Court No. - 1
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12670 of 2018 Applicant :- Dr. Rajeev Kumar Misra Opposite Party :- State Of U.P.
Counsel for Applicant :- Padmaker Pandey,Lav Srivastava,Shri V.P. Srivastava, Senior Advocate Counsel for Opposite Party :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Padmakar Pandey, learned counsel for the applicant, Sri Vimlendu Tripathi, learned A.G.A. appearing for the State and perused the record.
2. This application has been moved by the applicant seeking bail in Case Crime No.428 of 2017 under sections 308, 409, 120B IPC and Section 7/13 of Prevention of Corruption Act, Police Station Gulariha, District Gorakhpur during pendency of trial in court below.
3. As per F.I.R. which is based on media report published in newspapers that some children died due to shortage of liquid oxygen at B.R.D.Medical College, which was to be supplied by M/s Pushpa Sales Private Ltd. But that Company did not discharge its liabilities in accordance with law which falls in the category of criminal breach of trust. On 3.8.2017, the officials of the B.R.D. Medical College had apprised M/s Pushpa Sales that liquid oxygen was going to be exhausted. Despite that due to the lack of supply of the said liquid oxygen there could be possibility of occurring of death, its supply was withheld. Although the Doctors had made alternative arrangement of oxygen/jumbo cylinders for saving the life of the patients who were admitted. Therefore, the act of the said Company falls in the category of an offence of causing death not amounting to murder. In the financial year 2017-18, a total of Rs. 454 lacs were disbursed to the Medical College out of which 63.65 lacs could have been paid M/s Pushpa Sales in the month of April itself, but despite repeated request by the said Company to make the payment, the employees of the medical college, namely, Udai Pratap Sharma, Junior Assistant, Sanjay Kumar Tripathi, Assistant Clerk Accounts, Sri Sudhir Kumar Pandey, in collusion with Principal Dr. Rajeev Kumar Mishra (the applicant herein) did not paid the bills deliberately because of non-fulfillment of illegal gratification. The Principal B.R.D.Medical College despite having budget in the year 2016-17 did not make the payment and got an amount of Rs. 250 lacs lapsed. Similary in the month of August, despite there being sufficient budget and there being shortage of supply of liquid oxygen held up the payment only for non-fulfillment of illegal gratification. He knew very well because of shortage of said liquid oxygen, the life of the patients could be in danger. Despite that without bringing this fact in the knowledge of higher authorities, he went away from the Headquarters on 10.8.2017. When this was being informed through various newspapers that the patients were dying he deliberately went away from the hospital which shows that his act was incriminating under criminal conspiracy. Dr. Satish, H.O.D. Anesthesia/Incharge Oxygen has also left the Headquarters without permission on 11.8.2017 which generated adverse circumstances. When this fact came into his knowledge that there was dearth of supply of liquid oxygen which could endanger the life of patients, he did not discharge his duties by bringing this fact to the higher authorities at the right juncture. Dr. Kafil Khan, Incharge Nodal 100 Bed AES Ward also did not bring the shortage of liquid oxygen in the knowledge of senior officers and ignored his official duties.
4. The learned counsel for the applicant argued that the death of the children in BRD Medical College, Gorakhpur was not due to shortage of liquid oxygen but on account of various other ailments which they were suffering. The supply of the liquid oxygen got stopped for the time being because of delay in obtaining the necessary funds from the State Government which has come in the enquiry report dated 18.8.2017. The applicant being Principal of the Medical College had given detailed report to the Director General, Medical Education, U.P. which was forwarded to the State Government. In the said report it was concluded that the applicant had given reply based on the facts evidence and there was no fault on his part. The allegation that sufficient budget was available but still the payment was not made to M/s. Pushpa Sales Pvt. Ltd. as they were not ready to pay commission, is absolutely false allegation. In fact the financial year starts from 1st April to 31st March. Budget for the financial year 2016-17 with respect to items mentioned at serial number 1 was sent on 30.3.2017 which was actually received on 31.3.2017 at 1.50 P.M. through e-mail. Another budget which was for the item mentioned at serial number 2 was sent on 31.3.2017 which was received at 5.30 p.m. through e-mail. This budget lapsed which were received at various point of time on 31.3.2017, therefore, enquiry was ordered by the applicant as to why the said budget could not be utilized by appointing Dr. Gyan Chandra Maurya and Dr. Raj Kishore as Enquiry Officers. In the said enquiry, it revealed that budget was sent on 30.3.2017 and was received on 31.3.2017 at 1.50 p.m. by Sanjai Kumar Tripathi through various bills by a wrong token number. Because of wrong token number, budget of Rs.22,74,882/- lapsed. Another budget for 14 bills, because of non-availability of token upto 8.00 p.m., could not be uploaded due to which Rs.2,34,19,396/- could not be cleared. Another amount relating to three bills had not been sent to Treasury by concerned official namely Sanjai Kumar Tripathi and token could not be received by Treasury, hence the amount of Rs.1,17,50,731/- had lapsed. Other amounts were also given to Sudhir Kumar Pandey for being uploaded. As per enquiry report, bill of Rs.19,33,749/- were to be uploaded by Sudhir Kumar Pandey but the same could not be uploaded upto 12.00 p.m. hence budget of the said amount lapsed. Likewise, bills at serial number 2, 3, 4, 5, 6, 8, 9, 10, 15 and 25 were not properly uploaded and photocopies have not been given to the concerned authorities, though various messages were sent to Sudhir Kumar Pandey on his mobile phone but he did not reply, as a result of which, the budget had lapsed. Similarly token of bill at serial no. 7 could not be received upto 8.00 p.m. because of which they could not be uploaded and it resulted in an amount of Rs.8,28,469/- being lapsed. In the same manner, the bills at serial no. 22, 23, and 24, though tokens were received but the person who was responsible for uploading the budget, instead of writing “N” had uploaded as “yes” because of which an amount of Rs.1,53,16,522/- lapsed. In the same manner, bills at serial no.26, 27, 28, 29, 30, 32, 36, 37 and 40 were also not sent to Treasury and token could not be received which resulted in an amount of Rs.55,58,014/- being lapsed. Similarly, bills at serial no. 34, 35 and 38 were not uploaded as they were not approved by Drawing Disbursing Officer O.N. Pandey and budget of Rs.39,85,754/- lapsed. Similarly, bill at serial no. 39 could not uploaded because of fault of uploader and the budget of Rs.1,93,344/- lapsed.
5. It is next contended that some budget was received on 21.4.2017 but there was specific direction of Director General Medical, Education, U.P. that this money which was being sent for the financial year 2017-18, hence the same was required to be utilized in the said financial year only and that no payment would be made out of this amount of any bill of the previous financial year. It is further urged that the applicant had appointed Sri O.N. Pandey as DDO vide order dated 4.3.2016. Likewise, the Principal of the College used to appoint some other person as DDO which is evident from the order passed by the Principal of the College and that the DDO is authorized to make all the payments without consent or signature of the Principal. Further it is submitted that the allegation that no payment was made to M/s. Pushpa Sales Pvt. Ltd. in the financial year 2017-18 was absolutely false because it was being paid regularly as and when budget was made available which is quite evident from the payment chart (copy annexed). It is further urged that multiple reminders demanding budget were sent to the Director, Medical Education so that purchase of medicines and chemicals which includes oxygen could be purchased, in response to which some money was released by Government on 5.8.2017 which was received through e-mail on 8.8.2017 and the hard copy was received on 9.8.2017 after which tokens were released and payment was made on 11.8.2017. As regards supply of oxygen, Dr. Satish Kumar HOD of Anesthesia Department was appointed as Incharge Officer vide order dated 14.5.2016. Further, it is mentioned that M/s. Pushpa Sales had sent legal notice on 30.7.2017 which was received in applicant’s college on 2.8.2017 in which it was stated that there were certain payments due and if they were not cleared then supply of oxygen would be stopped. Though, by the said letter M/s. Pushpa Pvt. Ltd. had given ultimatum of 15 days within which to make payment, failing which supply was to be stopped, but supply was stopped on 4.8.2018 much before 15 days time. It is further urged that as regards allegation that the applicant left the institution at the relevant time, the same is absolutely false and baseless. By letter dated 26.7.2017 sent by Director General Health, Education and Training, U.P. he was nominated as expert for establishment of State of the Art Diagnostic Lab at AIMS, Rishikesh, Uttrakhand and was directed to participate in the same. Before leaving B.R.D. Medical College, he had given charge to Dr. Ram Kumar Jaiswal, HOD Eye Department and Dr. Shaila Mitra, HOD Pathology Department, thereafter, he proceeded to AIMS. The Technical Staff namely Krishna Kumar had informed the Head of the Department of Pediatrics about this letter dated 10.8.2017 and that too in the absence of the applicant. Further it is urged that in the year 2016 when M/s. Pushpa Sales Pvt. Ltd. gave notice regarding stopping the supply of oxygen, the applicant had written letter dated 21.12.2016 to the Chairman, National Human Rights Commission, New Delhi stating therein that as and when budget would be received, the payment would be made to M/s. Pushpa Sales Pvt. Ltd., even then Pushpa Sales Pvt. Ltd. gave threat regarding stoppage of supply of oxygen. Since M/s. Pushpa Sales Pvt. Ltd. used to issue threat to B.R.D. Medical College to stop supply of oxygen in case of non-payment, the applicant vide letters dated 21.12.2016 and 22.12.20116 had informed M/s. Pushpa Sales Pvt. Ltd. that whenever the fund would be received from Government, payment would be made and that there could be some delay due to the institution being a Government institution and it was requested that the supply of oxygen should not be stopped at any cost.
6. It is further urged that the allegation is also made against him regarding allotting juice and fruit shops in consideration of illegal gratification which is wholly denied. In fact tenders were invited and after proper agreement, shops were let out.
7. As regards allegation that instead of Modi Chemicals, supply was being made from Imperial Gas Ltd., denying the allegation, he states that Modi Chemical was supplying oxygen @ Rs.245/- per cylinder whereas Imperial Gas Ltd. was supplying @ 235/- per cylinder. Likewise Bulk Nitrous L Type Modi Chemicals was supplying @ Rs.5250/- per cylinder whereas Imperial Gas Ltd. was charging Rs.5150/- per cylinder. Thus gas was ordered to to be supplied by Imperial Gas Ltd. on lower rate. It is further mentioned that despite the the aforesaid facts, Imperial Gas was ordered to supply oxygen on trial basis. As regard the other charge that he spent money without inviting tenders, denying the said allegation, it is urged that by order dated 14.10.1996 Government of U.P. has authorized applicant to make direct purchase to the tune of Rs.15000/- per month without any tender which was enhanced upto Rs.20,000 vide order dated 23.9.2008. In view of this, he authorized Dr. Kafeel Khan, Incharge of Pediatric Department/Nodal Officer to make necessary purchase to the tune not exceeding Rs.20000/- as and when required, hence the purchases were made by him under the authority given to him and various authorization letters were issued by the applicant. Further it is urged that as regards Dr. Kafeel Ahmad Khan being allowed to do private practice, same has been wholly denied and it is stated that Dr. Kafeel Ahmad Khan had himself given affidavit at the time of his selection under National Health Mission that he would not force the patient for private treatment. Lastly it is stated that all the allegations made against him were false and baseless and he was entitled to be released on bail as such he had applied for bail before Special Judge (P.C. Act), Court No.2, Gorakhpur which has been erroneously rejected on 7.11.2017 and since then he is languishing in jail; he is not previous convict nor does he have any criminal history. There is no chance of his absconding or tampering with the evidence if enlarged on bail and is ready to furnish adequate surety.
8. Learned A.G.A. has vehemently opposed the bail by filing the counter affidavit stating therein that the applicant in connivance with his wife permitted her to interfere in every administrative affair of BRD Medical College, Gorakhpur and under his permission and connivance his wife co-accused Dr. Purnima Shukla was in the habit of sitting in the office of accused applicant. The investigation has revealed that she used to take oral decisions in every administrative affair of BRD Medical College, Gorakhpur including in the matter of supply of drugs, liquid oxygen and other requirements as well as payments thereof and this was being done sometimes in presence of accused applicant and sometimes in his absence. She was permitted to deal with all the persons connected with BRD Medical College, Gorakhpur and she was receiving bribes by her own as well as on behalf of accused applicant. She was in the habit of putting pressure upon the applicant as well as on the other persons to get more and more commission in lieu of payment of bills and the accused applicant was supposed to sanction payments of bills after receiving green signal from her. The investigation has revealed that the applicant as well as his wife were adamant to get at least 10% commission of the amount of bills to be passed in favour of M/s. Pushpa Sales Pvt. Ltd. which was supplier of liquid oxygen and the investigation also revealed that the applicant left the medical college at the crucial juncture without having any permission from the superior authority. It is further urged that the enquiry report of the committee does not disclose the fact that death of children was not caused due to shortage of liquid oxygen, however, this fact has no impact over the criminal liability of accused applicant as well as co-accused applicants of criminal case in question, in view of the fact that their misdeeds created chaos in the smooth functioning of BRD Medical College and also created horrific shortage of liquid oxygen at the relevant point of time which resulted into unprecedented situation in the functioning of medical college and created every possibility for death of children which could have been avoided anyhow by use of emergency 'ambu bags' and “jumbo oxygen cylinders”. The liquid oxygen was being used by the BRD Medical College through different modes like, supply by Pushpa Sales Pvt. Ltd, the emergency use of Jumbo cylinders of liquid oxygen as well as use of “Ambu Bag” as oxygen reservoir and as such, the opinion drawn in the inquiry report to the effect that the death of children was not caused due to shortage of liquid oxygen has no relevance for adjudication of the present bail application. The applicant had wrongly intermingled various issues just to mislead the court. Further it is urged that covering letter of Director General (Medical Education) U.P. reveals that information supplied by accused-applicant was not verified through any independent source and was forwarded to the Government as it is. However, it is relevant to state that the report of the accused-applicant dated 11.7.2017 discloses the fact that the various complaints regarding interference of his wife Dr. Purnima Shukla in functioning of accused-applicant were existing even since prior to the institution of present criminal case and it was apparent on the face of record that he was indulging in this kind of illegal activities since long which now surfaced in black and white by means of crime in question. Further it is urged that payment against the bills for supply of liquid oxygen were not being continuously released in favour of M/s. Pushpa Sales Pvt. Ltd. on one pretext or other despite having sufficient budget in financial year 2016-17 and the accused persons of the crime in question had caused the budget to lapse to the tune of Rs.2,50,00,000/- in the financial year 2016-17 primarily due to misdeeds of accused applicant and his wife whereas rest of the accused were in connivance with each other and were indulging in corrupt practices. Likewise, in respect of financial year 2017-18, substantial part of payments in favour of M/s. Pushpa Sales Pvt. Ltd. was released after much hue and cry on 10/11.8.2017. In fact, the fund under the standard head no. 39-Drugs & Chemicals for the financial year 2017-18 was received by the BRD Medical College, Gorakhpur on 12.4.2017 and also on 18.5.2017 prior to the month of August 2017. Even in the month of August 2017, the funds under the said standard head no.39 were received by the BRD Medical College, Gorakhpur on 5.8.2017 and 12.08.2017. However, despite sufficient budget being available the bills of liquid oxygen by M/s Pushpa Sales Pvt. Ltd. were not passed and the payments were not being made. In this respect, the applicant being Principal was having primary responsibility who was aware of the requirement of payment as numerous letters were submitted by the said supplier since the year 2016 upto first week of August 2017. Even the legal notice was also submitted by the said firm on 30.7.2017 but even then heed was not paid by the applicant. He left the college without permission from superior authority leaving behind the medical college in a very sensitive situation. Details of budget of 2017-18 under the head 39 have been given which shows that amount was sanctioned by the Government in four instalments and the replies given in this regard by the applicant are distorted version. Further it is urged that he had not stated anything regarding issuance of any permission in his favour for the purpose of his visit to Rishikesh. He was neither on leave on 10/11.8.2017 nor was he permitted by any superior authority to leave Medical College. It is also urged that he granted financial power to Dr. Kafeel Ahmad Khan in clear violation of the rules under Financial Handbook and he was in full knowledge that Dr. Kafeel Ahmad Khan was doing private practice and yet he was claiming non-practicing allowance. Lastly, it is mentioned that based upon concrete materials collected during the investigation, the nature of gravity of offence as well as manner in which it has been committed coupled with the resultant horrific shortage of liquid oxygen in the said Medical College unprecedented hostile situation had arisen for which the applicant was instrumental, which disentitles him for bail during the course of trial as there was possibility of tampering with evidence, threatening or influencing the prosecution witnesses and his abscondance could not be ruled out.
9. After having heard both sides and perusal of record it is clear that according to FIR there are serious allegations made against the present accused whose conduct as narrated above, has revealed that he could not ensure the supply of liquid oxygen which led to death of children admitted in the BRD Medical College by not making timely payment to M/s. Pushpa Sales Pvt. Ltd. despite the fact that he had sufficient funds available at his end which were allowed to lapse because of his own mistakes or the mistakes of his subordinates as per the evidence which has come on record. Delay in payment is also attributed to interference made by co- accused, his wife in clearance of the payments because of illegal demand of 10% on each bill to be paid to her or the applicant. The plea which has been taken by the applicant that budget lapsed because of mistake on the part of subordinate staff does not corroborate from the record nor it can discharge him from his liability because he being head of the institution, ought to have taken care to ensure uninterrupted supply of such essential items as liquid oxygen which is a life saving item which has resulted in loss of life of several children. The material on record shows that the working in the hospital was completely in a mess and chaotic condition. The applicant being the head of the BRD Medical College, Gorakhpur had completely closed his eyes and least bothered about the sorry states of affairs prevailing in the hospital and also illegally allowed his wife to interfere in the smooth running of the hospital. Investigating agency has found him actively involved in the commission of offence and has filed charge-sheet against abovementioned sections, hence we do not find any justifiable ground to grant indulgence of bail to the applicant in Case Crime No.428 of 2017 under sections 308, 409, 120B IPC and Section 7/13 of Prevention of Corruption Act, Police Station Gulariha, District Gorakhpur and his bail application deserves to be dismissed and is accordingly dismissed at this stage.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date:30.04.2018 AU