Delhi District Court
Cbi Case No. 407/2019 Cbi vs . Dr. Anup Mohta & Anr. Page 1 Of 30 on 4 March, 2021
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (PC ACT): CBI-16:
ROUSE AVENUE DISTRICT COURTS: DELHI.
IN THE MATTER OF:
CBI Case No.: 407/2019
CNR No.: DLCT110017512019
RC No.: 42(A)/2016-CBI/ACB/ND
U/s: 120B IPC and Section 13(2) r/w Sec. 13(1)(d) of PC Act,
1988
CENTRAL BUREAU OF INVESTIGATION
VERUS
1. Dr. Anup Mohta S/o Sh. R.K. Mohta,
28B, Pocket-C, SFS Flats,
Mayur Vihar, Phase -III, Delhi - 96.
2. Dr. Nikunj Aggarwal S/o Sh. Ramesh Kumar Aggarwal,
H.No. 7/33, 1st Floor,
Roop Nagar, Delhi - 07.
04.03.2021
ORDER ON CHARGE:
1. The present FIR was registered on the basis of a written
complaint dt. 04.11.2016 from Sh. K.S. Meena, Dy. Secy. (Vig.), GNCTD,
Directorate of Vigilance, New Delhi. The allegations were that accused Dr.
Anup Mohta (A-1), while being posted as Director, Chacha Nehru Bal
Chikitsalaya ('CNBC'), approved appointment of accused Dr. Nikunj Aggarwal
(A-2) to the post of Sr. Resident (Ortho) on ad hoc basis. It is alleged that the
said appointment was illegal and was made in total disregard of rules and
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 1 of 30
procedure. It is alleged that at the relevant time, there was no post of Sr.
Resident (Ortho) vacant in CNBC. The FIR was registered on 28.12.2016 u/s
120-B of Indian Penal Code ('IPC') and S. 13(2) r/w S. 13(1)(d) of the
Prevention of Corruption Act, 1988 ('PC Act')(prior to amendment of 2018).
Investigation was initiated.
2. During investigation, various documents were collected.
Statements of various persons were also recorded.
3. After analysing the material so collected, the investigating
agency reached to a conclusion that Dr. Anup Mohta and Dr. Nikunj Aggarwal
did commit the offences as alleged. The appointment of Dr. Nikunj Aggarwal
was found to be illegal and against rules and settled practices. It was found
that there was no proposal from the department to engage a Sr. Resident
(Ortho), nor any advertisement was issued by the hospital for selection of Sr.
Resident (Ortho) nor any walk-in interview was conducted for this purpose. It
was found that Dr. Nikunj Aggarwal had made a handwritten application on a
plain paper for the said post and Dr. Anup Mohta, as Director of CNBC,
approved the said appointment without following any procedure. Further it
was found that when Dr. Nikunj Aggarwal was appointed, there was no vacant
post of Sr. Resident (Ortho) and he was taken on strength against vacant post
of Faculty (Ortho). It was also found that after few days of appointment,
services of Dr. Aggarwal were requisitioned as OSD to Minister (Health),
GNCT of Delhi. It was also found that as per Residency Scheme, resident
doctors are engaged for working in hospitals, and not for other duties. It is also
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 2 of 30
alleged that Dr. Nikunj Aggarwal was nominated for participation in a training
programme at IIM, Ahmedabad on government expenses in contravention of
Residency Scheme; and further he was nominated for a proposed visit to
Beijing, China as member of official delegation which was again in
contravention of Residency Scheme. Thus the present chargesheet came to
be filed against both the accused for aforesaid offences. Sanction for
prosecution was obtained against Dr. Anup Mohta only.
4. None of the accused was arrested during investigation. Both the
accused were summoned for the offences u/s 120B IPC r/w 13(2) r/w 13(1)(d)
of PC Act, 1988. Accused Dr. Anup Mohta was also summoned for substantive
offence u/s 13(2) r/w 13(1)(d) of PC Act. After appearance of both the
accused, copies of chargesheet and documents were supplied to them.
5. I have heard Sh. Kapil Munda, Ld. Sr. PP for the CBI, Sh. P.K.
Dubey, Ld. Counsel for accused no. 1 Dr. Anup Mohta and Ms. Rebecca M.
John, Ld. Sr. Adv. for accused no. 2 Dr. Nikunj Aggarwal on charge. I have
perused the record as well.
SUBMISSIONS FOR THE PROSECUTION :
6. Sh. Kapil Munda, Ld. Sr. PP for CBI, submitted that Dr. Anup
Mohta acted in total disregard of the rules and practices. He highlighted that
there was no post of Sr. Resident (Ortho) vacant at the relevant time. Further,
general public was not informed by way of advertisement before making the
appointment. He pointed out that the appointment was made without following
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 3 of 30
the rules and procedure i.e. Memorandum of Association of CNBC; and
Residential Scheme regarding appointment of Resident Doctors. He
contended that appointment so made by accused no. 1 was an act of
corruption and thus an offence within the meaning of the PC Act. He also
argued that accused no. 2 was the beneficiary of the illegal acts of accused
no.1 and was also in conspiracy with him and, therefore, accused no. 2 is also
liable to be charged.
7. He referred to statements of witnesses recorded u/s 161 CrPC,
particularly the statements of Sh. K.S. Meena (PW-1), Dr. Anil Aggarwal (PW-
2), Sh. Suresh Chand Verma (PW-3), Dr. Sapna Bathla (PW-5), Dr. P.K. Malik
(PW-6), Ms. Deepika Kapur (PW-7), Dr. Tarun Seem (PW-10), Dr. Promila
Gupta (PW-12), and Dr. Sunil Bhatnagar (PW-15) in support of his abovenoted
submissions. He further contended that act of appointment of Dr. Nikunj
Aggarwal was totally against the Residency Scheme. He vehemently
submitted that such an appointment cannot be sustained being illegal. He
relied upon "Ashis Kumar Banik v. Tripura Co-operative Land", decided on
7th December, 2000 by Hon'ble Gauhati High Court, "Gajendra Prasad v. The
Executive Engineer and Others", Civil Misc. Writ Petition No.34729 of 2007
decided on 2nd July, 2010 by Hon'ble Allahabad High Court; "Jayantibhai S
Bhrawad v. Ahmedabad Municipal Corpn", Letter Patent Appeal No. 572 of
2014 decided on 28th August, 2014 by Hon'ble Gujarat High Court; and
"Kuldeep Herenz v. Water Resources Department", W.P. (S) No. 81 of
2013 decided on 6th May, 2013 by Hon'ble Jharkhand High Court; in this
regard. In all these cases, appointment of affected persons were not
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 4 of 30
sustained being against relevant rules and procedures.
8. Ld. Sr. PP relied upon "Mauvin Godinho v. State of Goa",
(2018) 2 SCC (Cri) 63 to submit that it is a fit case for framing of charges. He
stressed that there is prima facie case of commission of offences by the
accused persons.
SUBMISSIONS FOR THE DEFENCE :
For Accused No. 2
9. Countering these submissions, and beginning first, Ms. Rebecca
M. John, Ld. Sr. Counsel for accused no. 2, argued that the prosecution case
is misconceived and is a result of misconstruing the facts. She contended that
the appointment of accused no. 2 by accused no. 1 was totally in consonance
with the relevant rules and procedure. She referred to various documents and
statements to buttress her submissions. She argued, in the alternative, that
the appointment of accused no. 2, taken as the worst case against him, at the
most, amounted to irregular appointment and not illegal on any count.
10. Ld. Sr. Counsel for accused no. 2 referred to statement of Dr.
Anil Aggarwal (PW-2) recorded u/s 161 CrPC. In the said statement, Dr. Anil
Aggarwal had stated that one Dr. Kavish had resigned on 04.08.2015 and was
relieved on 10.08.2015. Ld. Counsel pointed out that Dr. Nikunj Aggarwal had
applied on 06.08.2015 and joined on 14.08.2015. She wanted to convey that
as Dr. Kavish had already resigned and was to be relieved soon, an
immediate replacement was necessitated. She referred to statement of Dr.
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 5 of 30
Sapna Bathla (PW-5) and pointed out that there is provision for immediate
appointment under emergent circumstances. Taking cue from this statement,
Ld. Sr. counsel suggested that appointment of Dr. Nikunj Aggarwal was made
under emergent circumstances by accused Dr. Anup Mohta which was fully
justified.
11. Ld. Sr. Counsel submitted that the Residency Scheme in itself is
not a law and violation thereof is not an offence. She referred to "R. Sai
Bharathi v. J. Jayalalitha & Others", (2004) 2 SCC 9 in this regard. In the
said case, it was held that a document that does not have statutory force and
is not enforceable in a court of law, nor has any sanction or procedure for
dealing with a contravention cannot be construed as a legal prohibition. Ld. Sr.
Counsel emphasized that, as a worst case, only disciplinary action might have
been initiated but prosecution for a criminal offence is unwarranted. She
relied upon "Kanwarjit Singh Kakkar v. State of Punjab & Anr.", (2011) 13
SCC 158. In this case, it was held that where a doctor in government service
was doing private practice, the same was not corruption as under PC Act. It
was merely violation of a government circular. She further referred to
"Dhananjai Kumar Pandey v. CBI", 2015 SCC Online Bom 5625 in which it
was held that violation of procedure in appointment would only lead to
departmental enquiry against those who were in-charge.
12. Ld. Sr. Counsel went on to put forth that dishonest intention is an
essential ingredient of an offence u/s 13(1)(d) of PC Act. In this context, she
relied upon "C. K. Jaffer Sharief v. State (Through CBI)", (2013) 1 SCC
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 6 of 30
205.
13. Pointing out further shortcomings of prosecution case, Ld. Sr.
Counsel submitted that there is no material to suggest that there was any
conspiracy between the accused persons. She highlighted that there is no
witness or document through which prosecution can show that there was any
conspiracy. She cited "State of Kerala v. P. Sugathan & Anr.", 2000 SCC
(Cri) 1474 and invited this court's attention to the observations made therein.
It was observed in that case that a few bits here and a few bits there cannot
be held adequate to hold accused persons guilty of criminal conspiracy. She
further referred to "CBI Hyderabad v. K. Narayan Rao" (2012) 9 SCC 512
and "Kehar Singh & Ors. v. State", (1998) 3 SCC 609 to buttress her
arguments in this regard. She drew parallel between these cited cases and
the present case and contended that there is no evidence of any conspiracy
between accused no. 1 and 2.
14. Ld. Sr. Counsel argued that, at the most, appointment of Dr.
Nikunj Aggarwal was violation of Residency Scheme which is not an offence
as there was no legal prohibition. It was merely violation of office circular. She
stressed that it was merely a wrong decision on part of Dr. Anup Mohta but it
was not an illegal decision. She referred to "Tarlochan Dev Sharma v. State
of Punjab & Others", (2001) 6 SCC 260, and submitted that willful abuse of
power and erroneous exercise of power are to be treated differently. She
pointed out that Dr. Nikunj Aggarwal was possessing all the qualifications
needed for appointment as a Sr. Resident. Ld. Sr. counsel also contended
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 7 of 30
that there is no allegation that Dr. Anup Mohta had any intention of cheating
any person or that he gained something out of this appointment.
15. Ld. Sr. Counsel for accused Nikunj Aggarwal further submitted
that there is no material to frame charge against any of the accused. Relying
upon "Dilawar Balu Kurane v. State of Maharashtra", (2002) 2 SCC 135,
she contended that it is a fit case for discharge. In the said case, it has been
held that charges must be framed only when there is grave suspicion against
an accused, and an accused is entitled to be discharged if the evidence
against him, when taken as a whole, gives rise to some suspicion but not a
grave suspicion. Further, if two views are equally possible in the facts of the
case, the view favouring the accused must be taken even at the stage of
framing of charges.
16. Ld. Sr. Counsel also argued that sanction was not obtained in
respect of Dr. Nikunj Aggarwal which is fatal to the prosecution case. She
stressed that Dr. Nikunj Aggarwal was doing public duty and, therefore,
sanction should have been taken against him as well before launching the
prosecution. She relied upon "Govt. of AP v. P. Venku Reddy", (2002) 7
SCC 631. Further, Ld. Sr. Counsel submitted that the plea of sanction can be
taken at any stage. For this, she relied upon "Abdul Wahab Ansari v. State
of Bihar & Anr.", (2000) 8 SCC 500. Referring to "Rakesh Kumar Mishra v.
State of Bihar", (2006) 1 SCC 557, Ld. Sr. Counsel highlighted that
cognizance against a public servant is barred without a sanction u/s 197
CrPC.
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 8 of 30
17. Relying upon "A. Subair v. State of Kerala", (2009) 6 SCC 587,
Ld. Sr. Counsel argued that the ingredients of the offence under PC Act are
not made out in the present case.
18. As an additional plea, Ld. Sr. Counsel argued that since the
provisions of Sec. 13(1)(d) of PC Act, 1988 stand repealed vide amendment
made in 2018, the present prosecution cannot continue. She relied upon
"Kolhapur Canesugar Works Ltd. v. Union of India & Ors.", (2000) 2 SCC
536, and "Mahmadhusen Abdulrahim Kalota Shaikh (2) v. Union of India",
(2009) 2 SCC 1, and contended that since there is no saving clause in the
Amendment Act of 2018 regarding pending proceedings, it is to be taken as if
Sec. 13(1)(d) never existed, and thus must lead to closure of the present
prosecution.
For Accused No. 1
19. Sh. P.K. Dubey, Ld. Counsel for accused no.1, had
supplemented the submissions made by Ld. Sr. Counsel for accused no. 2.
He also referred to statements of various persons recorded u/s 161 CrPC. He
pointed out that there was no objection from any person who had processed
the file of appointment of Dr. Nikunj Aggarwal. Ld. Counsel vociferously
contended that Dr. Anil Aggarwal who had assessed Dr. Nikunj Aggarwal has
also not been made an accused which shows that there was no wrongdoing
in the appointment of Dr. Nikunj.
20. Ld. counsel for accused no. 1/Dr. Mohta also argued that
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 9 of 30
sanction was not properly granted. He contended that entire material was not
sent to the sanctioning authority and there was non-application of mind. He
relied upon "CBI v. Ashok Kumar Aggarwal", (2014) 14 SCC 295 in this
regard.
21. Ld. Counsel also took the same plea that it is a fit case for
discharge. He relied upon "Union of India v. Prafulla Kumar Samal", (1979)
3 SCC 4 in this regard. Laying down principles regarding discharge orders,
the Hon'ble Supreme Court held that excepting the cases of grave suspicion
which the accused is unable to explain, the accused is entitled for discharge.
22. Further contention of Ld. Counsel was that prosecution was
required to show not only that Dr. Mohta abused his position but also that such
abuse was dishonest. He cited "Maj SK Kale v. State of Maharashtra",
(1977) 2 SCC 394 in support of his contention. In S.K. Kale's case (supra), it
was held by Hon'ble Supreme Court that where abuse of position is alleged by
the prosecution, it must also show necessarily that such abuse was dishonest.
The observations were made in respect of provisions under the old PC Act of
1947 i.e. 5(1)(d) & 5(2) which were similar to Section 13(1)(d) & 13(2) of PC
Act, 1988.
23. Treading the same path as done by Ld. Sr. Counsel for accused
no. 2, Ld. Counsel for accused no. 1 also submitted that the Residency
Scheme is merely a set of instructions which were framed for the purpose of
smooth functioning of hospitals. He contended that those instructions were
not law within the strict meaning of the term. He put forth that if there is any
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 10 of 30
violation of such instructions, that cannot lead to criminal prosecution. In this
context, he relied upon "Syndicate Bank v. Ramachandran Pillai", (2011)
15 SCC 398. It was observed in this case by the Apex Court that if any
executive instructions are to have the force of statutory rules, it must be
shown that they were issued either under the authority conferred on the
Central Govt. or the State Govt. or other authority by some statute or the
constitution. It further held that guidelines or executive instructions which are
not statutory in character are not "laws". Thus, Ld. Counsel asserted that the
Residency Scheme cannot have the status of 'laws' and it were merely
instructions. He also cited "G.J. Fernandez v. State of Mysore", (1967) 3
SCR 636 wherein it was held that executive instructions are not rules which
are justiciable. Ld. Counsel further cited "Union of India v. Naveen Jindal &
Anr.", (2004) 2 SCC 510. It was held in this case that Flag Code containing
executive instructions is not 'law' within the meaning of Art. 13 of the
Constitution. He then referred to "State of Kerala & Anr. v.
Chandramohanan", (2004) 3 SCC 429 wherein also it was held that
government circulars were not 'law' within the meaning of Art. 13.
24. Ld. Counsel concluded by submitting that there was no violation
by Dr. Anup Mohta in appointing Dr. Nikunj Aggarwal, and if there was any, the
violation was merely violation of executive instructions which does not give
rise to any prosecution.
25. Both the learned counsels prayed for discharge of both the
accused persons.
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 11 of 30
REBUTTAL BY PROSECUTION :
26. Regarding there being no sanction in respect of accused no. 2
Dr. Nikunj Aggarwal, Ld. Sr. PP for CBI relied upon "L. Narayan Swamy v.
State of Karnataka & Ors.", 2017 CriLJ 1084. It was held in this case that if
accused public servant was not holding the post which is alleged to have been
misused at the time of taking cognizance, then sanction is not required. He
thus contended that when cognizance was taken, accused no. 2 was not
holding the post which was misused. In fact, accused had left the said job
itself.
27. Regarding violation of the Residency Scheme, Ld. Sr. PP for
CBI, while referring to "State of Bihar v. Upendra Narayan Singh & Ors."
Civil Appeal No. 1741/2009 decided on 20 th March, 2009 by Hon'ble Supreme
Court; "Anil Lamba & Ors. v. Govt. of NCT & Ors." WP(C) No. 1958/2017
decided on 6th March, 2017 by Hon'ble Delhi High Court; "The State of Bihar
& Ors. v. Devendra Sharma" Civil Appeal No. 7879/2019 decided on 17 th
October, 2019 by Hon'ble Supreme Court; "Avtar Singh vs. UOI & Ors."
SLP[C] No. 20525/2011 decided on 21 st July, 2016; and "Jharkhand Public
Service Commission vs. The State" Cr.MP No. 45/2014 decided on 7 th
March, 2014 by Hon'ble Jharkhand High Court, emphasized that making
appointments against existing rules and procedures cannot be ignored. In
Upendra's case (supra), various adhoc appointments were made in violation
of office instructions. The persons who were so appointed sought
regularization. The Hon'ble Supreme Court declined the said relief. In Anil
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 12 of 30
Lamba's case (supra), contractual employees sought regularization. The
Hon'ble Delhi High Court refused the said relief observing that public
appointments can be made only in conformity with rules and regulations and
constitutional scheme. It observed that there cannot be back door entry. In
the case of Devendra Sharma (supra), various persons appointed to Class-III
and IV posts sought regularization which was again declined. The Hon'ble
Apex Court observed that appointments made without any sanctioned post,
without any advertisement giving opportunity to all eligible candidates to apply
and seek public employment and without any method of recruitment were
back door entries, an act of nepotism and favoritism and thus were illegal
appointments. In Avtar Singh's case (supra), the Hon'ble Apex Court
considered the aspect of concealing of information regarding previous criminal
cases by candidates seeking public appointments. And in Jharkhand PSC's
case (supra), Hon'ble Jharkhand High Court was dealing with an order of the
lower court regarding a criminal case which was concerning forgery committed
by candidates seeking public appointments.
28. Ld. Sr. PP thus contended that the violation of the Residency
Scheme cannot be taken lightly and it is a fit case for framing of charges.
29. He further referred to "State of Tamil Nadu by Inspector of
Police Vigilance and Anti-Corruption v. N. Suresh Rajan & Others",
(2014) 3 SCC (Cri) 529, to submit that mini trial is not contemplated at this
stage. According to him, the pleas taken by the accused persons can be
decided only after trial. If those pleas are considered at this stage, that will
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 13 of 30
amount to mini trial which is not permissible.
OPINION OF THIS COURT :
30. The case of the prosecution is for offence under Sec. 13(1)(d) of
the PC Act, 1988 (prior to amendment of 2018). The relevant provisions of
Sec. 13(1)(d) of the PC Act, prior to amendment, were as follows:
"13. Criminal misconduct by a public servant.--(1) A public
servant is said to commit the offence of criminal misconduct,
--
(a) x x x x x;
(b) x x x x x;
(c) x x x x x;
(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; or
(e) x x x x x.
31. The law regarding framing of charges is well settled. Observations made in Dilawar's case (supra) are worth noting. It was observed 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 CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 14 of 30 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."
32. This was further explained in Suresh Rajan's case (supra) and it was held that mini trial is not contemplated at the stage of trial.
33. However, consideration of arguments of the defence, based on the documents and statements relied upon by the prosecution, cannot be termed mini trial. When the defence, while not disputing the correctness of the documents, and while accepting the statements of witnesses on their face value, still points out intrinsic shortcomings and defects of the prosecution case, those contentions need to be considered, evaluated and decided. This exercise cannot be termed a mini trial. Hence, I proceed accordingly.
34. Let me deal with the additional plea and few other contentions first. By amendment in 2018, Sec. 13 of the PC Act stands redrafted. The language of the section has undergone complete change. Now, after amendment, there is no Sec. 13(1)(d) as was earlier existing. It is also an admitted position that there is no provision in the Amendment Act, 2018 as to what will happen to pending cases. This situation has given rise to various CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 15 of 30 interpretations one of which is the same as propounded by ld. Sr. Counsel. However, it is to be noted that the question of the effect of this amendment on the pending cases is under consideration of Hon'ble High Court of Delhi in a batch of petitions and a decision is awaited. In these circumstances, it will not be appropriate for this court to go into the merits and demerits of the said contention.
35. The contentions regarding invalid sanction in respect of Dr. Mohta are to be rejected. In Ashok Kumar Aggarwal's case (supra) itself, it was held by Hon'ble Supreme Court that the question of validity or invalidity of a sanction order is a matter of trial. The sanction order (D-40) is a detailed sanction order and prima facie appears to be validly granted. Thus, these submissions are rejected.
36. As far as aspect of no sanction qua Dr. Nikunj Aggarwal is concerned, in my view, no sanction was required under Sec. 19 of PC Act in respect of him as he was not a public servant, initially when he was appointed; and later also, when the charge-sheet has been filed and cognizance was taken by which time he had already left the said job. It is noteworthy that the present case relates to PC Act prior to amendment of 2018, at which time, there was no requirement of sanction in respect of public servants who were no more in service. Further, no sanction was required under Sec. 197 of CrPC also. As Sec. 120-B IPC has been invoked, there was no necessity of sanction u/s 197 CrPC because it is no part of duty of a public servant to enter into criminal conspiracies. Reference may be made to "State of H.P. Vs M.P. CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 16 of 30 Gupta", (2004) 2 SCC 349 in this regard. Reliance of ld. Sr. Counsel on various judgments in support of her contentions is of no avail.
37. Now let us come to the main contentions.
38. The hospital in question i.e. Chacha Nehru Bal Chikitsalya is an Autonomous Institute under Govt. of NCT of Delhi. It is a Society. Its complete name is Chacha Nehru Bal Chikitsalya Society (CNBC). A reading of the Memorandum of Association (MoA) of CNBC (document available in D-
33) would reveal that there is a Governing Council for managing, administering, directing and controlling the affairs of the said Society. Director of CNBC is the Member Secretary of the Governing Council. Clause 6.2 of the memorandum provides that an Institute specific Selection Committee shall be appointed by the Govt. for recruitment of Doctors. It is also provided that Director of the Institute will be a member of the Selection Committee.
39. There is a Residency Scheme also which is available as D-22.
40. Extensive reference was made to Residency Scheme by both the parties. As per Clause 3(b)(iii) of the Residency Scheme, Senior Residents are to be selected by a Selection Committee as is formed for selection of Junior Residents as per Clause 3(a)(i). As per the later Clause, a Selection Committee is required to be constituted and it is to consist of the following:
1). Director/ Principal/ Medical Superintendent of the hospital/ Institution concerned.
2). Consultant/ Director Professor/ Senior Specialist/ Professor/ Specialist of the concerned specialty.CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 17 of 30
3). Professor/ Assoc. Professor/ Asstt. Professor/ Senior Specialist/ Specialist of the same specialty or any other specialty.
4). An officer belonging to SC/ST may also be included as a member of the Selection Committees in accordance with Government instructions on the subject.
41. Dr. Anil Aggarwal (listed witness PW2), in his statement u/s 161 CrPC dated 04.02.2017, told that he had interacted with Dr. Nikunj Aggarwal on 08.08.2015 and found him 'satisfactory' for post of SR (Ortho). In his further statement dated 07.02.2017, Dr. Anil Aggarwal told that one Dr. Kavish Singh, SR suddenly gave resignation notice on 04.08.2015 and shortage of the staff was communicated to Director CNBC. He also stated that Dr. Nikunj Aggarwal was appointed as Sr. Resident (Ortho) without any interview for smooth functioning of the department. He also told that vacancy created after resignation of Dr. Kavish Singh was published for appointment on 07.09.2015.
42. As per statement of Dr. Sapna Bathla (listed witness PW5), recorded u/s 161 CrPC on 18.03.2017, there was no vacant post of Sr. Resident (Ortho) in CNBC on 10.08.2015 but one post of Asstt. Professor (Ortho) was lying vacant and pay scale of both the posts was same. She also stated that in emergent requirements, if any candidate approaches the hospital, he/she can be appointed after screening interview by concerned HOD but this procedure is followed in rare cases of emergency particularly for patient care services. Regarding attending training programme at IIM Ahmedabad by Dr. Nikunj Aggarwal, she informed that the expenditure on the said training programme was not approved by the finance committee of the CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 18 of 30 hospital. Dr. Sapna Bathla had even sent a letter dated 13.02.2017 to the investigating agency in this regard. Same is D-30.
43. Perusal of statements of concerned witnesses and documents would reveal that Dr. Nikunj Aggarwal had submitted his application (D-5) alongwith relevant documents on 06.08.2015 which was received in the Admn. Branch on 07.08.2015 and diaried vide No.6466/CNBC (D-37). Thereafter, the application was put up before Dr. Anup Mohta who marked the application to Dr. Anil Aggarwal (PW2) "for comments after assessment". Thereafter, Dr. Anil Aggarwal, as HOD (Ortho), assessed Dr. Nikunj Aggarwal and remarked "satisfactory" on the application on 08.08.2015. The application was put up again before Dr. Mohta who wrote "may be appointed". Office Note (D-34) was accordingly prepared. Offer letter dated 10.08.2015 (D-6) was issued and Dr. Nikunj Aggarwal joined the service on 14.08.2015 vide joining report (D-8).
44. It is also revealed that one Dr. Kavish Singh had submitted his resignation from the post of Sr. Resident (Ortho) on 04.08.2015 w.e.f 03.09.2015. However, on 10.08.2015, he gave another notice for resigning w.e.f 12.08.2015 and he left the said job on 12.08.2015 and joined Safdarjung Hospital on 13.08.2015.
45. It is also revealed that Sr. Resident doctors used to be appointed at CNBC by giving wide publicity in leading national newspapers, website of the CNBC Hospital as well as display on the notice board. Sr. Resident doctors used to be appointed on ad hoc basis according to availability of vacant posts in CNBC. Generally, a walk-in interview used to be conducted by CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 19 of 30 a Selection Board. Appointment used to be made by the Director CNBC. However, it is also found that due to emergent requirement, if any candidate approached the hospital, he could be appointed after screening interview by the concerned HOD. This procedure was followed in rare cases (vide statement of Dr. Sapna Bathla/PW5). Dr. Bathla states that Dr. Nikunj Aggarwal was appointed in emergency conditions in the interest of patient care services as per practice.
46. It is also revealed that on 10.08.2015, no post of Sr. Resident (Ortho) was vacant in CNBC. But one post of Assistant Professor (Ortho) was vacant at that time. Pay scale of both the posts was same.
47. It is also revealed that services of Dr. Nikunj Aggarwal were requisitioned as OSD to the Health Minister, GNCTD and he joined there on 26.08.2015. It is further found the he was granted extension from time to time at CNBC and he continued to work as OSD. He worked upto 31.10.2016. There was no further extension.
48. It is also revealed that salary of Dr. Nikunj Aggarwal for the months of September and October, 2016 was not paid to him. And as finance committee did not approve payment of Rs.1,15,000/- for training programme at IIM Ahmedabad, the said amount was deducted from the unpaid salary of the abovesaid two months and now only Rs.61,008/- were payable to Dr. Aggarwal.
49. Both the learned Counsels had made extensive submissions CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 20 of 30 that appointment Dr. Nikunj Aggarwal by Dr. Anup Mohta was justified. They had made reference to various documents to exhibit that the appointment was made with a justification i.e. under emergent circumstances due to sudden resignation of Dr. Kavish Singh. This aspect will be adverted to later on. The only aspect worth consideration, at this stage, is whether the Residency Scheme was followed or not; and if not, whether the said violation is prosecutable under the PC Act?
50. After reading the said Residency Scheme (D-22), it is more than apparent that the appointment of Dr. Nikunj Aggarwal was not as per the said Scheme. The procedure suggested in the said Scheme was not followed. No Selection Committee was constituted; no publicity was done; no walk-in interview was conducted, etc. Now, the more important question would be whether such violation of, or deviation from, the said Scheme renders Dr. Anup Mohta and Dr. Nikunj Aggarwal liable to be prosecuted under PC Act?
51. The whole case of the prosecution hinges on the interpretation of Residency Scheme.
52. A wholesome perusal of the Residency Scheme would reveal that these are mere instructions issued by the government for smooth appointment and working of Resident Doctors. The need for this Scheme can be traced to replacement of the then existing system of House Surgeons, Post-graduate Students and Registrars in 1974. System of six year Residency Scheme was introduced on recommendations of the Kartar Singh Committee Report in 1974. The document D-22, relied upon by the CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 21 of 30 prosecution, contains revised instructions applicable to the said Scheme. It is in these revised instructions that the procedure for selection of Junior and Senior Residents has been provided. As noted earlier, it prescribes constitution of a Selection Committee. However, it is also found that there is no provision at all in the said revised instructions about the consequences of its violation. What will happen in case appointment is made in violation of the said Scheme/instructions is nowhere provided.
53. The absence of such a provision is an indicator that the said Scheme i.e. D-22 is merely an advisory scheme for the matters it deals with. It does not get the status of 'law' or 'rules' made under authority of any law. Reliance is placed upon R. Sai Bharathi's decision (supra). In that case, a Code of Conduct for Ministers prohibited sale to, or purchase from, Government of any immovable property. However, accused persons one of whom was Chief Minister purchased some immovable property of the government. Holding that no offence u/s 169 IPC or Sec. 13(1)(d) PC Act was made out, the Hon'ble Apex Court observed as under:
"48. On a plain reading of the Section and seeking the assurance from the marginal heading as well, it is fairly clear that prohibition should flow from a law. Such law in the context of Section 169 IPC should mean that the law as ordinarily understood, that is to say, an enacted law or a rule or regulation framed under such law but not an executive order which confers no rights on anybody nor sets down legally enforceable obligations. The rules and administrative instructions governing the public servants holding the civil post have undisputedly no application in this case. The law, which is pointed out, is the Code of Conduct for Ministers issued in G.O.Ms.No. 1350, dated 26.7.1968 by the Government of Tamilnadu in the name of Governor. Para 2(b) thereof enjoins that a Minister, so long as he remains in CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 22 of 30 office, shall "refrain from buying from or selling to the Government, any immovable property except where such property is compulsorily acquired by the Government in usual course".
49. X X X X X
50. In our view, the Code of Conduct not having a statutory force and not enforceable in a Court of law, nor having any sanction or procedure for dealing with a contravention thereof by the Chief Minister, cannot be construed to impose a legal prohibition against the purchase of property of the Government so as to give rise to a criminal offence under Section 169 IPC. In law, there must be a specific provision prohibiting an act to make it illegal. A Code of Conduct prescribed by the Government under certain notification by itself cannot be elevated to the level of law as has been rightly held by the Andhra Pradesh High Court in the case of Vidadala Harinadhababu vs. N.T. Ramarao, [AIR 1990 A.P. 20]........"
54. In the present case also, the Residency Scheme does not have a statutory force and is not enforceable in a Court of law. It does not have any sanction or any procedure for dealing with its contravention.
55. This court further relies on the case of Dhananjay Kumar Pandey's decision (supra) in this regard. As already noted, in that case also, there was violation of some procedure in appointment, and it was not considered enough to sustain prosecution against the violators under PC Act. In that case, a husband and wife came to be appointed as Scientists in the National Centre for Antarctic and Ocean Research (NCAOR), an Autonomous Institute under the Ministry of Earth Sciences (MOES). Allegations were that they were appointed in gross violation of the laid down procedures and practices as applicable thereto. Hon'ble Bombay High Court held that even if CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 23 of 30 the whole material collected by the prosecution was accepted as true, no case was made out. It held that making appointment against such procedures might give rise to departmental action but prosecution under PC Act was unsustainable. The said decision of the Hon'ble Bombay High Court was upheld by Hon'ble Supreme Court also.
56. Further, in the cases of Syndicate Bank, G.J. Fernandez, Naveen Jindal and Chandramohanan (supra), it was observed guidelines or executive instructions which are not statutory in character are not "laws" and that executive instructions are not rules which are justiciable.
57. It is thus apparent that the Residency Scheme is not a law. It is merely instructions. In considered view of this court, violation of the Residency Scheme will not render the violator liable to prosecution. The only consequences could be, at the most, that the violator be subjected to some departmental action. The Residency Scheme is only advisory in character. Even the judgments cited by ld. Sr. PP in this regard also support this conclusion. In those cases also, only departmental action was taken against the erring official(s). No criminal prosecution was launched against them. The Jharkhand PSC's case (supra), though is a case related to a criminal case, the facts of that case are entirely different. In that case, candidates had committed forgeries but, in the present case, there is no allegation of any forgery.
58. When the Residency Scheme does not pass the test of being a 'law', the case of the prosecution cannot survive. Infraction of Residency CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 24 of 30 Scheme will not entail criminal prosecution.
59. There is another way of looking at the case. As was held in the case of Dhananjai (supra), making an irregular or illegal appointment is not covered within the four corners of offence as defined u/s 13(1)(d) of the PC Act, and ingredients of the said offence are not fulfilled. Hon'ble Bombay High Court, relying on its earlier decision in another case, noted as under:
"16. In this connection, the Division Bench of this Court by judgment dated 27.11.2014 passed in Criminal Writ Petition No. 58 of 2014 wherein one of us ( F. M. Reis, J ) was a member has observed at paras 4, 5 and 6 thus:
"4. .......................Even otherwise, the ingredients of Section 13(1)(d) of the Act of 1988 are not attracted. The requirements to attract Section 13(1)(d), is that the accused shall by corrupt or illegal means, obtain for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtain for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtain for any person any valuable thing or pecuniary advantage without any public interest. The phrase 'valuable thing' refers to any thing or moveable property, whereas pecuniary advantage refers to monetary benefits. On bare perusal of the complaint, it does not disclose that the petitioner has in any other way for himself or for any other person secured any available thing or pecuniary advantage. The acts allegedly committed by petitioner do not attract provisions of Section 13(1)(d). As such, the FIR registered alleging commission of offence under Section 13(1)(d) against petitioner deserves to be quashed. x x x"
60. It further held in para 22 as under:
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 25 of 30
"22. If at all there were irregularities while selecting the present petitioner or his wife Dr. Anju Pandey to the particular post, the concerned Department can look into the matter and see whether really some concession was given to the present petitioner or his wife at the time of their selection. Even assuming for time being, the accused nos. 1 to 4 have not followed the procedure and they have given some concession to the present petitioner even then such act could give rise only to initiate departmental inquiry but in any way no criminal liability can be fastened upon the accused in absence of a specific allegation in reference to the cheating or corruption. Therefore, the observations in the case of Bhajan Lal (supra) are more appropriately applicable to the facts of the present case. Allowing the subject FIR to continue on the basis of the averments made therein would lead to injustice to the petitioner in the circumstances as we find that prima facie the complaint does not make out any offence under the provisions of Prevention of Corruption Act, 1988 as against the petitioner herein. x x x x"
61. Perusal of the above will show that making wrong appointment against rules and practices is not such an act which is covered u/s 13(1)(d) of the PC Act. The ingredients of the said offence are not satisfied. The Hon'ble Supreme Court had upheld the said decision as well.
62. Considered thus, in the present case also, the ingredients of the offence are also not fulfilled and no case is made out u/s 13(1)(d) r/w 13(2) of the PC Act. The case of the prosecution suffers on this count also.
63. There is yet another dimension of looking at the facts of this case. In "Runu Ghosh vs. CBI", 2011 SCC OnLine Del 5501, Hon'ble Delhi High Court has held that there is no requirement of proof of intent or mens rea for offence u/s 13(1)(d)(iii) of the PC Act. It observed as follows:
"78. In a previous part of this judgment, what constitutes CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 26 of 30 "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State in its myriad functions enters into contracts, of various kinds, involves itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servant‟s decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d) (iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest" is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining" "pecuniary advantage or valuable thing", it is evident that Section 13 (1)(d) (ii) may or may not entail the act being without public interest. This offence- under Section 13 (1) (d) (iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13 (1), Drugs and Cosmetics Act:; Section 7 (1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servant‟s overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1) (d) (iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 27 of 30 of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servant‟s functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken."
64. Hon'ble High Court was deliberating upon the true extent of the offence u/s 13(1)(d)(iii) of the PC Act. As to when a public servant acts without public interest, it observed further as under:
"83. The test this Court has indicated is neither doctrinaire, nor vague; it is rooted in the Indian legal system. A public servant acts without public interest, when his decision or action is so unreasonable that no reasonable man, having regard to the entirety of circumstances, would have so acted; it may also be that while deciding or acting as he does, he may not intend the consequence, which ensues, or is likely to ensue, but would surely have reasonable foresight that it is a likely one, and should be avoided. To put it differently, the public servant acts without public interest, if his action or decision, is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest. The application of this test has to necessarily be based on the facts of each case; the standard however, is objective......"
65. Here, in the present case, it has been shown that one Dr. Kavish Singh had suddenly resigned as he had got another posting at Safdarjung Hospital. Not only he had resigned, but through a subsequent letter, he had also preponed his date of leaving the job. Taking into account the nature of the job of a Sr. Resident which is patient care, the immediate appointment of CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 28 of 30 Dr. Nikunj Aggarwal cannot be termed against public interest.
66. It has to be kept in mind that Dr. Nikunj possessed all the necessary qualifications for such an appointment. It is not that Dr. Mohta compromised on qualification aspect. He had also asked HOD (Ortho) Dr. Anil Aggarwal for assessment of Dr. Nikunj. Only after Dr. Anil Aggarwal found Dr. Nikunj suitable, Dr. Mohta approved his appointment. Dr. Anil Aggarwal is not being prosecuted which means that assessment made by him is being accepted as genuine by the prosecution. Had Dr. Anil Aggarwal not approved Dr. Nikunj, Dr. Mohta would not have appointed him. This conduct of Dr. Mohta is enough to show his bonafides. Only the process adopted was different from that provided under the Residency Scheme. But, then, there is statement of Dr. Sapna Bathla that appointments used to be made in that manner under emergent circumstances. Therefore, the acts of Dr. Anil Mohta cannot be termed against public interest. His decision was reasonable under the circumstances of the case. No case is made under PC Act on this count also.
67. As far as aspect of requisition of services of Dr. Nikunj Aggarwal as OSD to the Health Minister is concerned, there is no material which suggests that it was illegal to do so. Listed witness PW13 Sh. G. Sudhakar has stated in his statement that there was no circular or guidelines for deputing a Senior Resident doctor as OSD and it was routine and general practice to send Sr. Residents as such.
68. The allegations qua attending training at IIM, Ahmedabad are CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 29 of 30 also not worth consideration as nomination for participation of Dr. Nikunj Aggarwal was not done at the behest of Dr. Anup Mohta, or for that matter at behest of Dr. Nikunj Aggarwal. Perusal of notings would rather show that Dr. Mohta had raised objection to reimbursement of the expenses for the said training programme to Dr. Nikunj Aggarwal. This shows that Dr. Mohta was not in any conspiracy with Dr. Aggarwal qua this allegation. Moreover, the expenses so reimbursed to Dr. Aggarwal were fully recovered from him later on.
69. Similarly, the allegations qua nomination for Beijing visit are also without any substance. This nomination also happened without any connivance of Dr. Mohta or Dr. Aggarwal. Rather, it appears to have been done routinely. In any case, the visit never happened.
70. As an end result, it is held that no prima facie case is made out for framing any charge. Both the accused are entitled for discharge, and are hereby discharged from the case. Their bail bonds are cancelled and sureties are discharged.
71. File be consigned to Record Room.
Announced in Open Court
on the 04th day of March, 2021
through Video Conferencing Digitally signed
via Cisco Webex App SANJAY byBANSAL
SANJAY
BANSAL Date: 2021.03.04
12:55:36 +05'30'
(Sanjay Bansal)
Special Judge (PC Act) CBI - 16:
Rouse Avenue District Courts: Delhi.
CBI Case No. 407/2019 CBI Vs. Dr. Anup Mohta & Anr. Page 30 of 30