaginase‟, i.e.

„HAMSYL‟ is considered as the best alternative. Also,

„HAMSYL‟ was administered to the patients strictly

according to the treatment required by each patient and

such treatment was undertaken by the treating doctors at

their own prerogative. Additionally, it has been clarified

that no vials of „THYMOGAM‟ that were procured by the

government were wasted.

i) Furthermore, it is not the case of the prosecution that

the drug „ATGAM‟ is not efficacious or that it is of

inferior quality. In fact, the lcp submitted that research

studies have revealed that „ATGAM‟ returns better and

early results in comparison to „THYMOGAM‟. However,

the government has procured the inferior „THYMOGAM‟

despite the indent order clearly mentioning the generic

name „Anti Thymocyte Globulin (ATG)‟ and not

specifically „THYMOGAM‟.

j) That no undue favour has been shown by the petitioner

to the alleged pharmaceutical companies and there is no

criminal conspiracy as has been alleged. It has stated that

the companies Pfizer and Emcure do not produce only

„ATGAM‟ and „PEG L-asparaginase‟ respectively. The

said companies also produce other drugs for the treatment

of Blood Cancer. Ergo, in case there was any substance to

the allegations of undue favour meted out by the

petitioner, then other expensive drugs produced by the

aforesaid companies would also have been prescribed by

the petitioner. However, that is not the case presently.

k) That the petitioner-Prof. (Dr.) Rabindra Kumar Jena has

not prescribed any of the alleged drugs, either „ATGAM‟

or „HAMSYL‟ (i.e. PEG L-asparaginase) to any patients.

Additionally, the indent for procuring „HAMSYL‟ was

sent with the collective signature and consent of all the

treating doctors, therefore the petitioner cannot be said to

have shown undue favour to the company.

l) With regard to the claims of alleged benefits received

by the petitioner from the concerned companies, it has

been stated that no illegal pecuniary advantage was levied

in favour of the petitioner during the relevant period.

Attending seminars is a mandatory requirement as per

para 9(ii) of the State Government notification dated

18.12.2013. Additionally, it was submitted that para 2(i)

of the State Government order No. ME, I/P.4/92/15020/H

dated 18.04.1992 mentions that the doctors may receive

contributions and hospitality from foreign

agencies/associations subject to the prior approval of the

state/central government. Furthermore, as per the MCI

notification No. 246, December, 2009, clause 3(9) of page

3, a medical practitioner is allowed to work for

pharmaceutical and allied healthcare industries in advisory

capacities as consultants/researchers/treating doctors/other

professional capacity. The Government of India Gazette

notification dated 14.12.2009 & notification dated

12.03.2024, clause 7(ii), clause 8.2 and clause 8.3 (where

the earlier notification was confirmed) and MCI

notification dated 10.12.2009, clause 6.8(g) have been

cited to submit that the petitioner has not committed

illegalities or ethical violations in accepting a consultancy

role at „Pfizer‟ as has been claimed by the prosecution.

The aforesaid notifications have been adduced as

Annexure-3 series to the present CRLMC application.

Upon such background, It has been contended that mere

non-receipt of prior approval of the government cannot be

treated as criminal liability. With regard to the alleged

visit to Minnesota, it has been stated that the said visit was

in the year 2013, whereas the drug „HAMSYL‟(i.e. PEG

L-asparaginase) was introduced in the market on

16.01.2015 only. At that time, it was the only drug

available, in the concerned field, in India. Ergo, the

allegation with regard to undue favour shown to the

company „Emcure‟ is baseless. Nevertheless, the

petitioner has not received any such alleged pecuniary

benefits from „Emcure‟ for the visit to Minnesota. Rather,

referring to enclosures 8 and 9 series under Annexure-2, it

has been stated that the entire expenditure for the travel

and accommodation for the said trip was borne out of the

pocket of the petitioner.

m) That, at not point in time has there been any

transfer or entrustment of any amount from the OST Fund

to the Petitioner. During the relevant period in question,

neither the State Government, the Prescription Audit

Team, nor the Screening Committee has ever raised any

objection or allegation with regard to any

misappropriation of the OST Fund or any other pecuniary

benefits received towards the travel and accommodation

of the petitioner. Therefore, it was submitted that the

question of the transfer of any money from the OST Fund

to the account of the present petitioner does not arise in

the present case.

n) Furthermore, a departmental proceeding (Annexure-4

to the present CRLMC application) was also initiated

against the petitioner on the self-same allegations, by the

competent authority, i.e. the Government in Heath

Department. The petitioner has been exonerated of all

charges in the said departmental proceeding with the

observation that the petitioner has not committed any

illegalities as alleged against him and as such the

departmental proceeding is dropped against the petitioner.

In fact, the exoneration order also states that the main

charge against the petitioner, with regard to the violation

of the prescription order, is also not established.

o) Lastly, there has been an inordinate delay of more than

7 years in the completion of the investigation in the

present case and no trial has begun in the present case as

of yet. To substantiate such ground, the Learned Counsel

for the Petitioner has relied on the decisions of the

Hon‟ble Supreme Court in Pankaj Kumar vs. State of

Maharashtra reported in (2008) 16 SCC 117, Vakil

Prasad Singh vs. State of Bihar reported in (2009) 3 SCC

355, Sirajul vs. State of UP reported in (2015) 9 SCC 201

and Kailash Chandra Mohanty vs. State of Odisha

reported in (2006) 1 OLR 576 and submitted that such

unexplained delay is a direct violation of the petitioner‟s

right to speedy trial as enshrined under Article 21 of the

Constitution of India. As such, no prima facie case is

made out against the petitioner and the continuance of the

present case, is at best, an abuse of the process of the

court.

6. Heard the learned counsels for both the parties, perused

the record and the documents attached thereto. It is undisputed

that the instant prosecution was lodged, without conducting a

preliminary inquiry as mandatorily required by an Expert

Committee of the concerned field prior to registration of this

criminal case against the accused-petitioners, who are reputed

doctors of the Premier Cancer Institute of the State of Odisha,

as the allegation is prescribing a particular chemo drug, which

relates to treatment of cancer patients under the OSTF Scheme.

7. Law is well settled in the case of P.Sirajuddin vs. State

of Madras reported in (1970) SCC 595, that in the matter of

medical treatment /medical negligence, prior to registration of

criminal prosecution, there must be a preliminary inquiry by an

expert committee. Similar view as also ascribed in the Case of

Lalita Kumari vs. State of UP reported in (2014) 2 SCC 1, in

respect of allegation of corruption cases.

8. As it appears from the case record, after registration of

the instant FIR and after the petitioner released from jail

custody, to save the skin, Government constituted an expert

team of three doctors, out of them two are not expert in the

field of treating blood cancer patients. One doctor namely,

Dr.Naresh Pattanaik(Associate Professor-Contractual) has

conflict of interest with the petitioner, and he had also lost his

case in their legal battle travelled them from this High Court to

Hon‟ble Supreme Court of India in the matter of their

promotion and seniority etc.. Moreover, the principles of

natural justice has not been followed in the said Inquiry as the

petitioner and other accused persons have neither been afforded

an opportunity of hearing nor has any notice been served upon

them. Therefore, the said inquiry and its finding are not

sustainable in the eyes of law.

9. This Court is also of considered opinion that there

should have been a preliminary inquiry in the case by an expert

committee of doctors of the concerned field, especially where

there are allegations of the present nature involving the

prescription of a particular cancer treatment drug and matter of

treatment of poor patients. More so, it should have been

ensured that the committee members do not have any conflict

of interest with the accused-doctor(s), and the principles of

natural justice should have been followed in the said inquiry. In

the instant case, the aforesaid mandatory principles as

envisaged have not been followed prior to the initiation of this

criminal Prosecution.

10. On a comprehensive perusal of the factual matrix of the

present case, it appears that the fundamental allegation in this

case relates to prescribing costlier medicine i.e. "Atgam" and

"Hamsyl" instead of "Thymogam‟‟ and "L-Asparaginase" to

the 13 & 33 nos. blood cancer patients respectively. The

aforesaid patients are those that were treated under the OSTF

Scheme and, upon being involved in the prescription of the

aforesaid drugs, it has been alleged that the present Petitioner

has violated the guidelines of the OSTF Scheme & the ethical

Code and undue favors have been shown to the said Pharma

Companies causing an equivalent loss to the Government It is

also the admitted position of the prosecution that none of the

rules or provisions of the OSTF Scheme has been violated in

this case by the petitioner or co-accused. The OSTF guideline

never envisage or restrict or put any embargo to prescribe

costlier medicine, especially when the same is better and

necessary for the treatment. Similarly, the OSTF Guideline

never envisages that cheaper medicine should be prescribed

irrespective of the quality and result. None of the patients have

also made any complaint against the accused-doctors regarding

lack of any treatment or incompletion treatment or

pressurization for purchasing the specific drug(s) in question.

Similarly, there was no allegation that the drug(s) in question

is/are of substandard quality or non-standard quality. Rather,

the drug in question are of standard quality and produce better

result as per the research study.

11. Furthermore, prescribing any chemo drug or medicine

to any patient is the sole prerogative and expertise of the

treating doctors. In the matter of cancer treatment, the patients

have right to choose their line of treatment and drugs, as per

standard protocol, on the basis of counseling from the different

available alternative line of treatment / drugs and as per their

financial capability. It is the ethical, moral and legal obligation

of the treating doctor to prescribe the best medicine to the

blood cancer patients as there is a thin line between the life and

death of the patients suffering from this sort of fatal disease.

Moreover, there should not be any discrimination in the matter

of treatment on the ground of rich and poor. In fact, it is also

the constitutional obligation of the State to provide best

medicine and treatment to the patients. For prescribing any

particular drug of any pharmaceutical company for treatment of

a disease like this, a doctor should not be held criminally liable,

unless the said drug(s) is hazardous, non-Standard or sub-

standard quality/brand or restricted by the appropriate

Authority of the Government For that reason, if the pharma

company is benefitted, the same cannot be treated as an undue

favour or loss to the Government exchequer. Especially when

the patients, on their own informed consent and volition, have

paid for the said drugs from their own pockets. Similarly, the

Government cannot compel any patient to consume any

particular drugs/medicines just because the said medicine/drugs

are procured by the government or because the said drugs are

cheaper than the alternatives, which might be more efficacious.

Moreover, the price of the said drug in question has been fixed

by the appropriate authority of the Government. The

prescription audit conducted by the Government agency has not

pointed out any such illegalities during the relevant period. The

Screening Committee who have scrutinized the application and

bill including medical prescription have not objected to the

same in any point of time. Hence, petitioner should not be

criminally liable for the alleged fraud, forgery, cheating and

misappropriation etc. or undue favour etc.

12. In a similar parlance, a doctor cannot be made to face

criminal Prosecution if he/she has any acquaintance with any

pharma company for engaging him/herself in consultancy

agreement with the said pharma company as advisor, and/or

he/she attended any seminar or conference, conducted by any

such pharma company, as a speaker or advisor because the said

doctor has prescribed the drugs of that particular pharma

company. Otherwise each and every doctor in the country

would face criminal prosecution. Moreover, the fact that the

Petitioner attended the seminars/conferences and training

programs as a mandatory requirement for career advancement

and promotion of doctors cannot be sidelined. The Government

of Odisha Notification dated 18.12.2023, in Para- 9(ii) and

Notification/ Order of the Government of Odisha dated

18.04.1992 Para-2(i) as well as MCI Notification dated

10.12.2009 Clause- 6.8(g) support the case of the petitioner to

the extent that "a Doctor may work for Pharmaceutical

Industries in advisory capacity as Consultant, or any other

Professional capacity‟". Further the doctor is also entitled to

hospitalities and accommodation allowance etc. for attending

such seminar or conference or training programs/ lecture as a

speaker or advisor conducted and sponsored by different

pharmaceutical companies. In the instant case, the petitioner

was invited to and attended the seminar and conferences as a

speaker in the Minnesota, USA and various other places.

Hence, the benefit extended to him by the Emcure Pharma

Company and/or Pfizer Pharma Company towards hospitalities,

transportation and accommodation, cannot be treated as illegal.

More so, he had attended the Conference at Minnesota, USA in

the year 2013, and the alleged Drug Peg L-Asparaginase i.e.

Hamsyl was produced by the Emcure Pharma Company in the

year 2015, and the petitioner has also never prescribed any such

drug Hamsyl of the said Emcure Pharma Company. In

conclusion, if this sort of proceeding is encouraged, then no

doctor would ever endeavor to treat any patient fairly and

fearlessly as per the best treatment standards (including drugs)

available. Therefore, he should not be made criminally liable

on the ground of showing favour to that Company for any

Offences as alleged against him.

13. Furthermore, a criminal case cannot be lodged against a

Doctor, because he/she has prescribed costlier drugs or chemo

injection which is beneficial and better resultant than the other

available drugs. Moreover, in the instant case, other doctors of

that institution/ department had also prescribed the similar

drugs/ chemo injection to their patients availing benefits under

the OSTF Scheme and they have been excluded from the case.

Similarly, the screening committee, who have sanctioned the

OST Fund in favour of the empanelled shop without any

objection, and the empanelled shop (who has obtained the said

money) have not been made an accused herein. The pharma

companies, who have been allegedly shown favour, have also

not been made accused.

14. Besides, the prosecution has failed to show any

document that a single drug like "Thymogam" or "L-

Asparaginase", as procured by the government, were wasted by

the Petitioner. Similarly, there was neither any entrustment of

fund nor a single pie has been transferred to the petitioner. The

Petitioner has also not prescribed any such alleged drug like

"Atgam" or "Hamsyl" to any such OSTF patients. Furthermore,

various scientific studies proclaim that the drug "Atgam"

produces better results than the drug "Thymogam" which was

procured by the Government. It is also borne out from record

that during suspension period of the petitioner, the doctor in-

charge had procured huge quantity of peg L-Asparaginase i.e.

Hamsyl and most of them were wasted by him and thereby a

loss of more than 8 lakhs was caused to the Government, and

no FIR was registered against him despite direction of this

Court. Other doctors have also prescribed the said Drug

"Hamsyl". Therefore, it is not acceptable that at the instance of

the petitioner they have prescribed the alleged Drugs i.e.

"Atgam‟ or "Hamsyl". It is also brought to the notice of this

Court that the Drug Inspector, Odisha vide Letter No. 138,

dated 29.02.2024 has instructed all the Store Medical Officer of

the SCB Medical College & Hospital, that "L-Asparaginase" is

not of standard quality and accordingly directed to stop the

usage of the said drug (which were procured by the

Government for providing treatment to poor blood-cancer

patients). It fortifies Hamsyl is the best one for the treatment

purpose of the said that the only alternative Drug i.e. rather the

Authority who are responsible for procuring cheaper "L-

Asparaginase" and "Thymogam" at the cost of life of the poor

blood cancer patients and thereby wasted huge public fund,

ought to have made liable for the same. At the same breath, the

opinion of the so called team constituted by the Government is

also not tenable and appears to be fallacious. It is also borne out

from record the petitioner has contributed a lot to the state and

had achieved a milestone in rendering his expertise and sincere

effort in conducting Borne Marrow Transplantation (BMT) free

of cost in the Department of Hematology, SCB Medical

College & Hospital.

15. At this stage, the Court deems it appropriate to direct its

attention towards the order passed in the disciplinary

proceeding conducted against the Petitioner. On perusal of the

aforesaid order, under Annexure-4 series of the present

CRLMC petition, passed in the departmental proceeding

instituted on the self-same charges, which has been obtained

through an RTI application, it is found that the Petitioner has

been exonerated in the said departmental proceeding. The

report also reveals that no contravention of OSTF, MCI, or any

guidelines can be attributed to the Petitioner. In fact, the

Petitioner was neither found to have violated the prescription

audit nor was it established that the Petitioner had endorsed the

prescription of the drugs in question. In fact, the only charge

which has been established against the Petitioner is with regard

to the non-submission of property returns. Therefore, it appears

that the competent authority, in the Departmental Proceeding

initiated against the petitioner on self-same allegations, has also

opined that there are no such illegalities committed by the

petitioner.

16. In view of the foregoing reasons, the very initiation of

instant criminal proceeding, without conducting a preliminary

inquiry by experts of the concern field, as observed above, is

found to be ex-facie illegal. Moreover, no prima facie case of

the alleged offences is made out from the uncontroverted

allegations narrated in the FIR against the petitioner.

Furthermore, the arbitrariness, discrimination, malafide and

blatant illegalities on the part of the prosecution are apparent on

the face of this case. In such view of the matter, this court has

no hesitation in arriving at the conclusion that the present case

falls squarely within the parameters, with regard to quashing of

a proceeding, laid down in the case of State of Haryana v.

Bhajanlal reported in AIR (1992) SC 604. Hence, allowing the

further continuance of the present criminal prosecution would

most definitely amount to an abuse of process of law.

Accordingly, this court exercising its inherent jurisdiction

under section 482 of Cr.P.C, is inclined to quash the criminal

proceeding vide V.G.R No. 64 of 2017 emanated from Cuttack

Vigilance Cell P.S. Case No. 19 of 2017 pending in the Court

of Ld. Special Judge (Vigilance), Cuttack qua the present

petitioner in the interest of justice. Therefore, the same is

hereby quashed.

17. The CRLMC application is allowed accordingly.

(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 16th April, 2025/ Anil/ Jr. Steno

Designation: Junior Stenographer

Location: High Court of Orissa Date: 16-Apr-2025 17:54:18