Manipur High Court
Dr. Lallukhum Fimate vs Cbi on 10 October, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
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
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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
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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
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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
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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
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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
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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
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"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
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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
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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
737.
(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