(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. The parents of 23 different minor children who used to get treatment for severe Thalassemia for the last several years in the Civil Hospital of the city of Junagadh have come up with the present writ-application thereby praying for issue of writ of mandamus or other appropriate writ upon the respondent no.2 to appoint an independent agency/officer higher in rank than the respondent no. 3 to investigate the complaints of the petitioners in accordance with Chapter XII of the Code of Criminal Procedure and to file report before this court.
2. Initially, the application was moved before a learned Single Judge and on 30th November 2011, the said learned Single Judge, after taking into consideration the fact that on the basis of the selfsame facts indicated in this application, a separate Writ Petition being Writ Petition (PIL) No. 151 of 2011 had been filed, directed the Registry to place the matter before us. On 15th December 2011, we directed filing of affidavit-in-reply by December 22, 2011 with a direction that the matter should appear on that date.
3. On 22nd December 2011 when the matter came up for further hearing, it appeared to this Bench that in the two affidavits-in-reply, one, on behalf of respondent No.3 and the other, on behalf of respondent No.5, those two respondents had not dealt with the allegations contained in the petition parawise, but had filed a short affidavit thereby trying to convince this Bench that the allegations contained in the applications were not prima-facie correct and that the children mentioned in the writ-application were infected with HIV+ not due to the blood transfusion in Government Hospital, but in some other hospitals.
4. As this Court was not satisfied with the explanation given in these affidavits, we directed those two respondents to file detailed affidavit dealing with the petition parawise, and at the same time, a further direction was given that they should disclose the documents which formed the basis of their arriving at the conclusion that those children were infected with HIV+ due to blood transfusion through other medical centers than Government Hospital. We further directed the respondent No.4 of this application to immediately register an FIR on the basis of complaint lodged by the parents of the infected children and thereafter, to proceed with the investigation in accordance with Chapter XII of the Criminal Procedure Code.
5. On 12th January 2012, when the matter came up for further hearing, it appeared that inspite of specific direction given on December 22, 2011, no detailed affidavit had been given by either the respondent no.3 or the respondent no.5 and instead of that, the person against whom the FIR had been lodged pursuant to our order had filed an affidavit though this Bench did not pass any direction to file such affidavit by the said person.
6. As the FIR had been lodged pursuant to our order against Dr. Govind Tirumalachar Dalayu, Chief District Medical Officer-cum-Civil Surgeon of General Hospital, Junagadh, this Bench decided not to look into any affidavit given by such person.
7. On that date, Mr. Kamal B. Trivedi, learned Advocate General appearing on behalf of the State respondent, submitted that the Principal Secretary [Public Health], Health and Family Welfare Department, Sachivalaya, Gandhinagar, would comply with our direction by filing a detailed affidavit and a separate affidavit would also be filed by the Investigating Officer by January 19, 2012.
8. Thereafter, on 14th March 2012, the petitioner filed Misc. Criminal Application No. 3422 of 2012 thereby praying for addition of the Gujarat State Council for Blood Transfusion and Central Bureau of Investigation as parties to this application. Certain prayer for amendment was also made in the said application.
9. In the meantime, on 16th February 2012 when the matter came up along with writ-petition [PIL] No. 151 of 2011, the learned Advocate General, submitted before this Bench that the investigation in the matter would be carried on by an Officer of the rank of Deputy Superintendent/Assistant Superintendent of Police under the direct supervision of an officer of the rank of DIG and above.
10. In view of such statement made by the learned Advocate General, this Bench directed the State to proceed with the investigation in that way under the direct supervision of the rank of an Officer of DIG or above, through that of a Deputy Superintendent/Assistant Superintendent of Police.
11. On 29th March 2012, a preliminary report, with respect to the investigation indicated in the earlier order along with some other documents, was filed before this Court. This Court directed that the matter should appear on 2nd April 2012 as specifically fixed at 3.30 PM and in the meantime, the vernacular portion of the documents annexed to the report were directed to be translated into English, with a further direction upon the concerned investigating officer to be present in the court.
12. On 2nd April 2012, after going through the report submitted by the Investigating Officer, who is an IPS Officer, we directed her to expedite the investigation, and particularly, Item Nos.4 and 5 indicated in the last page i.e. Page no.6 of the report should be concluded within a period of fortnight from that day. As suggested by the Investigating Officer, we fixed the matter on the next day at 2:30 p.m. for the purpose of appointment of an expert in the field of Pathology to assist her in the investigation with direction upon the parties to recommend the name of any such person who is renowned in that field.
13. On the next day, i.e. on 3rd April 2012, all the learned counsel suggested the name of Dr. M.D. Gajjar, Head, Department of Immuno Hematology and Blood Transfusion [IHBT], B.J. Medical College, Ahmedabad and we, accordingly, appointed Dr. M.D. Gajjar to assist the Investigating Officer in the matter.
14. In the meantime, Ms. Shobha P Bhutda, the investigating officer having been promoted as Superintendent of Police of the District Amreli on April 13, 2012, she joined her transferred post immediately leaving the investigation in the hand of a different officer without complying with our earlier direction. In view of such fact, we directed Ms. Shobha P Bhutda to be personally present in the Court on April 26, 2012, fixing the matter as item No.1.
15. On the next date fixed, we recorded that although a specific direction was given to conclude the investigation in respect of item Nos. 4 and 5 indicated in the last page, i.e. page No.6 of the report earlier filed by her within a period of fortnight from that date, she could not do the same. On that day, we further directed that after taking into consideration the enormity of the crime with which this Court is concerned with in this litigation, in our view, such type of investigation should not be handled by too many investigating officers and when the present investigating officer was in charge of the investigation for about one month and a half and at the same time, on her request, we had appointed an expert for assisting her, it was a fit case, where the investigation should be concluded by the selfsame investigating officer.
16. Mr.
Jani, the learned Government Pleader appearing on behalf of the State, on that day submitted that for avoiding the technical objection as regards territorial jurisdiction of the investigating officer, necessary notification would be issued by the State of Gujarat in terms of section 36 of the Code of Criminal Procedure, permitting Ms. Shobha P. Bhutada to leave her Head Quarters at Amreli for the purpose of concluding the investigation of this matter, and during her absence, the concerned Deputy Superintendent of Police of Amreli will be in charge of that District under her.
17. We, accordingly, directed the State Government to issue such notification positively by the next date so that the said investigating officer could continue with the investigation from the next day.
18. On that date, we also extended the time for investigation with respect to item Nos. 4 and 5 indicated in the last page, i.e. page No.6 of her report within a period of 10 days from the date of issue of the aforesaid notification.
19. We also directed the investigating officer to complete the entire investigation as expeditiously as possible, and further observed that if she faced any difficulty in the matter of progress of such investigation in any manner, she was free to mention the matter before this Court after giving notice to the learned counsel for the parties.
20. The investigating officer was also directed to take immediate steps to take possession of the digital print of Elisa Test along with details of batch number and Elisa kit number etc, as pointed out in point No.2 of clause G of paragraph No. 7 of Misc. Criminal Application No. 3422 of 2012.
21. On 10th May 2012, when the matter came up for hearing, a further report was submitted by Ms. Shobha P Bhutda. After going through the said report, we were dissatisfied with the way the investigation proceeded and accordingly, issued a show cause notice upon the State-respondents as to why investigation should not be handed over to Central Bureau of Investigation. We directed the State respondent to show such cause by way of an affidavit by June 14, 2012. Until further orders, Ms Shobha P Bhutada was directed to keep all the records relating to investigation so far done in her personal safe custody with further direction that she would be in charge of all those documents until further orders. She was also directed not to make any further investigation until we passed further order.
22. Pursuant to such direction given by us, the State respondent has shown cause by filing affidavit and a reply to the same has been given by the writ-petitioners. The respondent No.2 has also filed a separate affidavit in the matter.
23. The case made out by the writ-petitioners in the application may be summed up thus:
23.1 The minor children of the petitioners used to get treatment for severe Thalassemia in the Civil Hospital of the city of Junagadh since many years.
23.2 The Civil Hospital is established and governed by the State Government and the Civil Surgeon is the Head of the Civil Hospital and being the Head of the Hospital, the Civil Surgeon was monitoring and supervising the entire activities of the Hospital.
23.3 In the said Civil Hospital, Pathology Laboratory was also functioning wherein skilled and expert staff were working. The said Laboratory used to make appropriate Test of Blood, and thereafter, the said blood was being supplied to the patients as and when required.
23.4 Due to gross negligence and in violation of regulatory requirement of blood transfusion and/or its components including blood products, infected blood of HIV Positive was being supplied to the child/ patients by the responsible doctors and staff of the hospital and the blood bank, without there being proper care and caution, knowing fully well that the said blood was to be used during the course of treatment of small and innocent children suffering from the disease like Thalassemia.
23.5 On 24th September 2011, 27th September 2011, 4th October 2011 and 11th October 2011, the petitioners filed different written complaints to the "B" Division Police Station, Junagadh for the cognizable offence punishable under sections 308, 328, 338, 34 and 114 of the Indian Penal Code after it was detected that due to negligence and/or irresponsible activity on the part of concerned Doctors, staff and blood bank, the children of the petitioners were found to be infected with HIV positive.
23.6 After filing of the above referred complaints before the respondent no.4, he sat tight over the complaint, and although the complaint disclosed cognizable offences, which required immediate action in terms of provisions laid down under Chapter XII of the Code of Criminal Procedure, the Respondent no. 4 had failed to discharge his duty by not initiating any action based on those complaints without cogent reasons.
23.7 Subsequently, the petitioners gave written application to the respondent no.3 who is superior officer on 21st October 2011 as required under section 154 (3) of the Code of Criminal Procedure for prompt action against the actual and real offenders.
23.8 The Respondent No.3 also failed to perform his statutory duty envisaged under the provisions of the Code for one month and omitted to initiate the investigation into the offence alleged in the multiple complaints of the petitioners and as such, the writ-application was filed by the petitioners for the reliefs earlier indicated.
24. The State-respondents, in their affidavits denied the allegations made in the writ-application and came up with a contention that the children mentioned in the writ-application were infected with HIV+ not due to the blood transfusion in Government Hospital, but in view of blood transfusion in some other hospitals.
25. From the above facts, it is clear that although the incident was discovered in the month of September 2011 and the complaints were lodged before the police for taking appropriate step, the State-respondents did not care to treat the complaints as FIR and only after this Court entertained the matter and passed a direction for lodging the FIR that the FIR was lodged.
26. We have already pointed out from the affidavit filed by the respondents that the State respondents were denying their liability and tried to make out a case that the victims were infected due to blood transfusion in some other hospitals than the Government hospitals.
27. Ultimately, however, the learned Advocate General realized the seriousness of the matter and proposed that the investigation in the matter will be continued by the Officer of the rank of Deputy Superintendent/Assistant Superintendent of Police under the direct supervision of an officer of the rank of DIG or above.
28. After hearing the learned counsel for the parties and after going through the materials on record we find that the scope of the writ-application is very limited. The question involved in the writ-application is whether it had been established from the materials on record that there was genuine apprehension in the mind of the writ-petitioners that there might not be fair investigation at the instance of the State investigating agency in respect of the alleged crime involving high government officials of the State Government and an MLA of a ruling political party of this State, justifying investigation by the CBI.
29. In this litigation, there is no scope of entering into any question as to whether the alleged offence had been at all committed. There is also no scope of any investigation in this writ-application as to whether the 23 children were affected with HIV+ really for the negligence or inaction of the persons or the Institution against whom allegations have been levelled.
30. It is now settled law that if a citizen, who is a de facto complainant in a criminal case alleging commission of cognizable offence affecting violation of his legal or fundamental rights against high government official or influential persons, prays before a High Court for a direction of investigation of the said alleged offence by the CBI, such prayer should not be granted on mere asking.
31. The Constitutional Bench of the Apex Court in a recent case of the State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal reported in [2010] 6 SCC 571, has made the following observations pointing out the situations where the prayer for investigation by the CBI should be allowed:
"In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such powers should be exercised, but time and again it has been reiterated that such an order is not to be passed as a matter of routine order merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.
Otherwise the CBI would be flooded with large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
(Emphasis supplied).
32. In the above decision, it was also pointed out that the same court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. vs. Sahngoo Ram Arya & Anr. (2002 5 SCC 521, had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency.
33. Bearing in mind the aforesaid observations, we now propose to consider whether in the facts of the present case, from the materials on record it has been prima facie established that it is a fit case for allowing the prayer of the writ-petitioner made in the Miscellaneous Application for investigation by CBI or any neutral agency.
34. After going through the averments made in the application, we find that on September 24, 2011 a complaint was lodged by Ravjibhai Ramabhai Sondarva, one of the petitioners, before the Police Inspector, "B" Division Police Station, Junagadh, under Sections 308, 328, 338, 34 and 114 of Indian Penal Code, thereby specifically alleging that his son, named, Rohit, aged about 10 years, was suffering from Thalassemia and was treated for the last eight years in Govt. Hospital, Junagadh. According to the said complaint, in Thalassemia patients, as the level of blood cells and necessary elements reduce, they are frequently required blood transfusion and Rohit was given blood transfusion once in every month since last eight years and at an interval of 20 days since last three years in a Government Hospital. According to the said complainant, as his son was not keeping well, he was taken to a doctor of Junagadh for "barod' tumor, who recommended for different blood tests and after the blood tests were being done at Junagadh, Rohit was found to be infected with HIV positive. The said doctor had, therefore, advised the complainant not to go for operation of "barod" tumor. Thereafter, the complainant again went to the Govt. Hospital, Junagadh and gave blood sample for testing and after examination of blood samples, it was replied that Rohit was being infected with HIV positive. In paragraph 4 of the complaint, it is specifically stated that treatment of Rohit was being given at Govt. Hospital, Junagadh since last eight years and he had been given regular blood transfusion at the said hospital. It is further asserted that except that hospital, no treatment or no blood transfusion had been given to Rohit at any other place. The complainant had further alleged that the Govt. Hospital at Junagadh did not take enough precaution before blood transfusion to see that it was not infected by a disease and more particularly, deadly HIV disease. No laboratory test was being done before the blood transfusion and because of irresponsible behaviour and carelessness, Rohit had been infected with such disease. In paragraph 6 of the complaint, it is further alleged that all the needy patients in the Govt. Hospital, Junagadh are being provided with necessary blood from an Institution, named Sarvodaya Blood Bank. According to the complaint, as Thalassemia patients are frequently required blood transfusion, they are given card from the said Institution. Blood given by this Institution, according to the complaint, was transfused in Rohit and it was the duty of the responsible person of Sarvodaya Blood Bank to see that no blood of any person infected with a disease was given to anyone. According to the said complaint, it has come to the knowledge of the complainant that Sarvodaya Blood Bank has no license from the State Government to run the said Blood Bank even though since last many years they were running the Blood Bank and were collecting lakhs of rupees as fund. All these activities, according to the complaint, are being carried on under the active support of the Civil Surgeon. The complainant, therefore, prayed for investigation.
35. There is no dispute that no action was taken on the basis of the said complaint and ultimately, first a Public Interest Litigation was filed for the appropriate relief being WP [PIL] No. 151 of 2011 whereupon, this Court issued notice upon the respondents. Subsequently, the present application was filed before a learned Single Judge and according to the direction of the learned Single Judge, the matter was placed before us.
36. As indicated earlier, on the basis of our order dated December 22, 2011, long after three months from the lodging of the complaint, the formal FIR was lodged but in the FIR the allegations of getting lakhs of rupees as fund at the instance of Sarvodaya Blood Bank was not incorporated. It further appears from the affidavit given by the petitioner against the answer to the show cause given by the State respondent that in the official website of the Gujarat State Council for Blood Transfusion [GSCBT] of which Principal Secretary, Health [Public Health], Government of Gujarat is the Chairman, the name of Sarvodaya Blood Bank appeared as one of the recognized blood banks in the State of Gujarat and its address was given as that of Junagadh Civil Hospital. Curiously, one day after passing of direction by this Court for registering FIR, all of a sudden, the name of Sarvodaya Blood Bank disappeared from the said website.
37. There is no dispute that Sarvodaya Blood Bank has no license for running a blood bank and inspite of that, in the official website of GSCBT, Sarvodaya Blood Bank was shown as a recognized blood bank till we passed direction for lodging FIR.
38. It appears from the record that Sarvodaya Blood Bank is run by local M.L.A. of Junagadh belonging to the ruling political party as Chairman thereof.
39. We were surprised from the report submitted by the present Investigating Officer, wherein, the statement of the Chairman of the said Sarvodaya Blood Bank was annexed not in the form of a statement under Section 161 of the Code of Criminal Procedure ["Code" for short], but on the letterhead of Sarvodaya Blood Bank, Junagadh dated January 11, 2012, asserting that it had no role to play in the matter of actual transfusion of blood but it merely used to motivate people to donate blood.
40. In the report submitted by the Investigating Officer before us on May 10, 2012, Ms. Shobha Bhutada indicated that she had taken statement under Section 161 of the Code from the President of Sarvodaya Blood Bank but merely annexed the statement written in the letterhead of the said Institution in stead of annexing the actual statement under Section 161 of the Code.
41. We, at the time of hearing, when asked the Investigating Officer whether any separate statement was taken from the said President of Sarvodaya Blood Bank, she disclosed that such statement was taken on May 1, 2012. A translated version of such statement has also been placed before us. We are surprised to find that the President of Sarvodaya Blood Bank against whom such serious allegations were made of transfusing blood without taking reasonable precaution and of running of the blood bank without having valid license and even of carrying on the business of such blood bank from the Govt. Hospital premises without having any written permission, and figuring in the official website of the GSCBT as recognized blood bank, was not at all examined even in course of next four months after lodging of FIR. It appears that the Investigating Officer was quite alive to the position that the said organization had audited its expenditures and income by auditor but did not care to seize vouchers in respect of its income and expenditures upon which the audit report is based. In her report on point no.4, she made following observations:
"During the investigation about the legal basis for stationing of Sarvodaya Blood Bank in the campus of Junagadh Civil Hospital, it is revealed from the statement of Mahendra Mashru of Sarvodaya Blood Bank that there is no written permission given to Sarvodaya Blood Bank for the same. The oral permission of the then R.M.O. Mr. H.A. Vishnav was received in 1982. The R.M.O. Mr. H.A. Vaishnav is no more and after verifying hospital records it is found out that Mr. H.A. Vaishnav was working as R.M.O. in Civil Hospital, Junagadh in 1982. Mr. K.C. Thakar was Civil Surgeon then and he is also no more. So, we could not record statements of both the doctors. As per the statement recorded of Mr.Mahendra Mashru, Sarvodaya Blood Bank is only Motivator of blood donation and plays the role of donor provider when some particular blood group is not available in the blood bank and patient needs the same. He also mentions the use of landline phone in the civil hospital's campus for the same purpose.
I would humbly draw the kind attention of the Hon'ble High Court that in the summons issued under Section 160 of Cr.PC, all the information regarding Blood Donation Camps organized by Sarvodaya Blood Bank was asked to be produced but the trust has maintained no such records and could not provide any information or documents apart from recent registers containing Donor's information and audit reports for three years 2008-09, 2009-10 and 2010-11.
On recording the statement of Civil Surgeon, Junagadh on 1st May 2012, he revealed that the said landline telephone, cupboard and all other movable assets of Sarvodaya Blood Bank have been removed from Civil Hospital since 27th April 2012 based on oral instructions of Civil Surgeon.
The new address of Sarvodaya Blood Bank as advertised in local newspapers for public knowledge is Sanvad Complex, Azad Chowk, Junagadh and it is operational there since 1st May, 2012.
The information regarding blood donation camps organized outside hospital is received from Civil Hospital, Junagadh, which is available only since 2008."
42. We are shocked to find that inspite of the above observations, the Investigating Officer did not take any further steps to stop further activities of Sarvodaya Blood Bank at the new place of activity, namely, Sanvad Complex, Azad Chowk, Junagadh nor did she endeavour to get hold of the vouchers of expenditure and income of such organization. It appears that the said Sarvodaya had opened bank account by giving the address of the Junagadh Civil Hospital. We further find that in the first page of the statement under Section 161 of the Code, the alleged glorious conduct of the said person when he was schoolboy in the year 1968 was narrated in detail. We fail to appreciate the relevance of those statements in connection with the alleged offence. By those statements in the first page, the maker was projected as a noble soul from the very childhood. We fail to appreciate what were the questions put to him that gave opportunity to the person concerned to describe his alleged past glorious activities some forty years ago when he was a school student.
43. We further find that Sarvodaya Blood Bank definitely had tremendous influence over the government officials in Junagadh Hospital and also in GSCBT, as a result, without having any valid license, it was shown in the official website of the said Council that Sarvodaya Blood Bank is one of the recognized blood banks and that it carried its activities from Junagadh Civil Hospital. The Investigating Officer, even after recording her observation that the telephone, cupboard and all movable assets of Sarvodaya Blood Bank had been removed from the Civil Hospital, Junagadh on April 27, 2012 based on oral instruction of Civil Surgeon, did not care to stop further activities of the said Blood Bank from Junagadh itself. For gross inaction on her part, Sarvodaya Blood Bank could remove all papers relevant for investigation from the Civil Hospital Building at Junagadh. Thus, it appears that a Government Hospital not only permitted the Sarvodaya to use the Telephone of the Hospital but also permitted to install its own telephone at the Hospital Premises which had been removed as disclosed in the report along with cupboard and other movables from the Hospital after the start of investigation.
44. We have further noticed that inspite of the fact that Ms. Shobha Bhutada was acting as Investigating Officer in view of the order passed by this Court, handed over papers of the investigation to the Superintendent of Police of Junagadh the moment she got her order of promotion without complying with our direction to complete the investigation and report on two very important points by specific date. She did not think it proper to even to mention the matter before this court to relieve her of the said duty. We have already pointed out that in view of the enormity of the crime, we decided that this type of investigation should not be handled by too many Investigating Officers and for that reason, inspite of the fact that she was eager to get rid of the investigation against influential persons involved, we directed her to continue with investigation with a specific direction that in case of any difficulty, she would be free to mention the matter before us.
45. Subsequently, on May 10, 2012, when she submitted her report, a part of which is quoted above, we had no hesitation that in view of the fact that the allegations contained in the FIR are directed against high govt. officials and a local M.L.A. of the ruling political party who had allegedly illegally occupied office space in the Govt. Hospital and even allegedly invaded the official website of the GSCBT as a licensed Blood Bank, for instilling confidence of public in the investigation and for bringing to book the real culprits who are responsible for the above episode, the investigation of the case should not be continued in the hands of any State Agency but should be done by Central Bureau of Investigation.
46. We are quite conscious that this type of a prayer for investigation by impartial Agency should not be granted on mere asking but having regard to the fact that even after publication of news of infection of 23 young children with HIV positive during the treatment in Govt. Hospital, the police authority in the State was hesitant in even lodging FIR and after the FIR was lodged pursuant to the order passed by this Court, in course of five months, no effective steps have been taken for finding out the real culprit, it is a fit case when we should direct investigation by CBI. In the case before us, even the Principal Secretary of Health [Public Health], Government of Gujarat has affirmed affidavit supporting the defence of Sarvodaya Blood Bank that it had no role as a blood bank but was merely a "motivator for donation of blood". However, no plausible explanation has been given as to why the name of Sarvodaya Blood Bank was shown in the list of licensed blood banks in the official website of GSCBT of which Principal Secretary, Health [Public Health] was Chair-person and following persons were members:
[1] Commissioner of Health, Medical Services and Medical Education [2] Project Director, Gujarat State Aids Control Society [3] Secretary, Expenditure, Finance Department [4] Director, Gujarat State Council of Blood Transfusion [5] Commissioner, Food & Drug Control Administration [6] State Representative of Indian Red Cross, Gujarat Branch nominated by President Red Cross [7] Medical Superintendent of Govt. Medical Colleges
47. All of them allowed Sarvodaya Blood Bank to pose itself as a licensed blood bank in the official website of GSCBT. People, in view of such wrong information, bona fide believed that Sarvodaya Blood Bank was a licensed one.
48. In the facts of the above case, we are of the view that the conditions laid down by the Supreme Court in the case of State of West Bengal and others v. Committee for Protection of Democratic Rights,West Bengal and others, reported in [2010] 6 SCC 571 quoted earlier have been fulfilled.
49. In our view, the present case is an exceptional one where in the history of this country, at no point of time in the past, 23 innocent children have been alleged to be infected with HIV positive for the inaction or negligence on the part of a single government hospital and in such extraordinary circumstances, we are of the opinion, we should exercise our power under Article 226 of the Constitution by directing investigation by CBI to provide credibility and instill confidence in investigations and for doing complete justice and enforcing the fundamental rights of those 23 children, two of whom have admittedly died in the meantime. In this case, in spite of lodging complaint before the officer in charge of the local police station and further complaint before the Superintendent of the District, no FIR was lodged and only after the order passed by this court on December 22, 2011 that FIR was lodged and that too, not incorporating the allegation of passing of lakhs of rupees against the Institute in question made in the complaint.
50. Although Mr. Jani, the learned Government Pleader appearing on behalf of the State respondent drew our attention to the last sentence of paragraph 70 of the judgment of the Supreme Court in the case of State of West Bengal [supra] quoted above contending that this case would unnecessarily burden the CBI, we are not at all impressed by such submission. For protecting the human rights of the 23 innocent children two of whom have already died, we propose to pass necessary direction to give priority to the investigation of this case. Mr.Jani also tried to impress upon us that most of the documents being in Gujarati, it will be difficult for the CBI to investigate such FIR. We are also not impressed by such contention. If CBI after taking over the investigation finds any difficulty regarding language, we will definitely pass appropriate order for removing the difficulty in lawful way for the purpose of finding out the real culprit; otherwise, there will be no fair investigation and in future also, other innocent persons will be the victims of negligence.
51. We, therefore, dispose of the miscellaneous application by directing the CBI to take charge of the investigation immediately and to expeditiously conclude the same after making necessary amendment of the FIR as two of the Children have died in the meantime. The existing Investigating Officer is directed to handover all the papers relating to investigations so far done by her to the CBI.
52. We make it clear that the observations made in this judgment are all for the purpose of showing the reason for the necessity of handing over investigation to the CBI. We are quite conscious that the allegations in the FIR are at the level of investigation and thus, while making investigation, the CBI would not be influenced by any of our observations, which merely pointed out instances of inappropriate investigation culminating in passing the present order.
53. We, however, keep the public interest litigation pending for passing appropriate direction if the CBI requires any such direction. We, accordingly formally make CBI a party to this PIL. Let this order be immediately communicated to the CBI at the address given in the Miscellaneous Application filed by the writ-petitioner. The CBI is at liberty to seek for any direction in connection with the investigation if it so requires. Let the matter appear on 26th July 2012.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]