Allahabad High Court
Ajay Mishra And Another vs Central Bureau Of Investigation Cbi on 7 July, 2025
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:105565
Court No. 67 A.F.R.
Judgement Reserved on 30.05.2025
Judgement Delivered on 07.07.2025
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 28797 of 2024
Ajay Mishra and Another.....................................................Applicant
Through : Mr. Ram M. Kaushik
(Mr. Tanveer Ahmad Mir, learned Senior counsel)
Versus
Central Bureau of Investigation.................................Opposite Party
Through: Mr. Rahul Srivastava
Index
Contents Page Nos.
• Factual matrix of the case.......................................................2-3
• Contents of F.I.R.....................................................................3-8
• Charge-sheet..............................................................................8
• Cognizance..................................................................................8
• Discharge Application...............................................................8-9
• Charges...................................................................................9-12
• Submissions on behalf of applicants.....................................12-20
• Judgements relied upon on behalf of applicants..................20-21
• Submissions on behalf of C.B.I.............................................21-30
• Judgements relied upon on behalf of C.B.I..........................30-31
• Discussion of relied upon judgments....................................31-48
• Analysis..................................................................................48-58
• Outcome of Analysis..............................................................59-60
CORAM: Hon'ble Sanjay Kumar Singh,J.
ORDER
1- This application under Section 482 of the Code of Criminal Procedure (hereinafter referred as Cr.P.C.) has been filed by the applicants Ajay Mishra and M/s. Infolink Consultancy Service Pvt. Ltd. Lucknow through its Director, Ajay Mishra for quashing of the impugned order dated 02.03.2024 passed by the Court of Special Judge CBI, Ghaziabad in Special Case No. 05 of 2017, arising out of Case Crime No. RC/DST/2014/A/0014 New Delhi under sections 120-B, 420 and 471 IPC & section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988, police station CBI/STF, New Delhi, whereby discharge application bearing No. 251 Kha under Section 239 Cr.P.C dated 02.03.2024 of the applicants has been rejected as well as the order dated 29.04.2024 whereby charges have been framed against the applicants.
2- Heard Mr. Tanveer Ahmad Mir, learned Senior Advocate assisted by Mr. Ram M. Kaushik, learned counsel for the applicants, Mr. Rahul Srivastava, learned counsel appearing on behalf of the Central Bureau of Investigation/opposite party at length and perused the record.
Factual matrix of the case 3- Brief facts of the case, which are required to be stated are that on the basis of preliminary enquiry in pursuance of the order of this Court dated 15.11.2011 passed in Writ Petitions No. 3611 (MB) of 2011 (PIL), 3301 (MB) of 2011 (PIL) and 2647 (MB) of 2011 (PIL), First Information Report being RC/DST/2014/A/0014 dated 11.06.2014 was registered at police station CBI/STF, New Delhi against Shri D.N. Srivastava, the then Managing Director, Uttar Pradesh Electronics Corporation Ltd., (UPLC), Shri Ajay Mishra, Director, M/s. Infolink Consultancy Service Pvt. Ltd. Lucknow and other unknown officials of Uttar Pradesh Electronics Corporation, Ltd Lucknow (UPLC) for the commission of offences punishable under sections 120-B IPC r/w 420 IPC & section 13 (2) r/w 13 (1) (d) of PC Act, 1988 mainly on the allegations that they entered into a criminal conspiracy during the year 2009-10 with intention to cause pecuniary loss to the Government exchequer in the matter of implementation of HMIS, thereby they caused wrongful loss to the tune of Rs. 2.4 crores.
Contents of First Information Report 4- In the F.I.R. it is alleged inter-alia that:-
4.1- The Executive Committee of NRHM in its meeting held on 06.07.2009 under the Chairmanship of the then Principal Secretary, Health, UP decided to implement Hospital Management Information System (hereinafter referred as HMIS) by covering the computerization of the hospitals in 15 districts of U.P. by getting the work done through NIC or other PSUs which were to be short listed. The cost approved for the Project Implementation Plan (PIP) in 2009 was Rs. 5.25 crores.
4.2- On 31.08.2009, Mr. Sanket Verma, GM (MIS), SPMU, NRHM, in compliance of the above decision dated 06.07.2009 of the Executive Committee of NRHM, short listed 5 PSUs including UP Electronic Corporation (hereinafter referred as UPLC) and also mentioned that UPLC had submitted a proposal on 19.08.2009 for the work of HMIS in UP and finally under NRHM, U.P. Electronics Corporation Limited (UPLC), was engaged to implement this project.
4.3- On 17.08.2009, M/s U.P. Electronics Corporation Limited (UPLC) received a proposal from Shri Ajay Mishra, partner M/s Large Info Solution, Lucknow proposing for installation of HMIS at different district hospitals based on the project already running in district hospital Bahraich, which was done by NIC in the year 2006. The computer hardware configuration and software used in Bahraich hospital were different from the configuration given in the proposal by M/s Large Info Solution.
4.4- Shri D.N. Srivastava, the then Managing Director, UPLC instead of processing the proposal in the file, forwarded the said proposal to the Director NRMH on 19.08.2009 on behalf of UPLC.
4.5- M/s Large Info Solution was not an empanelled firm. Even though UPLC had many firms having expertise in supply and execution of works involving computer hardware/software like M/s Odyssey, the firm which ultimately supplied the computer hardware, no market survey was conducted to ascertain the cost of the computer hardware and software proposed by the firm nor the empanelled firm was contacted/considered.
4.6- The selection of the firm by UPLC was in criminal conspiracy with Shri Ajay Mishra as the proposal should have been made from one of the empanelled firms or after conducting market survey and resorting to open tender having both technical bid as well as commercial bid, as the amount involved was Rs. 5.25 crores.
4.7- Subsequently, a letter was written by M/s Large Info Solution to give the said work to M/s Info Link Services Pvt. Ltd., a company of Shri Ajay Mishra. This company was also not empanelled with UPLC, even though the request of an non-empanelled company/firm was accepted by UPLC for another non-empanelled company to execute the work.
4.8- On the instructions of UPLC, M/s Infolink Consultancy Services Pvt. Ltd., surveyed 15 districts where the work was to be done to assess their requirements on the basis of questionnaire filled by CMOs. For this purpose, the company charged Rs. 30,000 per hospital (total Rs. 4,50,000/-) from UPLC.
4.9- The officials of UPLC never approached NIC for a proposal or to ascertain the rates etc., whereas NIC had established HMIS work at Bahraich, District Hospital which was treated as the basis.
4.10-The NRHM gave work order for implementation of the said computerization project in 15 districts on 04.03.2010 to UPLC for a total cost of Rs. 5.25 crores in which Rs. 2,81,50,065/- was meant for hardware and Rs. 2,04,54,525/- was meant for software and the remaining Rs. 34,70,360/- was institutional charges of UPLC for the work of HMIS. Further a sum of Rs. 4,25,050/- was for the survey done in 15 hospitals which was done by M/s Infolink Consultancy Services Pvt. Ltd. Even though no expenditure was incurred for the survey done by M/s Infolink Consultancy Services Pvt. Ltd., but the same was charged by UPLC from NRHM.
4.11- The said work was to be completed within 8-10 weeks. In furtherance of the said criminal conspiracy and to achieve the ulterior object, UPLC deliberately delayed the project and waited till the empanelment of M/s Infolink Consultancy Services Pvt. Ltd. on 12.04.2010.
4.12- After that UPLC issued order to M/s Infolink Consultancy Services Pvt. Ltd., on 22.04.2010 without inviting tender and ignoring all their empanelled companies/firms- M/s. Odyssey and also not following DGS&D rates.
4.13- M/s. Infolink Consultancy Services Pvt. Ltd., which deals only in software had purchased hardware from M/s Odyssey which was an empanelled firm of UPLC and they could have been given this work of supplying hardware directly which could have saved around Rs. 1 crore but UPLC got it supplied through M/s Infolink, a non-empanelled company with ulterior motive to cause wrongful gain to said company /themselves.
4.14-UPLC had purchased computer of the same configuration on 19.12.2009 from M/s Odyssey at the cost of Rs. 42,986/- whereas M/s Infolink after purchasing computer from M/s Odyssey had supplied the same at the rate of Rs. 57,143 to UPLC which shows a difference/loss of Rs. 98,93,835/- (approx). This difference will further increase since two items namely, 150 Client Side Operative System @ Rs. 6857/- as against the unit price of Rs. 6250/- and 165 antivirus software charging @ Rs. 165/- which otherwise is given free of charge, were not found to have been supplied in Ghaziabad hospital. Similarly, the other hardware items were also supplied on exorbitant rates by M/s Infolink Consultancy Services Pvt. Ltd to hospitals with dishonest intention in order to cause pecuniary loss to the government. Thus, the total loss comes to Rs. 01 crore approximately in supply of hardware items.
4.15- M/s. Infolink Consultancy Services which executed the work, charged around Rs. 2.4 crores for software development. Had the work been allocated to NIC, the cost of software development to the tune of Rs. 2.4 crores could have been saved, as the same had already been developed by NIC for Bahraich district hospital free of cost. This was not done by UPLC with dishonest intention as well as in furtherance of criminal conspiracy in order to give undue pecuniary advantage to the said company and corresponding loss to the government.
4.16- M/s. Infolink Consultancy Services Pvt. Ltd., deals in the software and it is alleged that the company might have copied the software from the pilot project of Bahraich (originally developed by NIC) and with slight update, they showed it as their own software.
Charge-Sheet 5- After culmination of investigation, the investigating officer submitted report dated 30.06.2017 under Section 173 (2) Cr.P.C. against nine accused persons namely D.S. Srivastava, Ajay Mishra (applicant no.1), M/s Infolink Consultancy Services Pvt Ltd through its Director Ajay Mishra (applicant no. 2), Pradeep Kumar Shukla, R.K Balani, Sanket Verma, Dr Chander Bhan Prasad, Dr Rajender Prasad and Dr Ram Narayan Rawat for the offences u/s 120-B r/w Sections 420, 471 IPC and Section 13(2) r/w 13(1)(d) of PC Act, 1988 and substantive offences thereof.
Cognizance 6- On the said charge-sheet, the trial Court took cognizance of the said offences and summoned the accused persons to face trial.
Discharge Application 7- The applicants herein namely Ajay Mishra (applicant no.1) and M/s Infolink Consultancy Services Pvt. Ltd. through its Director Ajay Mishra (applicant no. 2) have preferred an application Under Section 239 of the Code of Criminal Procedure, 1973 dated 07.03.2022 seeking discharge. The other co-accused persons namely D.S. Srivastava, Pradeep Kumar Shukla, R.K. Balani, Sanket Verma, Dr Chander Bhan Prasad, Dr Rajender Prasad and Dr Ram Narayan Rawat have also filed separate discharge applications. All the discharge applications were heard together and rejected by the trial Court vide common order dated 02.03.2024 and thereafter charges have been framed against the accused persons by common order dated 29.04.2024.
8- Here it would be relevant to mention the charges framed against the accused persons, which are as under:-
Charges I, Pramod Kumar, Special Judge Anti Corruption, CBI Ghaziabad, hereby charge you, the accused Daya Shankar Srivastava, Ajay Mishra, M/s Infolink Consultancy Services Pvt. Ltd. represented by Director Ajay Mishra, Pradeep Kumar Shukla, Ravindra Kumar Balani, alias R.K Balani, Sanket Verma, Dr. Rajendra Prasad and Dr. Ram Narayan Rawat alias Dr. R.N Rawat with the following charges.
i. That in the year 2009-10, you, the accused Daya Shankar Srivastava, Ajay Mishra, M/s Infolink Consultancy Services Private Limited, Director Ajay Mishra, Pradeep Kumar Shukla, Ravindra Kumar Balani alias R.K. Balani, Sanket Verma, Dr. Rajendra Prasad and Dr. Ram Narayan Rawat alias Dr. R.N Rawat entered into a criminal conspiracy among themselves and under this, there was a criminal conspiracy in NRHM and hospital management information system in 15 district level hospitals of Uttar Pradesh. In the implementation of the System (HMIS), M/s Infolink Consultancy Services Pvt. Ltd., Lucknow, which was not empanelled with UPLC, was allotted the work at a higher rate by following the tender process differently. This caused a loss of about Rs. 02 crores to the government and the public servants and you accused persons got wrongful gains. Thus, you have committed the offence punishable under Section 120-B read with Section 420, 471 of the Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, which is in the cognizance of this court.
ii. That at the above mentioned time and place, you, the accused conspired among themselves with ill intention and without following the tender process to execute the tender of Hospital Management Information System (HMIS) under NRHM at a higher rate given to M/s Infolink Consultancy Services Pvt. Ltd., Lucknow, which was not listed with UPLC, by allotting work without following it, he cheated and caused wrongful loss to the government and wrongful gain to himself. You have committed a punishable offence under Section 420 of the Indian Penal Code, which is in cognizance of this court.
iii. That at the above mentioned time and place, you, the accused Daya Shankar Srivastava, Pradeep Kumar Shukla, Ravindra Kumar Balani alias R.K. Balani, Sanket Verma, Dr. Rajendra Prasad and Dr. Ramayan Rawat alias Dr. R.N. Rawat conspired with the accused Ajay Mishra and his company M/s Infolink Consultancy Services Pvt. Ltd., of which he was the Director, by using fake tender documents as genuine ones and without following the tender process, M/s Infolink Consultancy Services Pvt. Ltd., Lucknow. The work was allotted to a company which was not empanelled with UPLC at a higher rate by following different tender procedures. Thus, you have committed an offence punishable under Section 471 of the Indian Penal Code, which is in cognizance of this court.
iv. That at the above mentioned time and place, you, the accused Daya Shankar Srivastava, Pradeep Kumar Shukla, Ravindra Kumar Balani alias RK Balani, Sanket Verma, Dr. Rajendra Prasad and Dr. Ramayan Rawat alias Dr. Rawat, while holding the post of a public servant, misused his position in the tender process for the implementation of Hospital Management Information System (HMIS) under the NRHM and cheated during the allotment, breached the criminal trust and defrauded the government of about Rs 2.00 crores causing wrongful loss of money and wrongful gain to himself. Thus, you have committed an offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, which is in the cognizance of this court.
Therefore, I hereby order you to be tried by this court for the said charges.
9-Both the above orders dated 02.03.2024 and 29.04.2024 are the subject matter of challenge in the case in hand by the applicants (Ajay Mishra and M/s Infolink Consultancy Services Pvt Ltd).
Submissions on behalf of applicants 10-The learned counsel the applicants strenuously urged as under:-
10.1- The applicant no.1 (accused no. 2 in charge-sheet) is a bona fide service provider/private vendor engaged in the business of providing IT solutions for a variety of prestigious competitive examination works and other software, computerized processing works. He is the founder and Director of the company M/s Infolink Consultancy Services Pvt. Ltd. (applicant no.2-accused no. 3 in charge-sheet).
10.2- Accepting the prosecution case and relied upon materials by the C.B.I. as it is, no offence is made out against the applicant-Ajay Mishra and his company M/s Infolink Consultancy Services Pvt Ltd.
10.3- The budget of Rs. 5.25 crores was proposed by the State Government, not by the UPLC, nor by the applicants.
10.4- It is an admitted fact that the proposed work quotation made by the applicant comfortably fell within the budget. There is no impropriety with the quoted prices by the applicants.
10.5- The work assigned to the applicants by UPLC has been completed in terms of work order.
10.6- So far as payment made to vendor-M/s Infolink Consultancy Services Pvt Ltd. is concerned, it is admitted case of the prosecution that DG(FW) transferred Rs. 4,72,50,008/- to UPLC. UPLC made payment of Rs. 3,66,72,009/- (Rs. 3,75,63,403- TDS Rs. 8,91,394/-) to vendor M/s Infolink Consultancy Services Pvt Ltd. against bill of Rs. 4,83,91,682/-.
10.7- There is no allegations, much less evidence of any conspiracy, demand, transfer, acceptance, gratification or kickback or undue favour at the hands of the public officers in the present case 10.8- Applicant no. 2 (M/s Infolink Consultancy Services Pvt Ltd ) was a duly empanelled vendor both on the date of issuance of work order, i.e. 22.04.2010 in its favour, and even on prior occasions from 2006 onwards. At all the relevant dates, the applicant no. 2 was empanelled.
10.9- Referring the contents of charge sheet and statement of Shri A.K. Rawat (PW-23), who was Technical Director, National Information Centre (NIC), it is submitted that on physical inspection which was carried out on 8th and 9th January 2015, it was found that computer hardware and main HMIS software were supplied by the vendor. The HMIS system was found installed and functional in the hospital, therefore, the present case is neither a case of over-invoicing, nor under-supply of any proposed material. The perceived faults found by the investigating officer is entirely speculative and not borne out from material on record.
10.10- So far as the proposed HMIS system is concerned, it is submitted that same was not meant to be identical to the 'Bahraich Model' but was meant to be an upgraded/upscaled version of the 'Bahraich Model', hence solely on this ground, comparisons between the two systems are wholly improper.
10.11- Regarding DGS&D rates, it is submitted that same were never available to the applicant to avail, as he was a private vendor empanelled and employed in the capacity of a 'turnkey contractor'. Only direct Government procurement, if at all would be entitled to the same. Secondly, rates of different make/model/brands within the DGS&D rates could not at all be the basis of comparison with the material sourced by the applicant, because they were not of the same quality/suitability.
10.12- Deductions to the tune of Rs. 1,08,28,279/- was already effected by the Government over perceived service issues, which manifestly indicates the same at highest to be a civil matter. Wrongful loss cannot arise when the Government has already applied deductions.
10.13- The charge under Section 13(2) R/W 13(1)(d) of the PC Act is not made out in view of the amendment dated 26.07.2018 to Section 13(1)(d) of the PC Act and absence of Savings Clause within the Amendment Act itself.
10.14- Substantial modification of the ingredients of Section 13(1)(d) of the P.C. Act, 1988 has been made in view of the long-standing misuse of the application of the erstwhile provision of Section 13(1)(d) of the P.C. Act, 1988 prior to its amendment w.e.f. 26.07.2018.
10.15- Much emphasis has been given by contending that it is settled law that amendments that mitigate or mollify the rigours of penal statutes are to be beneficially construed and to this extent they can be given retrospective application to erstwhile prosecutions as well.
10.16- Mr. Daya Shankar Srivastava (accused no.1), the then Managing Director, Uttar Pradesh Electronics Corporation Ltd. (UPLC) was already under suspension in the year 2009 and his name does not appear in the selection, issuance or approval of the work order, therefore applicant no.1 could not have had any contact with him and other accused persons including accused no.4. The said fact is corroborated and confirmed from the statement of Shri Vishnu Mohan (PW-11), the then Marketing Officer posted in Hardware Division and at the time of recording of his statement, he was posted as Assistant Manager (Computer Education and Training), U.P. Electronics Corporation Ltd.
10.17- UPLC being an empanelled agency does not need to go through the competitive process and can be selected directly. Pursuant to G.O. dated 16.08.2002, UPLC can be directly assigned work order on the direction of administrative departments. The said G.O. dated 16.08.2002 has been in force much prior to the alleged conspiracy and has never been challenged nor rescinded.
10.18-As per statement of Chandra Prakash (PW 84), the then Principal Secretary, IT and Electronics, M/s Infolink Consultancy was already empanelled Vendor from 2006-08, which was the competent company and had applied for renewal of empanelment for developing and supplying application software for HMIS project in 15 hospitals. Mr. Chandra Prakash has also stated inter alia that it was the overall duty and responsibility of Mr. S.C. Gupta to go through and examine all rules, regulations, Government orders, etc. regarding procurement and empanelment of vendors and after having exhausted due diligence by the concerned officials of UPLC, file was put up for his approval. Thereafter said recommendation was approved by him.
10.19- Person who negotiated, oversaw and approved the project to UPLC has not been made accused.
10.20- Empanelment of M/S Infolink Consultancy Services Pvt Ltd. proves the applicant Company to be a bona fide and duly certified vendor of the UPLC much prior to the alleged conspiracy. Work order was given to applicant no. 2 as a turnkey contractor. Therefore, the applicants cannot be implied to be some fly by night operator or ineligible vendor.
10.21- Regarding the allegation of prosecution that work order was issued without following tender process is concerned, it is submitted that UPLC had adopted and ratified the policy and rules relating to " Outsourcing of Marketing of Software & Services of UPDESCO (another State-owned enterprise and nodal agency of the State Government) except rule relating to price fixation and remuneration of marketing partner as laid down in para 8 of the policy and rules of UPDESCO.
10.22- The aforesaid policy was not the creation of UPLC, but of another State PSU, UPDESCO as early as in the year 2006. UPLC merely adopted the UPDESCO policy in its meeting in 2008, which is again much prior to the alleged conspiracy.
10.23- Relevant clauses of the UPDESCO policy as adopted by UPLC are Clause 5(ii), Clause 7(A), Clause 7(E).
10.24- The said policy has never been challenged. This policy was never rescinded.
10.25- UPLC taking cue from UPDESCO followed a practice of not only outsourcing marketing proposals for work but allotting work orders to the vendor that assisted/proposed/canvasses in the marketing of the proposal and otherwise had full rights to award work to specific vendor. Hence the allegation that work order was given to the applicants without exhausting the process of tender is totally fallacious and misconceived in view of the existing policies and standard practices of UPLC as early as in 2006, which is 4 years prior to NRHM Scheme.
10.26- For development and execution of projects in the area of turnkey software solutions, development of application software, infrastructure & networking, practical training on software and maintenance of software, security, storage and backup etc., marketing proposals were part of the scope of work required of empanelled vendors for software development & turnkey projects to provide complete hardware and software IT solutions.
10.27- It is also submitted that M/s Large Info Solutions was not empanelled, is completely irrelevant in view of the fact that Ajay Mishra being part of both M/s Large Info Solutions (partnership firm) and Infolink (partnership) has no separate legal liability and is the alter-ego. There is no material impropriety, much less any criminal wrongdoing.
10.28- Referring the contents of para 23 of the Rejoinder Affidavit, it is further submitted that allegations against the applicants are wholly false, concocted, obnoxious and presented with the mala-fide intension to falsely implicate the applicants.
10.29- The Investigating officer, instead of levelling charges based on evidence, has drawn his own subjective views based on presumptions, surmises and conjectures without any evidence and in utter disregard of prevalent Government Order dated 16-8-2022 and policy adopted by UPLC vide Executive Committee meeting dated 28-6-2006 and practices during the relevant period.
10.30- Investigating officer has failed to mention any concrete evidence against the applicant.
10.31- In the contents of the charge sheet what is totally and conspicuously absent is any evidence of conspiracy, demand, transfer, acceptance of any gratification or kickback or undue favour at the hands of the public officers, who are accused in the charge sheet.
10.32- The entire case of the prosecution based on the materials relied upon by the prosecution unsubstantiated and implausible from the outset when in fact the applicants had totally and satisfactorily implemented the project in entirety which was categorically proved to be superior to the 'Bahraich Model'.
10.33- The alleged loss to the public exchequer is based on totally erroneous calculations and completely different and dis-analogous rates of items/brands that have been quoted in comparison to the applicants specifications that could not have validly been compared to the applicants' rates.
10.34- The applicants were marking partner of UPLC. The UPLC does not adopt tender process, because the same is not binding upon UPLC and as per prevailing practice UPLC accepts outsourcing marketing proposals for work and had full rights to award work to specific vendor.
10.35- The conclusion drawn by the investigating officer is contrary to his own record and evidence collected during investigation.
10.36- On the strength of above submissions, lastly it is submitted that basic ingredients to constitute an alleged offence against the applicants are lacking, hence no offence is made out against applicants, but the trial Court illegally rejected the discharge application of the applicants vide impugned order and framed the charges against the applicants. Hence under the facts and material evidence on record, criminal prosecution of the applicants is nothing but an abuse of process of the Court, hence both the impugned orders dated 02.03.2024 and 29.04.2024 are liable to be quashed.
Judgments relied upon on behalf of applicants 11-Learned counsel for the applicants in support of his submissions and prayer placed reliance upon the following judgments:-
1.
Dhariwal Tobacco Products Ltd. & Anr. v. State of Maharashtra &. Anr. (2009) 2 SCC 370
2. Prabhu Chawla v. State of Rajasthan & Anr. (2016) 16 SCC 30
3. Asian Resurfacing of Road Agency Pvt. Ltd.& Anr. v. Central Bureau of Investigation (2018) 16 SCC 299
4. Rajesh Yadav & Another v. State of Uttar Pradesh (2022) 12 SCC 200
5. P.K. Narayanan v. State of Kerala (1995) 1 SCC 142
6. Dr. S. K. Singh v. State of M.P & Ors CRR No. 2032/2015 (MP HC)
7. T Barai v. Henry AH Hoe (1983) 1 SCC 177
8. Md. Abdul Haque v. Srimati Jesmine Begum Chaudhary 2012 SCC OnLine Gau 143
9. Ratan Lal v. State of Punjab AIR 1965 SC 444
10. Shyam Lal v. State AIR 1968 All 392
11. Sundar Lal v. MCD 1970 6 DLT 445 (DEL HC)
12. Zile Singh v State of Haryana (2004) 8 SCC 1
13. New India Assurance Co. Ltd v. C. Padma & Anr (2003) 7 SCC 713
14. Sushila N. Rungta v. Tax Recovery Officer (2019) 11 SCC 795
15. West U.P. Sugar Mills Assn. vs. State of UP (2002) 2 SCC 645
16. Union of India vs.Prafulla Kumar Samal (1979) 3 SCC 4
17. Dilawar Babu Kurane Vs. State of Maharasthra (2002) 2 SCC 135)
18. P. Vijayan v. State of Kerala (2010) 2 SCC 568
19. Dipakbhai Jagdishchandra Patel v. State of Gujarat 2019 16 SCC 547
20. Interim stay order dated 07.01.2020 passed in application under Section 482 Cr.P.C. No. 40 of 2020 (Anil Kumar Yadav v. State of U.P.) pending before the Lucknow Bench of this Court.
Submissions on behalf of C.B.I. 12- Mr. Rahul Srivastava, learned counsel appearing for the Central Bureau of Investigation, at the outset, raised a preliminary objection by contending that since impugned order dated 02.03.2024 is in the nature of final order, therefore this application under section 482 Cr.P.C. is not maintainable. The applicants have alternative remedy to challenge the order dated 02.03.2024 by means of criminal revision. Apart from the aforesaid preliminary objection, it is also submitted that whether applicant was indulged in criminal conspiracy with the other co-accused or not is a matter of trial, which can appropriately be adjudicated by the trial Court after leading evidence by the parties concerned. Since the defence of the accused cannot be taken into consideration at this stage, hence relief as sought for by means of this application cannot be granted to the applicants. Referring paragraph no. 8 of the counter affidavit filed on behalf of C.B.I. and relying upon the contents of charge-sheet, learned counsel further submits that:
12.1-As per charge-sheet, investigation revealed that during the month of June 2009, there was an allocated budget of Rs. 5.25 crores by Central Government under National Rural Health Mission (NRHM) for installation of Hospital Management Information System project in 15 district level hospitals @ Rs. 35 lacs per hospital on the model of district hospital Bahraich that was developed and executed by National Informatics Centre and UP Health System Development Programme (UPHSDP) with the aid of World Bank.
12.2- The modalities of the implementation of HMIS project were finalized in a meeting held on 06-07-2009 under the Chairmanship of Shri Chanchal Tiwari, the then Secretary, Family Welfare, Government of UP and Mission Director, NRHM, Lucknow. A decision was taken firstly to identify 15 district hospitals in which the project will be executed. Since the result of Bahraich Model developed by NIC and UPHSDP was good, therefore it was also decided in the meeting to associate both the agencies for the purpose of survey and preparation of estimates in 15 hospitals and after these exercises, an agency be identified for implementation of this project.
12.3- In the meantime Shri Pradeep Kumar Shukla (accused no. 4), the then Principal Secretary, Medical Health, Government of UP took charge as Mission Director, NRHM in place of Shri Chanchal Tiwari.
12.4- On 06.08.2009, Shri Pradeep Shukla chaired the Executive Committee meeting of the NRHM wherein an agenda was placed in terms of the decision dated 06.07.2009, in which earlier decision dated 06.07.2009 was modified and it was decided to utilize the services of NIC or any Central/State reputed agencies dealing in IT/Electronics. The said decision was further ratified in next meeting dated 12.08.2009 of Executive Committee of the NRHM and it was also decided that out of the identified agencies, if necessary, one organization can be taken in the advisory role and the other can be the executing agency. The said minutes were signed by Shri Pradeep Shukla.
12.5-On account of aforesaid modification/dilution in decision dated 06-07-2009, it is clear that there was a deliberate change brought about in the nomenclature of the proposed agency for execution of the HMIS project by Shri Pradeep Kumar Shukla with dishonest intention knowingly and purposely.
12.6-Thereafter Shri Pradeep Kumar Shukla being Director of NRHM in pursuance of criminal conspiracy assigned the said project to UP Electronics Corporation Ltd, a State Public Sector Enterprises, which was further got implemented by UPLC through a vendor without exhausting the process of competitiveness and reasonability of rates resulting in causing of huge loss to the Government exchequer.
12.7-Everything was decided by Shri Pradeep Shukla himself, who entered into a criminal conspiracy with Shri D.S. Srivastava, the then Managing Director, UPLC Lucknow and Shri Ajay Mishra, partner of M/s Large Info-solutions and Director of M/s Infolink Consultancy Services Pvt. Ltd., Lucknow sometimes in the month of August 2009, to show undue favour to Shri Ajay Mishra and his company, hence there was a meeting of mind between Shri Pradeep Shukla and Shri D.S. Srivastava.
12.8- Thereafter Shri Ajay Mishra dishonestly prepared a proposal on the letter-head of his non-panelled and unregistered firm M/s Large Info Solutions for installation of HMIS project @ Rs.34.15 lacs per hospital and provided the same to Shri D.S. Srivastava enclosing with a letter dated 17.08.2009 addressed to MD, UPLC. Apart from this Rs. 12.5 lacs has been mentioned as one time cost of development of software. In this way the total cost of the project comes to Rs. 525 lacs for 15 hospitals.
12.9- Shri Ajay Mishra was in touch and pursuing the said project with the NRHM authorities and Director General Family Welfare (DGFW), Lucknow for setting up the same on the basis of Bahraich model.
12.10- Shri D.S. Srivastava, Managing Director, U.P. Electronics Corporation Limited (UPLC) at his own level in criminal conspiracy with the accused Pradeep Kumar Shukla and Ajay Mishra forwarded the said proposal dated 17.08.2009 of Ajay Mishra to the Director, NRHM (Shri Pradeep Shukla) vide letter dated 19.08.2009, without processing the same on file. On 20.08.2009 Shri Pradeep Kumar Shukla, the then Principal Secretary and Mission Director, NRHM marked the said proposal to the concerned subordinate officer of NRHM.
12.11- These documentary evidences coupled with the statements of officers of UPLC and NRHM and subsequent acts and omissions on the part of accused persons clearly show the existence of criminal conspiracy.
12.12- Thereafter, on receipt of the dishonest proposal of UPLC, Shri Sanket Verma in criminal conspiracy with Pradeep Shukla initiated a note dated 31.08.2009 to the effect that 15 district hospitals have been identified. He also mentioned that as per GO dated 25.08.2004 there were 5 authorized agencies namely UPDESCO, UPLC, NICSY, Uptron Powertronic Ltd. and Shriton India Ltd. Accused Sanket Verma also mentioned in the note regarding receipt of the proposal of UPLC dated 19.08.2009.
12.13- In furtherance of the criminal conspiracy with dishonest intention to award the work to Ajay Mishra or his firm/company, accused Sanket Verma without obtaining any proposal from the other 4 authorized agencies as indicated above and contrary to the decision taken in meeting dated 12.08.2009 regarding identification of one agency as advisory and another agency as executing, dishonestly put up a detailed note on 23.10.2009 proposing that UPLC be nominated as Advisory as well as Executing Agency for installation of Hospital Management Information System (HMIS). The said proposal was approved by Shri Pradeep Kumar Shukla, the then Mission Director on 23.10.2009. Thereafter Executive Committee in its meeting dated 27.01.2010 under the chairmanship of Shri Pradeep Kumar Shukla post-facto approved the nomination of UPLC and transfer of funds to the account of Director General Family Welfare (DGFW) was also approved in the same meeting of Executive Committee.
12.14- On 29.10.2009, the office of NRHM informed MD, UPLC about the decision of nomination of UPLC as executing as well as monitoring agency of the said HMIS project and asked to submit a detailed proposal.
12.15- In furtherance of the said criminal conspiracy, accused R.K. Balani, Manager (Business Development and Marketing), UPLC without processing the said letter, without any official process of proper identification of an agency and without obtaining the approval of the competent authority on record regarding M/s Large Info Solution as an authorized representative of UPLC, intimated NRHM vide letters dated 04.11.2009 and 11.12.2009 that M/s Large Info Solution was its authorized representative. He also misinformed that M/s Large Info Solution had already started the survey work of the hospitals and the said firm would also implement the project on behalf of UPLC whereas M/s Large Info Solution was neither empanelled nor authorized to implement the said project, hence, selection of M/s Large Info Solution was arbitrary and pre-decided.
12.16- As per the note dated 19.11.2009 initiated by Shri Sanket Verma, Shri Pradeep Kumar Shukla approved the constitution of a Monitoring Committee under the Chairmanship of Dr. C.B. Prasad, DGFW, with the following members :
i. Director Medical Care, Swathya Bhawan ii. Dr. R. P. Yadav then GM(NP), NRHM iii. Dr. G.P.Shahi, then Joint Director, UPHSDP iv. Shri Sanket Verma, then GM(MIS), NRHM v. Shri S.S. Singh, Asstt. Engineer, UPHSDP 12.17- Accordingly a letter dated 07.12.2009 was issued to DG (FW) under the signature of Shri S.K. Singh, the then GM, (Admn), NRHM in which it was also directed to complete the said project by 31.12.2009. Copies of the same were also sent to UPLC and CMS of 15 district hospitals. In the said letter, the committee so constituted was also directed to monitor the HMIS project as well as to get survey conducted by UPLC and thereafter to examine the detailed proposal for HMIS in said 15 district hospitals and to get the project implemented by 31.12.2009.
12.18- The copy of the said letter 07.12.2009 of NRHM was also received in UPLC. Shri D.S. Srivastava, the then MD had seen the letter and marked it to accused R.K. Balani on 08.12.2009.
12.19- Accused Ajay Mishra, on 28.01.2010 applied UPLC for renewal of the empanelment of his company M/s Infolink Consultancy Pvt. Ltd., Lucknow for software development, turnkey projects and web development etc. in which he and his wife were Directors.
12.20- In pursuance of the said criminal conspiracy, accused Ajay Mishra on the letter head of M/s Infolink Consultancy Pvt. Ltd. submitted survey reports and price schedule in respect of said 15 hospitals to Shri R.K. Balani of UPLC on 11.02.2010. It was done before empanelment and after conducting survey. Copies of the same were also sent to DG Parivar Kalyan and GM(Admn), NRHM. Accused R.K. Balani dishonestly and fraudulently did not put up and also did not bring the said reports in the notice of the then GM Shri S.C Gupta and the then MD Shri Chandra Prakash. He also dishonestly did not verify and scrutinize the rates submitted by accused Ajay Mishra which were quite exorbitant.
12.21- Dr. C.B. Prasad, the then DGFW chaired the monitoring committee meeting dated 26.02.2010 which was also attended by (i) Shri Sanket Verma, GM NRHM, (il) Dr. Rajendra Prasad, Director, Medical Care, (iii) Dr. R.N. Rawal, GM (NP) (as Dr RP Yadav already transferred) and (iv) Shri Ajay Mishra as the representative of the UPLC. The survey reports and price schedule of 15 hospitals so submitted by Ajay Mishra of M/s Infolink Consultancy Services Pvt Ltd. through UPLC were discussed. The Monitoring Committee members in criminal conspiracy with each other as well as the accused Ajay Mishra did not examine and verify the rates of items as submitted by the said vendor Ajay Mishra and the rates so submitted by the vendor were accepted as such. UPLC was asked to execute the said project. As such they failed to discharge their official duties and abused their official positions as public servants, thereby causing huge loss to the Govt exchequer.
12.22-After approval of the Monitoring Committee, Shri Ajay Mishra, Director, M/s Infolink Consultancy Services Pvt. Ltd. sent a letter to MD, UPLC requesting to issue the work order.
12.23- Dr. C.B. Prasad, DGFW on behalf of NRHM gave the work order for implementation of computerization in 15 districts on 04-03-2010 to UPLC, which was to be completed within 8-10 weeks. UPLC did not give the work order to any empanelled firm instead they waited for the empanelment of the M/s Infolink Consultancy Services Pvt Ltd., which was empanelled on 12-04-2010. After this, UPLC issued work order to M/s Infolink Consultancy Services Pvt Ltd. on 22-04-2010 for installing the same. Thus, M/s Infolink Consultancy Services Pvt Ltd., was awarded work in a pre-decided manner, without any tender, transparency and ensuring reasonability of rates 12.24- During investigation, it is established that accused Shri Ajay Mishra, Director, M/s Infolink Consultancy Services Pvt Ltd. did not implement the said HMIS project properly in the said 15 District Level Hospitals of UP. The rates of hardware items as well as of the software were claimed quite exorbitantly.
12.25- After conducting technical survey of HMIS project in all 15 District Level Hospitals, the difference of rates in case of hardware and system software comes to Rs. 1,33,34,150/-, whereas, the difference in the rates of main HMIS Application Software comes to Rs. 63,40,890/-. In this way the accused vendor Ajay Mishra, Director, M/s Infolink Consultancy Services Pvt Ltd, Lucknow in criminal conspiracy with accused DS Srivastava, Pradeep Shukla, Sanket Verma, R K Balani, Dr C B Prasad, Dr Rajender Prasad and Dr RN Rawat has caused an undue pecuniary loss to the Government exchequer for a total Rs. 1,97,75,040/-.
Judgments relied upon on behalf of C.B.I 13-On behalf of the C.B.I. reliance has been placed on the following judgments:-
1.
Kaptan Singh Vs. State of Uttar Pradesh, (2021) 9 SCC 35
2. Central Bureau of Investigation Vs. A. Raja and others passed in Criminal Misc. Application No. 1731 of 2020, decided on 23.11.2020
3. State of Rajasthan Vs. Tejmal Choudhary, 2022 LiveLaw (SC) 158 Discussion of relied upon judgements 14-Before delving into the matter, it would be appropriate to discuss the judgments relied upon by the learned counsel for the parties. First of all, this Court proceeds to examine the judgments relied upon on behalf of the applicants, which are as under:-
14.1- In the case of Dhariwal Tobacco Products Ltd. and Anr. Vs. State of Maharashtra and Anr., (2009) 2 SCC 370, the Hon'ble Apex Court after considering a catena of judgments on the point, has held that only because a revision petition is maintainable, the same by itself would not constitute a bar for entertaining an application under Section 482 of the Code. The inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of.
14.2- In the case of Prabhu Chawla Vs. State of Rajasthan and another, (2016) 16 SCC 30, the Hon'ble Apex Court has further following the judgment in the case of Dhariwal Tobacco Products Ltd. (supra) held that Section 482 begins with a non obstante clause to state:
"482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."
A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J.
"abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more".
14.3- In the case of Asian Resurfacing of Road Agency Pvt. Ltd.& Anr. v. Central Bureau of Investigation, (2018) 16 SCC 299, the Hon'ble Apex Court has held that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C or Article 227 of the Constitution.
14.4- In the case of Rajesh Yadav & Anr. Vs. State of Uttar Pradesh, (2022) 12 SCC 200, Hon'ble Apex Court has held that a report under Section 173(2) Cr.P.C is a mere opinion of the investigating officer formed on the materials collected by him.
14.5- In the case of P.K. Narayanan v. State of Kerala, (1995) 1 SCC 142, Hon'ble Apex Court has held that an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence.
14.6- In the case of Dr. S. K. Singh v. State of M.P & Ors CRR No. 2032/2015, Madhya Pradesh High Court has discharged the accused on the ground of mere violation of the procedure in absence of criminal intent. The relevant part of observation made in this regard are as under:-
"23. Except for demonstrating a procedural impropriety or illegality in the matter of allotment of work, no criminal intention, malafide or criminality is made out from the entire material available on record . That being the position, we have no hesitation in holding that it is a fit case where prosecution of the petitioners on the material available according to us is not at all warranted and it is a fit case where their discharge can be ordered.
24. In the case of Major J. S. Khanna (supra), similar questions with regard to procedural impropriety has been considered and similar action quashed by the Court as charges were said to be not made out and it was held by the Court in the aforesaid case that mere violation of the procedure may be proved but in the absence of criminal intent and criminality being established, prosecution cannot continues. In the present case also, similar scenario exists and therefore, we are of the considered view that it is a fit case where the petitioners should be discharged as no useful purpose would be served by prosecuting them in the manner as done."
14.7- In the case of T Barai v. Henry AH Hoe, (1983) 1 SCC 177, the Hon'ble Apex Court has held inter alia that since amendment was beneficial to accused persons, it can be applied even with respect to earlier cases as well which are pending in the Court. The relevant paragraph of the said judgment is quoted as under:-
"22. It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense. This finds support in the following passage from Craies on Statute Law, 7th Edn., at pp. 388-89:
"A retrospective statute is different from an ex post facto statute. "Every ex post facto law..." said Chase, J., in the American case of Calder v. Bull [3 US (3 Dall) 386: 1 L Ed 648 (1798)] "must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction.... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime."
14.8- The High Court of Gauhati in the case of Md. Abdul Haque v. Srimati Jesmina Begum Chaudhary, 2012 SCC OnLine Gau 143 has held inter alia that those enactments which only relax the existing procedure or mollify the rigour of the criminal law can be given retrospective operation. The relevant paragraph of the said judgment is quoted as under:-
"20. What emerges from the aforesaid authorities is that every new enactment is presumed to be prospective in operation, unless either expressly or by necessary intendment is made retrospective. Prospective operation of law is also presumed, if it creates new rights and liabilities and this principle has to be applied more rigorously if the law provides penal provisions inasmuch as Article 20(1) of the Constitution, inter-alia, clearly stipulates that no person shall be convicted of any offence except for violation of 'law in force' at the time of commission of the act. Only those enactments which only relax the existing procedure or mollify the rigour of the criminal law can be given retrospective operation."
14.9- In the case of Ratan Lal v. State of Punjab, AIR 1965 SC 444, the question that fell for consideration was whether an appellate Court can extend the benefit of Probation of first Offenders Act, 1958 which had come into force after accused had been convicted of a criminal offence. The Apex Court by majority of 2:1 answered the question in the affirmative, concluding that the rule of beneficial construction required that even post facto law of the type involved in that case should be applied to reduce the punishment.
14.10- In the case of Shyam Lal v. State, AIR 1968 All 392, the Allahabad High Court has held that the Court trying an accused has to take into consideration the law as it exists on the date of judgement. The observations made in this regard are as under:-
"12. It seems to us clear that the true rule of construction of a penal Statute is that where the legislature evinces its intention to modify the law, in favour of the accused, so as to reduce the rigour of the law in the light of past experience and changed social conditions, so long as prosecution of the accused has not concluded by a judgment of conviction, the proceedings against him are regarded as inchoate and the law applicable to him would be the law as amended by the legislature. The court trying an accused person has to take into consideration the law as it exists on the date of the judgment. It seems reasonable that an accused person cannot render himself liable to a higher punishment under a statute which has ceased to exist and has been substituted by a new law which favours him. Where the question as to the interpretation of a penal statute is concerned, the Court must construe its provisions beneficially in regard to their applicability to the accused. It would be violating the spirit of the law and the will of the Legislature as expressed in the amending statute to sentence an accused person on the basis of the original Act which has been considered by the Legislature to be harmful and harsh against public interest."
14.11- In the case of Sundar Lal v. MCD, 1970 6 DLT 445, Delhi High Court has held that the new standard having taken away the rigours of law and being in favour of the accused, it should be given a retrospective operation. In this connection, reliance has been placed on a Division Bench judgement of the Allahabad High Court in Shyam Lal Vs.State, 1968 A.L.J 788(1), wherein after quoting Crawford's "Construction of Statute" (1940 Edition) at page 599, with approval, it was observed:--
"The above rule of construction is based on the principle that until the proceedings have reached final judgment in the Court of last resort, that Court, when it comes to announce its decision, must conform to the law then existing."
It was further held--
"It seems to us clear that the true rule of construction of a penal tatute is that where the legislature evinces its intention to modify the law, in favour of the accused so as to reduce the rigour of the law in the light of past experience and changed social conditions, so long as prosecution of the accused has not concluded by a judgment of conviction, the proceedings against him are regarded as inchoate and the law applicable to him would be the law as amended by the legislature. The Court trying an accused person has to take into consideration the law as it exists on the date of the judgment. It seems reasonable that an accused person cannot render himself liable to a higher punishment under a statute which has ceased to exist and has been substituted by a new law which favours him. Where the question as to the interpretation of a penal statute is concerned, the Court must construe its provisions beneficially in regard to their applicability to the accused. It would be violating the spirit of the law and the will of the Legislature as expressed in the amending statute to sentence an accused person on the basis of the original Act which has been considered by the Legislature to be harmful and harsh against public interest.
We are in respectful agreement with the Division Bench of the Allahabad High Court."
14.12- In the case of Zile Singh v. State of Haryana, (2004) 8 SCC 1, the Hon'ble Apex Court, has clarified the distinction between "supersession" of a rule and "substitution" of a rule. The observations made in this regard are as under:-
"24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. "Substitution" has to be distinguished from "supersession" or a mere repeal of an existing provision.
25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid., p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P. [(2002) 2 SCC 645] , State of Rajasthan v. Mangilal Pindwal [(1996) 5 SCC 60] , Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. [(1969) 1 SCC 255] and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael [AIR 1963 SC 933] . In West U.P. Sugar Mills Assn. case [(2002) 2 SCC 645] a three-Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case [(1996) 5 SCC 60] this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case [(1969) 1 SCC 255] a three-Judge Bench of this Court emphasised the distinction between "supersession" of a rule and "substitution" of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place."
14.13- Learned counsel for the applicant, in support of his submission that where the amendment is beneficial, Section 6A of General Clauses Act will not apply, has referred the judgment of the Apex Court in the case of New India Assurance Co. Ltd v. C. Padma & Anr, (2003) 7 SCC 713, wherein the Hon'ble Apex Court held that Section 6-A of the General Clauses Act, undoubtedly, provides that the repeal of a provision will not affect the continuance of the enactment so repealed and in operation at the time of repeal. However, this is subject to "unless a different intention appears". The relevant observations made in this regard are as under:-
"10. The ratio laid down in Dhannalal case [(1996) 4 SCC 652 : 1996 SCC (Cri) 816] applies with full force to the facts of the present case. When the claim petition was filed sub-section (3) of Section 166 had been omitted. Thus, the Tribunal was bound to entertain the claim petition without taking note of the date on which the accident took place. Faced with this situation, Mr Kapoor submitted that Dhannalal case [(1996) 4 SCC 652 : 1996 SCC (Cri) 816] does not consider Section 6-A of the General Clauses Act and therefore, needs to be reconsidered. We are unable to accept the submission. Section 6-A of the General Clauses Act, undoubtedly, provides that the repeal of a provision will not affect the continuance of the enactment so repealed and in operation at the time of repeal. However, this is subject to "unless a different intention appears". In Dhannalal case [(1996) 4 SCC 652 : 1996 SCC (Cri) 816] the reason for the deletion of sub-section (3) of Section 166 has been set out. It is noted that Parliament realized the grave injustice and injury caused to heirs and legal representatives of the victims of accidents if the claim petition was rejected only on the ground of limitation. Thus "the different intention" clearly appears and Section 6-A of the General Clauses Act would not apply."
14.14- Learned counsel for the applicant heavily relied upon the case of Sushila N. Rungta v. Tax Recovery Officer, (2019) 11 SCC 795 by contending that in absence of specific saving clause, recourse cannot be taken to General Clauses Act, 1897. Relevant paragraphs, on which reliance has been placed are as under:-
"7. Having heard the learned counsel for both sides, we are of the view that the Statement of Objects and Reasons makes it clear that over 22 years, the results achieved under the Act have not been encouraging and the desired objectives for which the Act has been introduced have failed. Following the advice of experts, who have examined issues related to the Act, the Objects and Reasons goes on further to state that this Act has proved to be a regressive measure which has caused considerable dissatisfaction in the minds of the public and hardship and harassment to artisans and small self-employed goldsmiths.
8. This being the case, we are of the opinion that the repeal simpliciter, in the present case, does not attract the provisions of Section 6 of the General Clauses Act as a contrary intention is very clearly expressed in the Statement of Objects and Reasons to the 1990 repeal Act. In this behalf, it would be apposite to refer to New India Assurance Co. Ltd. V. C. Padma [New India Assurance Co. Ltd. v. C. Padma, (2003) 7 SCC 713 : 2003 SCC (Cri) 1709] , SCC para 10.
9. This Court noticed in C. Padma case [New India Assurance Co. Ltd. v. C. Padma, (2003) 7 SCC 713 : 2003 SCC (Cri) 1709] that, in a parallel instance of simpliciter repeal, Parliament realised the grave injustice and injury that had been caused to heirs of LRs of victims of accidents if their petitions were rejected only on the ground of limitation. This being the case, this Court found that a different intention had been expressed and, therefore, Section 6-A of the General Clauses Act would not in that situation apply."
14.15- Learned counsel for the applicant in support of his submission that the Central Government by making amendment in the P.C. Act, 1988 with effect from 26.07.2018 completely repealed the provision of Section 13 (1) (d) of the P.C. Act, 1988 and while substituting the new Section 13 of the P.C. Act it was never intended to keep the Section 13 (1) (d) alive, hence new substituted Section 13 of the Prevention of Corruption (Amendment) Act, 2018 will have retrospective effect. He has also relied upon the principles laid down by the Hon'ble Apex Court in the case of West U.P. Sugar Mills Assn. vs. State of UP, (2002) 2 SCC 645, wherein, it has been held inter-alia that-
"15. It would have been a different case where a subsequent law which modified the earlier law was held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded of the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here. It is not disputed that the State Government under Section 28 read with Section 18 of the Act, has power to frame rules prescribing the society commission. The State Government by substituting the new Rule 49 never intended to keep alive the old rule. The totality of the circumstances shows that the old rule was deleted and came to be substituted by the new Rule 49 and, therefore, we are of the view that after the new Rule 49 ceased to be operative, the old Rule 49 did not revive."
14.16- The Hon'ble Apex Court in a landmark judgment in the case of Union of India vs. Prafulla Kumar Samal [1979 (3) SCC 4], while enunciating the legal position as regards the power of the trial court to discharge an accused from the allegations that have been levelled against him at the stage of charge, held as follows:-
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult 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 while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
14.17- Similarly, Hon'ble Supreme Court of India in Dilawar Babu Kurane Vs. State of Maharasthra [(2002) 2 SCC 135] held as under:-
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4])."
14.18- In P. Vijayan vs. State of Kerala [(2010) 2 SCC 398], the Hon'ble Apex Court while taking note of the judgment in Prafulla Kumar Samal (supra) observed 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."
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."
14.19- The Apex Court, in Dipakbhai Jagdishchandra Patel vs. State of Gujarat [(2019) 16 SCC 547] observed as under:-
"At the stage of framing the charge in accordance with the principles which have been laid down by the Court, what the court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon the prosecution. The sifting is not to be meticulous in the sense the court dons the mantle of the trial judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion, must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."
14.20- In application under Section 482 Cr.P.C. No. 40 of 2020 (Anil Kumar Yadav v. State of U.P.) pending before the Lucknow Bench of this Court, issue about the retrospective effect of the Prevention of Corruption (Amendment) Act, 2018 was raised for consideration by advancing following submissions:-
i-Accused is entitled to be extended the benefit of amendment of Prevention of Corruption Act, 1988 whereby Section 13(1)(d) has been omitted. This benefit is to be extended retrospectively.
ii-Although Section 13(1)(d) has been omitted however the same has not been saved under Section 30 of the Prevention of Corruption Act and, therefore, the Provisions of Section 6 of the General Clauses Act cannot be invoked.
iii-Accused cannot be held liable under Section 13(1)(d) of Prevention of Corruption Act and neither can not be prosecuted.
iv-Since the law which has been omitted by the said amendment the rigour of criminal law has been mollified, the accused is entitled to take benefit of such mollification as per the law declared from time to time and such enactment shall have a retrospective effect.
Considering the aforementioned submissions, the High Court vide interim order dated 07.01.2020 has stayed the trial proceeding in the light of judgment in the case of Sushila N. Rungta (supra).
15- Now, this Court proceeds to deal with the judgments relied upon on behalf of C.B.I.
15.1-learned counsel for C.B.I. in support of his submission that at this stage this Court cannot go into the merit of the case, placed reliance upon the judgment in the case of Kaptan Singh Vs. State of Uttar Pradesh, (2021) 9 SCC 35, wherein it has been observed that after submission of charge-sheet, the High Court in exercise of power conferred under Section 482 Cr.P.C. is not required to go into the merit of the allegations as if the High Court is exercising the appellate jurisdiction and/or conducting trial.
15.2-In the case of Central Bureau of Investigation Vs. A. Raja and others (Criminal Misc. Application No. 1731 of 2020), decided on 23.11.2020, the C.B.I. had preferred leave to appeal against the order of acquittal, in which objection was raised challenging the maintainability of petition seeking leave to appeal on the ground that it has become infructuous in view of the amendment to P.C. Act, 1988 and provision of Section 13 (1) (d) of The P.C. Act has been repealed and Prevention of Corruption (Amendment) Act 2018 does not contain saving clause and the legislature has not amended Section 13 of the P.C. Act, 1988. Since Reference in this regard was pending before the Division Bench, therefore request was made to adjourn the matter, but Hon'ble Single Judge of the Delhi High Court while deciding the said issue of maintainability vide order dated 23.11.2020 has held that the provisions of General Clauses Act have to be read into the provisions of every statute which has been enacted after coming into force of the General Clauses Act. That being the case, the General Clauses Act, 1897 no doubt applies to Prevention of Corruption (Amendment) Act, 2018, being a statute which has come into force after the enactment of General Clauses Act. It is further held that wherever there is repeal of an enactment of General Clauses Act, the consequences laid down in Section 6 of General Clauses Act will follow unless different intention appears from the amending Act. Accordingly, the Court was of the opinion that there is no impediment in hearing the criminal leave to appeal. Accordingly, prayer for adjournment was refused.
15.3- In the case of State of Rajasthan Vs. Tejmal Choudhary, 2022 Live Law (SC) 158, the Hon'ble Apex Court has held that every statute is prospective, unless it is expressly or by necessary implication made to have retrospective operation.
Analysis 16-Having heard the submissions of learned counsel for the parties and examined the matter in its entirety, I find that from the contents of charge-sheet, it appears that main grievance of the prosecution is that no effort was made by the authorities concerned to give work to NIC. Likewise M/s Odyssey having expertise in supply and execution of work involving computer hardware and software, which was empanelled also with UPLC was not taken into consideration in the selection of firm for executing the HMIS project. Selection of UPLC by the officers of NRHM and selection of applicant-Ajay Mishra's firm M/s Infolink Consultancy Services Pvt Ltd. by the officers concerned of UPLC was not in accordance with due procedure and tender process. Had the work been allocated to NIC, the cost of software development to the tune of Rs. 2.4 crores could have been saved but adopting different modus operandi work order was given to the applicants under a criminal conspiracy in collusion with co-accused. In this way the vendor had charged much higher rates of the software application.
17-In the light of aforesaid allegations and filtering out unnecessary details, it would also be apposite to mention here the following relevant facts, which are not disputed and necessary for the just decision of the case.
17.1-As per case of prosecution, in the month of June 2009, there was an allocated budget of Rs. 5.25 crores by Central Government under National Rural Health Mission for installation of Hospital Management Information System project in 15 district level hospitals @ Rs. 35 lacs per hospital on the model of district hospital Bahraich.
17.2-The district hospital Bahraich was developed and executed by National Informatics Centre (NIC) and UP Health System Development Programme (UPHSDP).
17.3-The modalities for implementation of HMIS project were finalized in a meeting dated 06-07-2009 under the Chairmanship of Shri Chanchal Tiwari, the then Secretary, Family Welfare, Government of UP and Mission Director, NRHM, Lucknow, wherein it was resolved to identify 15 district hospitals in which the project will be executed and it was further resolved to associate both the agencies NIC and UPHSDP for the purpose of survey and preparation of estimates in 15 hospitals and after these exercise, an agency be identified for implementation of the said project.
17.4- Later on, Mr. Pradeep Kumar Shukla, the then Principal Secretary, Medical Health, Government of U.P. took over charge as Mission Director, NRHM in place of Shri Chanchal Tiwari and said decision dated 06.07.2009 was modified on 06.08.2009 by Shri Pradeep Kumar Shukla in the next meeting of Executive Committee of the NRHM and it was decided to utilize the services of NIC or any Central/State reputed agencies dealing in IT/Electronics. The said decision was further ratified in next meeting dated 12.08.2009 of Executive Committee of the NRHM and it was also decided that out of the identified agencies, if necessary, one organization can be taken in the advisory role and the other can be the executing agency. The said minutes were signed by Shri Pradeep Kumar Shukla.
17.5-The aforesaid decision taken in the meetings dated 06.08.2009 and 12.08.2009 have not been challenged by anyone and the same attained finality.
17.6-Thereafter Shri Pradeep Kumar Shukla being Director of NRHM assigned the said project to UP Electronics Corporation Ltd (UPLC).
17.7- UPLC further got implemented the said HMIS project through applicant/M/s Infolink Consultancy Services Pvt Ltd. giving work order to him on 22.04.2010 as per prevalent practice and policy adopted by UPLC.
17.8-The Applicant no. 1, who is a service provider/private vendor engaged in the business of providing IT solutions and other software, computerized processing works completed the work in terms of work order.
17.9- On the day of issuance of work order, M/s Infolink Consultancy Services Pvt Ltd. of applicant no.1 was empanelled with UPLC.
17.10-The work assigned to applicants by UPLC has been completed in terms of work order and within the budget.
17.11-So far as payment against work in question to applicant Ajay Mishra/vendor-M/s Infolink Consultancy Services Pvt Ltd. is concerned, there is no dispute that UPLC made payment of Rs. 3,66,72,009/- (Rs. 3,75,63,403-TDS Rs. 8,91,394/-) to vendor against bill of Rs. 4,83,91,682/-. As such there is no excess payment to the applicant than the quoted prices by him.
17.12-The work in question has been done in less than the proposed budget of Rs. 5.25 crores.
17.13-There is no financial loss to UPLC.
17.14-So far as selection of agency/vendor is concerned, it was the duty and responsibility of authorities concerned of NHRM to select the agency for the HMIS project following due procedure and further duty was also cast upon authority concerned of UPLC to select and assigned the work of HMIS project to appropriate vendor strictly in accordance with due procedure and policy applicable for the said purpose.
17.15- If there is any irregularity or illegality in the selection of vendor/executor of HMIS project, the applicant (Ajay Mishra) being private service provider/vendor cannot said to be liable on the presumption without any concrete material evidence of criminal conspiracy.
17.16-It is very common and general tendency that every private person keeps trying to get work order in his favour. In the present case, UPLC has issued work order in favour of M/s Infolink Consultancy Services Pvt Ltd.
17.17-Here it would also be useful to mention Section 13 (1) (d) of the Prevention of Corruption Act, 1988, which read thus:-
"13.Criminal misconduct by a public servant-
(1) A public servant is said to commit the offence of criminal misconduct-
(a)........
(b).......
(c)........
(d) if he,--
(i) by corrupt or illegal means, obtains for himself 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 valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.'' 17.18-The aforementioned Section 13(1)(d) of the Prevention of Corruption, Act 1988 has been amended by the Prevention of Corruption (Amendment) Act, 2018 (16 of 2018) with effect from 26.07.2018, which are as follow:-
"7. Amendment of Section 13- In section 13 of the Principal Act, for sub-section (1), the following shall be substituted, namely:--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or
(b) if he intentionally enriches himself illicitly during the period of his office.
Explanation 1.--A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.
Explanation 2.--The expression ''known sources of income'' means income received from any lawful sources.".
17.19-On perusal of Section 13 (1)(d) of the Prevention of Corruption Act, 1988 and Section 7 of the Prevention of Corruption (amendment) Act, 2018, it is clear that the same are applicable for a misconduct by a public servant. The applicants before this Court admittedly is not a public servant. There is no allegations of demand or acceptance of gratification by the public servant from the applicant no. 1 for undue favour at the hands of the concerned public officers. There is no allegation that any bribe was given by the applicant no. 1 to the authorities concerned for getting work order in his favour.
17.20- With regard to aforementioned amendment dated 26.07.2018, learned counsel for applicant heavily relying upon the judgment of the Hon'ble Apex Court in the case of Sushila N. Rungta v. Tax Recovery Officer (2019) 11 SCC 795 that since there is no saving clause in the Prevention of Corruption (Amendment) Act, 2018, therefore, the provisions of General Clauses Act, 1897 shall not be attracted whereas on behalf of the Central Bureau of Investigation, relying upon the judgment dated 23.11.2020 of Hon'ble Single Judge of Delhi High Court in the matter of C.B.I. Vs. A. Raja and others passed in Criminal Misc. Application No. 1731 of 2020 (Supra), it is argued that the provisions of General Clauses Act have to be read into the provisions of every statute which has been enacted after coming into force of the General Clauses Act. Therefore the General Clauses Act, 1897 applies to Prevention of Corruption (Amendment) Act, 2018. It is also submitted that in the said case the Hon'ble Single Judge has held that wherever there is repeal of an enactment, the consequences laid down in Section 6 of General Clauses Act will follow unless different intention appears from the amending Act.
17.21-During the course of argument while making rival submissions by the learned counsel for the parties, it was pointed out that the issue about the retro-activity or otherwise of the amendment dated 26.07.2018 made to the Prevention of Corruption Act, 1988, is still sub judice before the Division Bench of Delhi High Court in Crl. Ref. No.1/2019 as well as before the Lucknow bench of this Court in application under Section 482 Cr.P.C. No. 40 of 2020 (Anil Kumar Yadav Vs. State of U.P.), in which interim stay order has been granted on 07.01.2020 in the light of principles laid down by the Hon'ble Apex Court in the case of Sushila N. Rungta (supra). Since both the above matters are at the stage of hearing, hence this Court is not going to deal with that aspect of the matter.
17.22- Considering the allegations and evidence brought on record by the prosecution, prima-facie, I find that basic ingredients of Section 13 (1)(d) of the Prevention of Corruption Act, 1988 are lacking qua the applicants.
17.23-Now this Court proceeds to deal another allegation of criminal conspiracy, which has been defined in Section 120A of the Indian Penal Code, 1860, which read thus:
"When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
17.24- Section 120B of the Indian Penal Code provides for punishment for criminal conspiracy. Criminal conspiracy is an independent offence. It is punishable separately. Its ingredients are
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either
(a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means.
17.25- It is also relevant to mention that in the light of basic ingredients of criminal conspiracy as noted above, it is apparent that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy, hence the cumulative effect of the circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Ex facie, there is no material to show that a conspiracy had been hatched by the applicant no.1, hence no offence for Section 120A I.P.C. punishable under Section 120B I.P.C. is made out against the applicants.
17.26- So far as alleged offence under Section 420 I.P.C. is concerned, it is relevant to note that in the case of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168, the Hon'ble Apex Court interpreted Sections 415 and 420 of IPC to hold that fraudulent or dishonest intention is a precondition to constitute the offence of cheating. The relevant extract from the judgment reads thus:
"14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest."
In the light of ingredients of Section 420 I.P.C. as set out in the above judgment, no case under Section 420 I.P.C. is made out against the applicants.
17.27- So far as charge under Section 471 I.P.C. is concerned, it would be useful to refer leading judgment in the case of Mohammad Ibrahim and others Vs. State of Bihar and another, (2009) 8 SCC 751, wherein Hon'ble Apex Court has elaborately discussed and laid down the ingredients of offence under Section 463,464,467 and 471 mentioning inter-alia that forgery as defined under Section 463 I.P.C. in turn dependents upon creation of a 'false document' as defined under Section in Section 464 I.P.C. A person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses. It has also been observed that if there is no false document, offences under Section 467 and 471 I.P.C. are also not made out.
In view of the above principle of law, this Court finds that no offence under section 471 I.P.C. is made out against the applicants.
Outcome of analysis 18-This Court is also of the opinion that case of every accused turns on its own facts and evidence. Even one additional or different fact and role of individual may make a big difference between the conclusion in cases of other co-accused, because even a single significant detail may alter the entire aspect.
19- In view of the above, considering the overall facts and circumstances as well as contents of charge-sheet filed by C.B.I as noted and discussed above, I find that the case of applicant no.1-Ajay Mishra, who is a private entity / vendor stands on different footing than that of other co-accused persons who, at the relevant point of time, were holding different posts in NHRM and UPLC. Hence the case of applicants is distinguishable from other co-accused.
20- As a fallout and consequence of aforementioned discussion, this Court feels that criminal prosecution of the applicants under the facts and material evidence relied upon by the C.B.I. in support of charge-sheet against the applicants is abuse of the process of the Court as no offence is made out against them, hence impugned orders dated 02.03.2024 and 29.04.2024 are liable to be quashed in order to secure the end of justice and in the light of principle of law laid down by the Hon'ble Apex Court in the cases of Union of India vs. Prafulla Kumar Samal (supra), Dilawar Babu Kurane (supra), P.Vijayan (supra) and Dipakbhai Jagdishchandra Patel (supra). Hence, the applicants are liable to be discharged.
21- Accordingly, both the impugned orders dated 02.03.2024 and 29.04.2024 qua applicants are hereby quashed. Applicants are discharged from the charges under sections 120-B, 420 and 471 IPC & section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 levelled against them.
22- This application under Section 482 of Cr.P.C. stands allowed.
Dated: 07.07.2025 Ishrat