Dr. Rajesh Rajora vs The State Of Madhya Pradesh on 8 March, 2011

[Cites 19, Cited by 3]

Madhya Pradesh High Court

Dr. Rajesh Rajora vs The State Of Madhya Pradesh on 8 March, 2011

This common order shall govern disposal of all the three petitions moved under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing of the FIR leading to registration of a case as Crime No.7/2009 for the offence punishable under Section 13(1)(d) read with S.13(2) of the Prevention of Corruption Act, 1988 (for brevity 'the Act') at Bhopal office of SPE (Lokayukt) and the corresponding proceedings.

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Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010

2. For the sake of convenience, the petitioners shall be referred to by their respective names.

3. Backgrounds facts may be summed up thus -

(a) New Drug Policy, brought into force by the Public Health and Family Welfare Department, Govt. of M.P. (for short 'PHFWD') w.e.f. 06.06.2006 was required to be followed by the Directorate of Health Services (hereinafter referred to as the 'Directorate') for procurement of drugs to be distributed to various hospitals/public health centres during the year 2007-08. Accordingly, the drugs were to be purchased in a centralized manner and the PHFWD was to be the Nodal Department.

(b) On 20.4.2007, Dr. Ashok Sharma, who was working as Director of Health Services, issued orders to Managing Director, MPLUN (Madhya Pradesh Laghu Udyog Nigam) for supply of medicines and injectables for a total amount of Rs.16.65 crores (approx), as per requirements mentioned in the indents received from three different departments viz. Department of Medical Education (for brevity 'DME'), Gas Tragedy Relief and Rehabilitation Department (for brevity 'GTRRD') and the PHFWD. These medicines included Anti-tuberculosis Drug namely injection streptomycin (.75 gm), Rifampicin, Isoniazid, Pyrazinamide and Ethambutol, worth Rs.31,99,949/-.

(c) On 4.8.2007, the Joint Director (Tuberculosis) invited attention of the Director, Public Health to the purchase of anti-TB drugs in conflict with the policy laid down by the Central Government in its Revamped National Tuberculosis :: 4 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 Control Program (RNTCP). The Director placed the matter before Dr. Rajesh Rojora, the then Health Commissioner, who, in turn, cancelled the supply orders relating to Anti-TB drugs. However, in response to the corresponding letter dated 8.8.2007, the Managing Director, MPLUN reported that all these medicines had already been supplied to various district hospitals in the State.

(d) The purchase of anti-tuberculosis medicines was seriously viewed by the Central Government. Ultimately, on 08.08.2007, Naresh Dayal, Secretary, Ministry of Health and Family Welfare, Govt. of India, wrote a letter to the Chief Secretary, Govt. of Madhya Pradesh, expressing deep concern about purchasing of anti-tuberculosis drug in violation of the undertaking given by the Secretary, Govt. of M.P. on 05.12.2005. The relevant extracts of the letter read thus -

"Recently, it has been brought to our notice that the State of MP has purchased anti-TB drugs, which are being supplied to the districts. These drugs are for daily use and thus not as per DOTS strategy. They would allow for prescription by doctors and patients cannot be followed up. Thus, it would lead to Multi-drug resistant TB (MDR TB), which the entire DOTS strategy seeks to prevent. It is, therefore, necessary that these drugs are withdrawn from the districts and an enquiry be made to fix the responsibility for this purchase.

During the field visit by the member of Central TB Division in the month of March, 28th and 29th, 2007 it was observed that there were problems with the management of drugs and logistics at the state & district level. One of the observations was that the state was purchasing inj. Streptomycin (1 gm) supplying it to the districts, when it was already being supplied under the programme. It may also be added that the programme recommends the usage of 0.75 gm of inj. Streptomycin. Feedback on the same was sent by the Central TB division to the :: 5 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 State TB Officer through the letter No.T- 1801967/2005 TB dated 5th April, 2007 with a copy to Director of Health Services and Principal Secretary (Health), Government of Madhya Pradesh. In the letter it was informed to the State not to purchase inj. Streptomycin as the full requirement of anti-TB drugs including injection streptomycin is being supplied by GOI. No action taken report has been sent by the state so far with respect to the corrective actions mentioned in the letter.

In view of the above, I request you to take appropriate action against the officials responsible for the purchase of anti-TB drugs......................."

(e) Upon news item published in the Bhopal Edition of Hindustan Times on 12.09.2007 under the heading "Anti Tuberculosis Drug purchase comes under scanner", an inquiry bearing No.145/07 was initiated under Section 7 of the M.P. Lokayukt Evam Up-lokayukt Adhiniyam, 1989 (for short 'the Adhiniyam'). The inquiry revealed that -

(i) During the preceding three years, the State Government had not purchased injection streptomycin .75 gm.

(ii) There was no justification for purchasing such a huge quantity of the Anti-TB Drugs.

         (iii)     The injection streptomycin (.75 gm) was not
                   included    in    the     list    of     essential       drugs
                   (hereinafter referred to as "EDL").
         (iv)    The anti-TB drugs were purchased without any

public interest, despite the fact that they were being supplied by the Government of India free of cost.

(f) In the light these findings, a preliminary enquiry, numbered as 1/09, was initiated by the SPE (Special Police Establishment) and ultimately, the FIR in question was recorded by Inspector Shivram Shrivastava, to register a :: 6 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 case under Sections 13(1)(d) read with 13(2) of the Act against the petitioners and Dr. Ashok Sharma.

4. Learned Senior Counsel appearing on behalf of the petitioner Dr. Rajesh Rajora has strenuously contended that investigation into the matter is an abuse of process of Court in view of the following facts -

(i) The inquiry no.145/07 continued from September, 2007 to January, 2009 but no opportunity of hearing, as contemplated under Section 10 of the Adhiniyam, was afforded to him.

(ii) As per the mandate of Section 12(1) of the Adhiniyam, the Lokayukt Organization, the respondent no.2 herein, ought to have communicated the aforesaid findings and recommendations along with the relevant documents, materials and other evidence to the competent authority viz.

the State Government but the statutory provisions was by- passed.

(iii) In the preliminary inquiry, that was initiated at the instance of the Organization, his representation was not considered and despite specific request, opportunity of personal hearing was not provided to him. The enquiry was concluded in a short span of four days. Thus, the procedure contemplated in Section 10 of the Adhiniyam,that embodies principles of natural justice, was not followed in making the enquiry.

(iv) Although, he submitted a detailed representation (Annexure P-6 in MCrC No. 8695/09) against recording of the FIR yet, his name has not been excluded from the ambit of investigation.

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(v) Lokayukt Organization, being a recommendatory authority, is not competent to initiate investigation by circumventing the provisions of Section 12(1) of the Adhiniyam.

(vi) Public Health falls within Entry 6 of List II of the Seventh Schedule and, therefore, it is the duty of the State to provide anti-TB drugs to fulfil the demands of its Public Health Institutions.

(vii) DME and GTRRD are two distinct and separate departments and were not bound by the undertaking given by Secretary on behalf of the PHFWD.

(viii) The letter of undertaking dated 5.12.2005 (hereinafter referred to 'LOU') was an informal and extra legal agreement and further, the same was not forwarded to Health Commissioner for a follow-up.

(ix) Saving of human lives is of utmost importance and, therefore, no undue weight could be attached to RNTCP, which is only a programme guideline, so as to make it more significant.

5. Shri Brian D'Silva, learned Senior Counsel representing the other petitioners viz. namely Ajay Vishnoi and M.M. Upadhyay, respectively the then Health Minister and Principal Secretary, PHFWD, Govt. of M.P., has also termed the investigation so far as it concerns them as an abuse of the process of the Court for the following reasons -

(i) None of these petitioners was given opportunity of hearing before recording of the FIR.

(ii) There is no allegation as to any monetary gain.

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(iii) Entire case is a matter of record.

(iv) As per the policy, sanction of the Minister was not required. Moreover, as the order for supply of anti-TB drugs was cancelled, the question of sanction for payment did not arise.

(v) No monetary loss was caused to the Government.

6. In response, inviting attention to the guidelines laid down by the Apex Court in State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540, learned Special Public Prosecutor has submit- ted that no interference under the inherent powers would be justi- fied as prima facie the procurement of huge quantity of anti-T.B. drugs without any valid justification necessitates a detailed investig- ation. According to him, cancellation order dated 8.8.07 was of no consequence as the anti-T.B. drugs had already been supplied to various civil hospitals and thus, the State had incurred the financial liability to pay the price thereof.

7. At the outset, it may be observed that validity as well as authenticity of the FIR has been questioned on a common ground of non-compliance with the procedure prescribed in Sections 10 and 12(1) of the Adhiniyam. To buttress the contention as to opportunity of hearing, reference has been made to the following observations of the Supreme Court in P. Sirajuddin v. State of Madras AIR 1971 SC 520 -

"Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specially one who occupied the top position in a department, even if baseless, would do :: 9 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 incalculable harm not only to the officer in particular but to the department he belonged to, in general"

8. Placing reliance on the decision of Karnataka High Court in Mohammed Saleem v. State of Karnataka 2005 CRI. L. J. 381, Shri Brian D'Silva, learned Senior Counsel, has urged that non- compliance with the prescribed procedure has vitiated the entire proceedings leading to registration of FIR and consequent investiga- tion. However, as rightly pointed by learned Special Public Prosec- utor, the question, as to whether upon receipt of information by an officer-in-charge of the police station disclosing cognizable offence, it is imperative for him to register a case under Section 154 of the Code or a discretion lies with him to make some sort of preliminary enquiry before registering the same, has already been referred to a larger Bench (See. Lalita Kumari v. Govt. of U.P. (2008) 14 SCC 337.)

9. Even otherwise, the scope of a preliminary enquiry preceding lodging of the FIR would be limited to ascertain whether any cogniz- able offence has been committed. Under Section 154 of the Code, the word 'information' is not qualified by any adjective meaning thereby that information preceding a process not fully in conformity with the relevant legal provisions can also form basis of the first in- formation report. For this, reference may be made to the decision of the Apex Court in Parkash Singh Badal v. State of Punjab AIR 2007 SC 1274 wherein it has been observed -

"Section 154(1) regulates the manner of recording the first information report relating to the commission of a cognizable offence ....

At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154 :: 10 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 (1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof ....

It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case .....

An overall reading of all the Codes makes it clear that the condition which is sine-qua-non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.

10. In Mohammed Saleem's case (above), the proceedings ori- ginating from the order-taking cognizance based on sanction accor- ded by Uplokayukta and not by the State Government were quashed. As such, the decision is hardly of any relevance to the present case.

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Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010

11. As indicated in the preamble, the M.P. Special Police Establish- ment Act, 1947 was enacted to make provision for the constitution of a special police force for the investigation of certain offences af- fecting the public administration, for the superintendence and ad- ministration of the said force and jurisdiction of members of the said force in regard to the investigation of the said offences. Section 3 of the Act provides that the offences to be investigated by the estab- lishment are to be specified by the State Government by way of no- tification and whereas sub-section (2) of Section 4 postulates that the administration of the establishment shall vest in the Director- General of Police; its sub-section (1) declares that the superinten- dence of investigation shall vest in the Lokayukta appointed under the Adhiniyam.

12. The Adhiniyam has been enacted to make provision for the appointment and functions of certain authorities for the enquiry into the allegations against public servants and for matters connected therewith. Further, as defined in clause (b) of Section 2 of the Ad- hiniyam -

(b) "allegations" in relation to a public servant means any affirmation that such public servant, -

(i) has abused his position as such to obtain any gain or favour to himself or to any oth-

er person or to cause undue harm to any person.

(ii) was actuated in the discharge of his func-

tions as such public servant by improper or corrupt motives.

(iii) is guilty of corruption; or

(iv) is in possession of pecuniary resources or property disproportionate to his known source of income and such pecuniary re-

sources or property is held by the public servant personally or by any member of his :: 12 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 family or by some other person on his be- half.

13. Bearing in mind this legal scenario, the contention that, in re- spect of the enquiry, the procedure prescribed in Section 10 of the Adhiniyam was not followed in respect of the enquiry or that the provision contained in Section 12(1) was circumvented by forward- ing the case directly to the Special Police Establishment for appropri- ate action, does not assume any significance.

14. Before adverting to the merits of the rival contentions as to the factual aspects of the matter in a proper perspective, it may be observed that ambit and scope of permissible inquiry under Section 482 of the Code for quashing of the proceedings is circumscribed by certain limits. In Saroj Kumar Sahoo's case (supra), the Apex Court, on a conspectus of all the leading decisions concerning the subject, summed up the legal position as under -

"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 (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 :: 13 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 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 id sine quo res ipsa 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, 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.

In that case, reference was also made to the decision rendered in R. P. Kapur v. State of Punjab AIR 1960 SC 866 wherein the Supreme Court has summarized some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are:

(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;

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(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases 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 manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question.

(Emphasis supplied)

15. The point for determination, therefore, is as to whether case against anyone of the petitioners falls under anyone of the abovementioned categories ?

16. No dispute has been raised as to correctness of the following findings of the enquiry -

(i) Demands for anti-TB drugs were made by all the three aforesaid departments.

(ii) The injection streptomycin (.75 gm) was not purchased during the preceding period of three years.

(iii) Clause (g) of the letter of undertaking dated 05.12.2005 (Annexure P-2 in MCrC No.8695/09) signed by the Secretary, Department of Health and Family Welfare, for and on behalf of Govt. of M.P. contained a specific declaration that the State would not make its own purchase of anti-T.B. drugs.

(iv) In his letter-dated 08th August, 2007 (Annexure P-3 in MCrC No.8695/09), Naresh Dayal, Secretary, Ministry of Health and Family Welfare, Govt. of India, had requested the Chief Secretary of Govt. of Madhya Pradesh, to take appropriate action against the officials responsible for the purchase of anti-T.B. drugs.

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Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010

17. Shri S.C. Datt, learned Senior Counsel, is of the view that even if the allegations made in the FIR are taken at their face value and accepted in their entirety, no offence would be made out against Dr. Rajesh Rajora in the light of the under-mentioned facts, which are well within the knowledge of the investigating authority -

(a) the FIR does not mention that the Anti-TB Drugs were procured at a higher rate or they were of poor quality or there was shortfall in the quantity supplied.

(b) The corresponding record clearly reveals that no approval was taken from the petitioner for procurement of 202 drugs including anti-TB drugs for the first quarter of the year 2007-08 to meet the requirements of the Public Health Department whereas no payment was made against the procurement of medicines for the DME and GTRRD.

(c) The new drug procurement policy contemplates procurement of medicines through a competitive and transparent E-tender Process. Thus, it cannot be said that anyone involved in the process obtained a pecuniary advantage for himself or anyone else.

(d) Orders for supply of anti-TB drugs were issued by Director, Health Services without his approval and Vide note dated 14.7.2007, he had insisted upon purchase of only EDL drugs.

(e) Immediately, after the note-sheet submitted by the Joint Director, he has ordered cancellation of supply of anti- TB drugs and accordingly, the Director, vide order dated 8.8.2007 (Annexure P18) informed Laghu Udyog Nigam not to supply the anti-TB drugs.

(f) He was transferred from the post of Health Commissioner w.e.f. 24.10.2007 :: 16 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010

(g) This apart, there was no violation of clause 2(g) of the letter of undertaking as the State had procured only 2% of the total demand in order to fulfil the requirement of field institutions.

(h) No payment has been made against procurement of anti-TB drugs by the Directorate.

18. As per submissions made by Shri Brian D'Silva, no offence would also be made out against other petitioners namely Ajay Vishnoi and M.M. Upadhyay simply because in their respective capacities of Health Minister and Principal Secretary, PHFWD, they were not at all involved in the procurement of the anti-TB drugs. According to him, as per the policy documents, none of these petitioners was a member of procurement cell and further, no sanction or approval of the Minister was required at the stage of procurement of the drugs. Attention has also been invited to the fact that Dr. Ashok Sharma, the then Director, Health Services had issued the supply orders even before getting approval from the superior authorities including M.M. Upadhyay. Making extensive reference to the headings of the relevant notes, he has submitted that the matter relating to procurement of the medicines and review of the functioning of New Drug Policy were dealt with in two different files. However, a bare perusal of the note sheets referred to by learned Senior Counsel would show that -

(i) M.M. Upadhyay, as Principal Secretary, PHFWD, headed the Drug Procurement Committee of which Dr. Rajesh Rajora, in his official capacity of Health Commissioner, was a member.

(ii) Procurement orders were issued for supply of medicines under the New Drugs Policy for the first :: 17 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 quarter of 2007-2008 by the Director, Health Services who also submitted the proposal for approval and appropriate orders before the Health Commissioner viz. Dr. Rajesh Rajora.

(iii) On 04.05.07, Dr. Rajesh Rajora raised certain queries, which were answered by the Director on 07.05.07 and being satisfied with the answers, Dr. Rajesh Rajora placed the matter before Principal Secretary, PHFWD viz. the petitioner M.M. Upadhyay. He also made certain queries. In response, the Director answered the questions and marked the file to the Health Commissioner, who was reported to be on leave. In such a situation, after appending the note 'please speak', the Principal Secretary transmitted the file to the Health Commissioner who, in turn, passed it on to his PA.

(iv) The new incumbent to the post of Health Commissioner V.M. Upadhyay had the occasion to deal with the file from 01.01.2008 onwards. In his note dated 01.01.2008, while stressing the need to take a policy decision, he proceeded to highlight the following irregularities -

(a) orders for supply of medicines for the first quarter were issued even without answering the queries raised by the Principal Secretary, Health and an amount of Rs.10 crores had already been paid as price of the drugs supplied.

(b) a sum of Rs.3.56 crores was outstanding for payment.

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Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010

(c) bills for a total amount of Rs.2.5 crores were pending as they were not approved for payment by the Health Commissioner and the Principal Secretary.

(v) The Health Commissioner V.M. Upadhyay on 08.01.2008 again pointed out certain glaring irregularities in implementation of New Drug Policy and emphasised that entire proceedings must be conducted in accordance with the relevant rules and regulations. On 09.01.2008, while observing that the note-sheet pertaining to purchase of medicines worth Rs.12,84,99,960/- was placed before him for the first time, he pointed out that supply order was issued by Dr. Ashok Sharma without obtaining approval from the competent authority and submitted the matter before Principal Secretary for perusal and appropriate decision.

(vi) Petitioner M.M. Upadhyay vide his order-dated 1.1.2008 directed the Secretary (Health) to comment. The Secretary, in turn, discussed the matter with Principal Secretary and directed to take proposed action in accordance with the government decisions complied in the other file.

(vii) On 22.01.2008, with reference to the note-sheets pertaining to the Drug Policy and review of the working of Drug Cell, the Principal Secretary (Health) placed the file for affirmation of the supply order and payment to the supplier of drugs.

(viii) On 23.01.2008, the petitioner Ajay Vishnoi approved the proposal thus submitted before him by the Principal Secretary in its entirety.

19. Shri Brian D'Sliva, learned Senior Counsel, has strenuously contended that M.M. Upadhyay cannot be held responsible for undermentioned reasons -

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Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010

(i) the file pertaining to procurement of drugs in their generic names was put up before him for the first time on 10.5.2007 whereas the supply orders had already been issued on 20.4.2007.

(ii) he did not accord any approval and raised as many as four queries.

(iii) he was also not satisfied with the answers of the Director and vide note dated 11.5.2007, called the Director for personal hearing.

According to learned Senior Counsel, no offence is made out against Ajay Vishnoi, the then Health Minister, in view of the following facts -

(a) Apparently, a separate and entirely independent exercise, for reviewing the performance of the Procurement Cell was undertaken by the Department of Health that culminated into the recommendations for procedure to be followed by the Procurement Cell and this file was initiated on the 1st of January, 2008 by the Health Commissioner V.M. Upadhyay.

(b) For the first time, the file pertaining to the review of performance was placed before him on 23.01.2008 wherein he has approved the recommendations as made by the Principal Secretary namely M.M. Upadhyay for future practice and procedure to be followed by the Procurement Cell.

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(c) Record concerning review activities nowhere speaks about the procurement of anti-TB drugs.

(d) Both the files i.e. procurement file and review file were linked on 24.01.2008 after he had approved the recommendations.

To fortify the argument that there could not have been any vicarious liability in absence of any allegation and material to show that the petitioners namely Ajay Vishnoi and M.M. Upadhyay were in-charge of or responsible for procurement of the anti-TB drugs, a recent decision of the Apex Court rendered in M.A.A. Annamalai v. State of Karnataka (2010) 8 SCC 524 has also been cited.

20. However, as rightly pointed out by learned Special Public Prosecutor, fact of the matter is that anti-T.B. drugs had already been supplied in violation of the undertaking (Annexure P-2 in MCrC No.8695/2009) given by the Secretary on behalf of the State Government and sanction for payment of the amount outstanding as price of the drugs was accorded by Ajay Vishnoi while approving the corresponding proposals made by M.M. Upadhyay.

21. Obviously, the petitioners as their respective capacities of Health Commissioner, Principal Secretary (Health) and Minister of Health, were expected to know about Clause (g) of the LOU that reads as under -

Service Delivery : The implementation of a program for tuberculosis through (i) a strategy of directly-observed treatment, short-course (DOTS); ensure training of all cadres of health staff in all aspects of the RNTCP; ensure compliance with the guidelines of the RNTCP; ensure appropriate functioning of all health staff in the RNTCP; maintain a State Drug Store for the Project and undertake the logistics involved in the :: 21 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 supply and distribution of drugs; ensure that the State utilizes drugs supplied by the RNTCP and does not make its own purchases of anti-tubercular drugs and ensure that all TB patients are prescribed RNTCP drugs and regimens to the furthest extent possible.

(Emphasis supplied)

22. It is well settled that the Minister holds public office though he gets constitutional status and performs functions under the Constitution, law or executive policy. The acts done and duties performed are public acts or duties as the holder of public office. Therefore, he owes certain accountability for the acts done or duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the authority concerned by the Constitution by virtue of appointment (see. Secy., Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35). In this view of the matter, the decision in M.A.A. Annamalai's case (above) is of no avail to the petitioners.

23. By virtue of Section 13(1)(d) of the Act, a public servant is said to commit the offence of criminal misconduct,--

"if he,--

(i) by corrupt or illegal means, obtains for him-

self or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valu- able thing or pecuniary advantage; or

(iii) while holding office as a public servant, ob- tains for any person any valuable thing or pecuniary advantage without any public interest"

Besides this, as defined in Section (2)(b) of the Act, "public duty" means a duty in the discharge of which the State, the public or the community at large has an interest.

24. For these reasons, the contention that the allegations made in the FIR, even if taken at their face value and accepted in its :: 22 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 entirety, would not constitute the offence under the Act, also deserves rejection. The defences raised by the petitioners would require inquiry into the facts and can not be considered at the preliminary stage for the purpose of quashing the FIR and the proceedings initiated on its basis.

25. Having examined all the material aspects, whether legal or factual, in the light of submissions made by learned counsel for the parties, we are of the considered opinion that at this stage, it is not possible to hold that there is no legal evidence to connect anyone of the petitioners with the offence, prima facie made out from the recitals of the FIR. Moreover, there is no statutory bar to initiation or continuance of the investigation. In other words, the case against anyone of the petitioners does not fall under anyone of the categories as enumerated in R.P. Kapur's case (supra).

26. In State of Haryana v. Bhajan Lal AIR 1992 SC 604, the Supreme Court, after illustrating category of cases attracting interference under Section 482 of the Code, also sounded a note of caution to the effect that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases. Accordingly, the FIR disclosing commission of the offence punishable under Section 13(1)(d) read with 13(2) of the Act does not deserve to be quashed. As an obvious consequence, the investigation in question does not call for any interference.

27. In the result, the petitions stand dismissed. However, nothing contained herein shall be construed as any expression of opinion on the merits of the case. It shall still be open to the petitioners to raise :: 23 ::

Misc. Cri. Case. Nos. 8695/2009, 8975/2010 & 10473/2010 all such pleas as are available under law, in case charge-sheet is filed.

28. A copy of this order be retained in the connected MCrCs.

Petitions dismissed.

         (R.C. Mishra)                                   (Smt. Vimla Jain)
           JUDGE                                             JUDGE
          8.3.2011                                          8.3.2011

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Madhya Pradesh High Court