Uttarakhand High Court

Dr. George Samuel vs State Of Uttarakhand And Another on 12 October, 2022

     HIGH COURT OF UTTARAKHAND AT
               NAINITAL
      Criminal Misc.. Application No.1827 of 2022


Dr. George Samuel                                      ....Petitioner

                               Versus

State of Uttarakhand and Another                    ....Respondents

Present:-
             Mr. Shubhr Rastogi, learned counsel for the petitioner.
             Mr. T.C. Aggarwal, A.G.A. with Ms. Lata Negi, Brief Holder
for the State.

                            JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to

chargesheet no. 29 of 2021 dated 22.01.2021, cognizance and

summoning order dated 28.07.2021, passed in Criminal Case

No. 821 of 2021, by the court of Additional Chief Judicial

Magistrate/1st Additional Civil Judge (Senior Division),

Haridwar, District Haridwar ("the case").

2. Heard learned counsel for the parties and

perused the record.

3. Facts necessary to appreciate the controversy,

briefly stated, are as follows: In order to provide medical

assistance to the tune of Rs. 5 Lakhs, Atal Ayushman

Uttarakhand Yojana was launched and hospitals were

empanelled. One of them was Priya Hospital, Dhanpura,

Laksar Road, Haridwar. Hospitals, in fact, made applications

for their empanelment. It its application, for empanelment of

Priya Hospital, it was mentioned that the petitioner, Dr.

George Samuel, is a doctor posted there and is available

round the clock. It was revealed that, in fact, the petitioner

had been working in various Government Hospital on

contractual basis at the relevant time. The application for

empanelment was given by co-accused Sunny Dutt Saini. The

statement of co-accused Sunny Dutt Saini and the petitioner

were varying. A departmental enquiry was conducted. It was

found that, in fact, under a conspiracy, the petitioner and co-

accused Sunny Dutt Saini claimed huge amount of many

patients under Atal Ayushman Uttarakhand Yojana. An FIR

was lodged by Dhanesh Chandra, Executive Assistant, Atal

Aysuhman Uttarakhand Yojana, the State Health Agency.

4. During investigation, various documents,

including the summary slip, patient files, etc. were taken into

custody, which, according to the prosecution, were signed by

the petitioner. The chargesheet records that based on the

statements of the witnesses, documentary evidence and

examination of signatures by Forensic Laboratory,

Chandigarh, offences under Sections 120-B, 420, 467, 468,

471 IPC are made out against the petitioner. Accordingly, the

chargesheet was filed in which cognizance has been taken. It

is impugned herein.

5. Learned counsel for the petitioner would submit

that at the time of empanelment, co-accused Sunny Dutt

Saini and State Government had executed an agreement, in

which there is an arbitration clause. Therefore, it is argued

that criminal proceedings cannot be lodged and the matter

could be referred to the arbitrator. He would raise the

following points as well:-

(i) Co-accused Sunny Dutt Saini has

already deposited the amount, which

he had claimed from the State

Government under Atal Ayushman

Uttarakhand Yojana.

(ii) The petitioner never served in the

Priya Hospital. He was serving the

Government Hospitals under

contract.

(iii) The co-accused, in a statement given

to the Investigating Officer, has

clarified that one of the medical

certificates of a Meenu Devi was not

issued from their hospital and it does

not bear the signature of the

petitioner.

6. It is a petition under Section 482 of the Code of

Criminal Procedure, 1973. In the matters where prima facie

case is made out, generally interference is not warranted. The

jurisdiction is so wide to ensure compliance of the orders of

the courts or to meet the ends of justice, but , it is also much

guided by the principles, as laid down by the Hon'ble

Supreme Court in a catena of decisions. In the case of State of

Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp

(1) SCC 335, the Hon'ble Supreme Court illustratively gave a

list of circumstances under which this jurisdiction may be

invoked. In paragraph 102 of the judgment, the Hon'ble

Supreme Court observed as hereunder:

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

7. Arbitration clause, under no circumstances, can

dilute or dissolve a criminal liability. It may, at the most,

divert any civil dispute towards arbitration. Therefore,

arguments, advanced on that aspect, have less merit for

acceptance.

8. In case, if co-accused has deposited money, does

it mean that offences were committed? Is it an implied plead

of guilty? Does it mean that the co-accused has admitted that

the medical documents were forged? Does it also mean that

the petitioner was also a conspirator? The Court leaves it at

this moment. Perhaps, if occasion arises, these issues would

be deliberated, discussed and determined, at a later stage.