"ITEM NO.14 COURT NO.2 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 833/2015
(Arising out of impugned final judgment and order dated 16/01/2015 in AN No. 152/2015 passed by the High Court of Judicature at Allahabad, Lucknow Bench)
SANJAY AWASTHI Petitioner(s)
STATE OF UTTAR PRADESH AND ANR. Respondent(s)
CORAM : HON'BLE MR. JUSTICE T.S. THAKUR HON'BLE MR. JUSTICE V. GOPALA GOWDA HON'BLE MRS. JUSTICE R. BANUMATHI
UPON hearing the counsel the Court made the following
O R D E R
S.L.P. (Crl.) Nos. 4664/2015, 4654/2015, 4839/2015, 4892-4894/2015, 4832/2015, 5107/2015, 5274/2015, 3603/2015, 5029/2015, 5031/2015, 5116/2015 and CRLMP No. 10918/2015 in S.L.P.(Crl.) No. 3725/2015:
These matters are de-tagged.
List these matters on 21.07.2015.
IN REST OF THE MATTERS:
As many as 74 different cases have been registered by the Central Bureau of Investigation ("CBI") established under the Delhi Special Police Establishment Act for offences punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and Sections 420, 120-B, 467, 468, 471 and other provisions of the Indian Penal Code ("IPC") against a very large number of Officials working in the U.P. State Health and Family Welfare Departments and against suppliers of drugs and medicines. The cases, it appears, came to be registered pursuant to a direction issued by the High Court of Allahabad in a Public Interest Litigation ("PIL") which brought to fore what is now known as National Rural Health Mission ("NRHM"). It is common ground that NRHM was launched on 12.04.2005 throughout the country to provide accessible, affordable and quality health care to the rural population, specially the vulnerable sections of society and to reduce the infant mortality ratio. The Scheme/Mission was to be implemented by the State Governments.
The prosecution case appears to be that between 2005 and 2011 a large sum of money said to be to the tune of Rs. 11,080.53 crores was allocated by the Government of India for the State of Uttar Pradesh, Ministry of Health and Family Welfare, out of which, a sum of Rs. 9,133.77 crores was in due course released. It is also the case of the prosecution that out of the amount so released a sum of Rs. 8,658.03 crores is said to have been spent on the Mission by the State Government.
Allegations among others of large scale irregularities, misappropriation of funds, fake billing and purchases at exorbitant rates led the High Court of Allahabad to direct an inquiry into the scam by the CBI, which in turn led to the registration of 74 Regular cases and 28 Preliminary inquiries by the CBI branches at SC-II, STF, Delhi, EOU.IV, SCB, Lucknow and Dehradun.Mr. Maninder Singh, learned Additional Solicitor General, appearing for the CBI submitted that investigation in as many as 56 cases, out of the above, has already been completed and charge sheets filed in as many as 46 cases. In 5 other cases, the CBI appears to have submitted closure reports, while sanction for prosecution is awaited in 5 other cases. All the preliminary inquiries are said to have been disposed of leaving just about 18 cases only in which investigation is currently in progress.
With the filing of the charge sheets before the Special Courts concerned, warrants appear to have been issued to the accused named therein for their appearance before the Courts concerned. Apprehending their arrest in connection with the said cases some of the petitioners appear to have approached the High Court of Allahabad in petitions filed under Section 482 of the Code of Criminal Procedure for quashing the charge sheets and the warrants issued for their arrest/production. These petitions were dismissed by the High Court with the direction that the petitioners ought to approach the trial court for redress. Petitioners in Special Leave Petitions Nos. 4229/2015, 4237/2015 and 4239/2015 however appear to have filed regular bail application before the trial court, which were rejected, whereupon the petitioners appear to have approached the High Court, who too concurred with the view taken by the trial court. Aggrieved by the orders passed by the High Court, the petitioners have filed the present special leave petitions for grant of protection against arrest/bail in the cases pending before the Trial Courts concerned.
When these petitions came up before us for preliminary hearing, notices were issued to the respondents and interim protection granted to the petitioners against arrest on the condition that they deposit with the trial court the amount stipulated in the orders passed by this Court. In some of these cases, we directed petitioners to furnish bail bonds to the satisfaction of the trial court besides deposit of the amount mentioned in the orders.
It is not in dispute that the petitioners have deposited the amount directed to be deposited. It is also not in dispute that wherever a direction was issued for the petitioners to furnish bail bonds, the requisite bail bonds have also been furnished by them to the Courts concerned.
Having heard learned counsel for the petitioners and Mr. Maninder Singh, learned Additional Solicitor General appearing for the CBI, we are of the view that these petitions can be disposed of with appropriate directions. It is noteworthy that the CBI had not chosen to arrest any one of the petitioners during the investigation. Investigation into the cases was completed and charge sheets filed without the agency facing any impediment whatsoever. There is in that view no compelling reason for the petitioners to be committed to custody at this stage. That apart the prosecution has cited a large number of witnesses in each charge sheet, which would imply that conclusion of the trial is likely to take time. There is no possibility of the petitioners jumping bail, as most if not all of them are serving doctors in the U.P. State Health and Family Welfare Department. In the circumstances even when the petitioners could have approached the trial court we see no reason to relegate them to that process at this stage which may only prolong their agony and lead to multiplicity of proceedings. In the result, we issue the following directions:
(I) Such of the petitioners as have not already furnished bail bonds to the satisfaction of the trial courts concerned shall do so within a period of two weeks from today in which event the protection against arrest shall continue but only subject to their furnishing such bonds.
(ii) The trial court(s) shall satisfy themselves about the deposit of the amount directed by us, in terms of our Order(s) passed in each one of the cases. In case deposit is not made as directed, the same shall be made within four weeks from the date the trial Court issues a direction to that effect after verification.
(iii) Liberty is reserved to the CBI to move the trial court concerned in case the amount already deposited by the petitioners does not match the amount on a proportionate basis that should be recovered from them having regard to the amount alleged to have been misappropriated or wrongfully paid/received. Should the petitioner(s) fail to deposit any such further amount directed by the trial court, the bail order granted in his/her favour shall stand cancelled without any further reference to this Court.
(iv) The trial court(s) shall be free to direct deposit of Passports by the accused-persons in such of the cases at it may consider just and proper.
(v) The petitioners shall not tamper with the evidence in any manner whatsoever and if they do so, the Court shall be free to cancel the bail granted to the accused concerned.
(vi) The amount deposited by the petitioners shall be remitted by the trial court(s) to the State Government, Department of Health and Family Welfare, for utilisation in the ongoing NRHM Scheme.
(vii) The trial court(s) shall endeavour to expedite the trial and shall be free to pass appropriate order(s) against the petitioners including an order withdrawing the concession of bail granted to them or any one of them, if the accused do not cooperate or otherwise resort to dilatory tactics.
The special leave petitions are disposed of with the above directions. We make it clear that the amount of deposit made by the petitioners in terms of the court's order shall have no bearing on the legitimacy and/or legality of the prosecution launched by the CBI.
(S. K. RAKHEJA) (VEENA KHERA)
COURT MASTER COURT MASTER"
According to the aforesaid judgment, the appellants had approached the High Court by filing a Section 482 Cr.P.C. Application for quashing the chargesheet and warrants issued, but the same was dismissed by the High Court, whereafter the above mentioned special leave petitions appear to have been filed. The Apex Court accordingly taking notice of such facts appears to have issued the directions granting relief of bail to the appellants including the petitioner.
As against Column No. 5 of the list of dates and events in the present petition, the petitioners' counsel have stated that since the legal questions regarding validity of FIR and power to investigate in contravention of the guidelines of the CBI Manual, had not been raised before the Apex Court, therefore, the present writ petition is being filed.
We are clearly of the opinion that it was open to the petitioners to have raised any such issues raised herein either in a Section 482 Cr.P.C. Application which according to the Apex Court judgment had already been done whereafter Sanjay Awasthi, the petitioner no. 1 approached the Apex Court and the order above quoted was passed. Thus such additional issues that are being canvassed could and ought to have been raised which were not raised according to the petitioner himself.
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