High Court · 2024
Facts
1 Cr. W.P. 1072 / 2021+ CORRECTED VIDE COURT’S ORDER DATED 01-04-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1072 OF 2021Dr. Madhav S/o Veerappa Chambule,Aged : 50 years, Occu : Medical Practitioner,R/o. Udaygiri Multi Specialty Hospital,Shelal Road, Udgir, Tq. Udgir,Dist. Latur .. Petitioner Versus 1] The State of Maharashtra, Through the Police Station Officer, Police Station Udgir (Rural), Dist. Latur2] Maheshkumar S/o Trimbakrao Jivane, Aged : 46 years, Occu: Self Employed, R/o. Hindustan Colony, Bidar Road, Udgir, Tq. Udgir, Dist. Latur (Orig. Complainant / Informant) .. Respondents ...Advocate for petitioner : Mr. A.N. IrpatgireMr. Maheshkumar Trimbakrao Jeevane respondent no. 2 in person APP for the respondent – State : Mr. G.A. Kulkarni... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 18 MARCH 2024PRONOUNCED ON : 28 MARCH 2024JUDGMENT (MANGESH S. PATIL, J.) :Heard both the sides. Rule. Rule is made returnableforthwith. On their request, the matter is heard finally at the stage ofadmission. 2.The writ petition is by one of the accused is seekingquashment of the crime No. 0279 of 2021 registered at Udgir PoliceStation, Tq. Udgir, District – Latur and consequent charge sheet no.204 of 2022 pending in the Court of Judicial Magistrate First Class, 2 Cr. W.P. 1072 / 2021+ Udgir for the offences punishable under section 420, 274, 275, 276, 34of the Indian Penal Code and Section 9-B, 18(c), 17-B of the Drugs andCosmetics Act, 1940. 3.The respondent no. 2 - informant lodged a complaint withPolice on 12-06-2021 alleging that his mother aged 72 years wasadmitted to the petitioner’s hospital since both of them have beenfriends for number of years. After HRCT scan and blood examination,initially she was treated as an outdoor patient on 15-04-2021. Againshe developed fever and in the early morning of 16-04-2021, she wastaken to the petitioner’s hospital and was admitted. In the evening, shewas shifted to the ICU and then in a special room. Another HRCT scanwas done. Since it read 11, the petitioner diagnosed that she washaving COVID infection and prescribed 6 doses of remdesivirinjections. In spite of efforts, the informant could not get the injectionsand informed the petitioner about it.4.The complaint then alleged that on 17-04-2021 in themorning hours, the petitioner called the informant in his cabin. Aperson was sitting there. The petitioner told him that he wasDr. Namdeo Giri and further informed that due to Dr. Giri’s help, theremdesivir injections were arranged but will have to be bought atRs.15,000/- per vial, in aggregate Rs.90,000/-. Considering theexigency, the informant agreed, however, Dr. Giri was having only two 3 Cr. W.P. 1072 / 2021+ vials which the petitioner handed over to the informant. It was havingdescription as manufactured by Mylan company having brand nameDESREM and the petitioner told him that it was remdesivir injection.The vials were having an indication that those were for clinical trial use.Therefore, the informant asked the petitioner as to if it would beadvisable to give such injection to his mother whereupon the petitionerassured him that it would not make any difference and on the sameday, his mother was given two doses of remdesivir.5.The complaint then alleged that since the informant wasnot carrying sufficient money in the morning of 17-04-2021, Dr. Giricontacted him in his home where the informant paid him Rs.40,000/-.Dr. Giri then handed over him four more remdesivir injections aftersome time, near the petitioner’s hospital. Dr. Giri collected theremaining amount of Rs.50,000/- on the next day from the informant’swife.6.The complaint also then alleged that since there wasscarcity of remdesivir injections, even his relatives were in search ofsuch injections. On 18-04-2021, when the informant was in thehospital, his relatives handed over to him couple of remdesivirinjections. Even those were of Mylan company with brand nameDESREM. Those two remdesivir injections received from the relativeswere administered to his mother on 18-04-2021 and 19-04-2021. 4 Cr. W.P. 1072 / 2021+ Thereafter, she was given another two remdesivir injections which thepetitioner and Dr. Giri had given to him, on 20-04-2021 and21-04-2021. Remaining two injections received from them remainedwith the informant. Unfortunately, the condition of his mother could notimprove and she breathed last in the early hours of 02-05-2021.7.The complaint also alleged that after coming out of theshock, due to death of mother he carefully examined the emptyremdesivir vials which he had bought from the petitioner and Dr. Giriand couple of vials which had remained unused with him. The emptyvials of the injections which were procured by his relatives andadministered to mother and noticed that the residue drops in the emptyvials of the injections which he had bought from the petitioner andDr. Giri had turned reddish, however, similar residue drops from thevials which he had procured from the relatives had not turned reddish.He noticed that the vials received from the petitioner and Dr. Giri werefor clinical trial use having MRP of Rs.4800/- showing date ofmanufacture as 09/2020 and the expiry date is 08/2022, when theexpiry date of remdesivir injection is usually 1 year. He also noticedthat the label of Mylan company on the vials bought from the petitionerand Dr. Giri appeared duplicate. It was having a toll free number but itwas unresponsive. 5 Cr. W.P. 1072 / 2021+ 8.It then alleged that on 15-05-2021, he compared thedetails together with the figures of the vials he had bought from thepetitioner and Dr. Giri on Mylan company on its official website. On18-05-2021, the company responded by informing him by return mailthat those vials were duplicate. Having confirmed thus, he realized thattaking advantage of the COVID-19 pandemic, he was defrauded anddishonestly and illegally was made to buy those duplicate remdesivirinjection vials for a sum of Rs.90,000/-.9.It also alleged that before approaching police, he indulgedin telephonic conversation with the petitioner on his mobile which herecorded. He offered to return the remaining two vials purchased fromDr. Giri. Stating that the patients had reduced considerably, thepetitioner refused to take it back and suggested him to approachDr. Giri. It alleged that bogus remdesivir injections were fraudulentlysold by the petitioner and co-accused Dr. Giri to the informant and hehaving been made to pay Rs.90,000- he was cheated. He producedthe entire record, the empty vials of the alleged bogus injections,transcript of the telephonic conversation and the material received fromthe Mylan company, with the concerned police on 12-06-2021 whilelodging the complaint.10.Since no crime was being registered, it appears that therespondent no. 2 pursued the matter with the higher authorities and 6 Cr. W.P. 1072 / 2021+ ultimately a formal FIR was got registered from him on 17-07-2021 andthe offence was registered initially as crime no. 279 of 2021 for theoffences punishable under section 420, 274, 275, 276 r/w. 34 of theIndian Penal Code against the petitioner and Dr. Giri. It appears thatthe empty vials allegedly sold by the petitioner and Dr. Giri to therespondent no. 2 were sent to the Drugs and Cosmetics department. Itwas sent for forensic analysis. A report was received on 27-07-2021.The injection was found to be spurious and the AssistantCommissioner of Drugs, Latur directed the Investigating Officer toinclude the offence punishable under section 27 r/w. 9-B, 17-B and18(c) of the Drugs Act.11.During the course of investigation, supplementarystatement of the respondent no. 2 were recorded on 08-10-2021 and16-03-2022. Investigation was carried and the chargesheet was filedfor all the afore-mentioned offences under the Indian Penal Code andthe Drugs Act.12.The learned advocate for the petitioner would submit thatthe registration of crime and its investigation by the police officer inrespect of the offences under the Drugs Act itself is faulty. He could nothave carried out the investigation into the offence under the Drugs Actand that goes to the root of the investigation.
Legal Reasoning
13 Cr. W.P. 1072 / 2021+ these things have led to some delay, in our considered view, thatcannot be a ground to stall the prosecution abruptly, particularly whenthere is prima facie material in the form of report of the forensiclaboratory and even the response from the concerned company thatthe vials were fake ones.24.As far as the objection regarding authority of a policeofficer to carry out investigation into the crime under the Drugs Act, theissue is no more res integra in view of the observations of the SupremeCourt in the matter of Ashok Kumar (supra). Besides, even sub-section 3 of section 32 of the Drugs Act expressly mentions that theofffences under that Act and any other law can be simultaneouslyproceeded with. Therefore, there is no substance in the statement onbehalf of the petitioner that the investigating officer did not have thepower to carry out investigation into the offences under the Drugs Act. 25.So far as the facts are concerned, the fact that thepetitioner had introduced Dr. Giri to the respondent no. 2, they met inhis cabin and vials were bought by the respondent no. 2 which wereadministered to his mother which were subsequently found to bespurious, coupled with the fact that instead of M.R.P. of Rs.4,800/- pervial, those were sold to the respondent no. 2 @ Rs.15,000/- per vial,that too is the rate having been agreed before the petitioner and in hiscabin, in our considered view, is sufficient to make out the ingredients 14 Cr. W.P. 1072 / 2021+ for the offence of cheating as defined under section 420 of the IndianPenal Code.26.Even if the actual money was received by Dr. Giri andthere is no material to demonstrate about the petitioner having receivedany share of the sale proceeds, in our considered view, his subsequentconduct in dis-owning any relationship with Dr. Giri but admitting in thetelephonic conversation about Dr. Giri’s frequent visits to the hospitalwhere apparently he used to admit his patients, are sufficient todemonstrate, at this juncture, that the allegations about he havingfraudulently and dishonestly induced the respondent no. 2 to buy thefake vials, that too with an exorbitant price, in our considered view, issufficient to reveal his complicity in the crime.27.There is one more aspect which could have a bearing. Therespondent no. 2 is stated to have approached the petitioner withunused vials which the respondent no. 2 had bought from Dr. Giri,however, he refused to use it to any other patient saying that thenumber of patients with COVID infection had reduced considerably andsuggested him to meet Dr. Giri.28.Considering the overall conspectus of the matter, in ourconsidered view, it cannot be said that the petitioner is being falselyimplicated or making him face the trial would be an abuse of theprocess of law. 15 Cr. W.P. 1072 / 2021+ 29.We see no sufficient and cogent reason to quash the crimeand the criminal case.30.Criminal writ petition is dismissed.31.Rule is discharged. 32.Observations made herein-above are confined to thedecision of the present writ petition and the trial Court shall not feelinfluenced by those. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/
Arguments
7 Cr. W.P. 1072 / 2021+ 13.The learned advocate Mr. Irpatgire would further submitthat the petitioner has been falsely implicated. Even according to therespondent no. 2 they have been friends for many years. It is onlybecause of such close relationship that the mother of the respondentno. 2 was admitted in the petitioner’s hospital. He had no dishonest orfraudulent intention. As it is, due to the pandemic, remdesivir injectionswere not available. Since Dr. Giri was able to procure those, thepetitioner had helped the respondent no. 2 in having it. There was noreason or occasion for the petitioner to know that it was spurious. Hadthere been any such intention and mens rea, instead of making therespondent no. 2 search for the injections, he himself could havereadily made it available. It is only because Dr. Giri who wasfrequenting to the petitioner’s hospital and was able to procure theremdesivir injections that the petitioner had informed the respondentno. 2. He had no role in the transaction except bringing Dr. Giri and therespondent no. 2 together. There is nothing to demonstrate that thepetitioner has derived some wrongful gain without which ingredients forconstituting the offence punishable under section 420 of the IndianPenal Code cannot be made out.14.Mr. Irpatgire would submit that the petitioner is correctlybeing not charged or being held responsible for causing the death. Heis also not being charged for medical negligence. 8 Cr. W.P. 1072 / 2021+ 15. Mr. Irpatgire would then submit that investigation has notbeen proper. It is only because of the pressure created by therespondent no. 2, having developed grudge because of death of hismother that the crime was registered. The very version that afteradministration of two injections on the first day, according to therespondent no. 2, the empty vials were carried by him, would beimprobable it being a bio-medical waste. He had procured fewremdesivir injections from his relatives and he himself tendered theempty vials to the investigating machinery. Though chemical analysiswas done it leaves every room to doubt as to if the vials which therespondent no. 2 states to have procured from Dr. Giri were handedover to the investigating machinery. Since there is no investigationabout it, it would be gross abuse of the process of law to make thepetitioner, who is a medical practitioner, to face the trial. The hospitalwhere the petitioner is working, is a multi-specialty hospital wherein asmany as 15 doctors work. There is enormous delay in lodging the FIRwhich leaves room for doubting the credentials of the allegations. Dueto the enormous pressure created by the respondent no. 2, Dr. Giriended his life and the respondent no.2 has even been prosecuted forabetting the suicide.16.The learned APP and the respondent no. 2 in person byreferring to affidavits filed by him would take us through thechargesheet and even point out the telephonic conversation between 9 Cr. W.P. 1072 / 2021+ the petitioner and the respondent no. 2 as was mentioned in the firstcomplaint lodged on 12-06-2021. They would submit that this being aproceeding under section 482 of the Code of Criminal Procedure, thisCourt cannot undertake a minute scrutiny by holding a mini trial. Theywould submit that this Court would be guided by the principles laiddown in the matters of Chilakamarthi Venkateswarlu and anotherVs. State of Andhra Pradesh; (2019) SCC Online 948 and State ofHaryana V/s Bhajan Lal; 1992 Supp (1) SCC 335 and according tothem, it is only if the matter falls under categories laid down in thatmatter that a crime and criminal case can be quashed. Irrespective ofother material, the very fact that the respondent no. 2 happens to be afriend of the petitioner, according to them, is sufficient to rule out anyfalse implication. Similarly, they would submit that if at all therespondent no. 2 was intending to implicate the petitioner falsely,possibly several serious allegations could have been made / attributedto the petitioner. The respondents are not making any allegation abouteither the medical negligence or for directly causing death by using aspurious injection. This, according to them also would demonstratethat the respondent no. 2 has not initiated the prosecution with anyulterior motive.17.As regards the delay, the respondent no. 2 would take usthrough the record to demonstrate as to how the police were reluctantto act on his complaint and he had to run from pillar to post and had to 10 Cr. W.P. 1072 / 2021+ approach the Inspector General of Police. It is only thereafter that thecrime was registered. Even that did not happen at the first stroke whenhe approached the police and his report was received on 12-06-2021.Ultimately, the crime was registered on 17-07-2021.18.As regards the objection regarding a police officer carryingout investigation in the offences under the Drugs Act, they wouldsubmit that by virtue of sub-section 3 of section 32 of the Drugs Act, aperson who is being prosecuted for the offence under the Drugs Act,can also be simultaneously prosecuted under any other law for any actor omission which constitutes the offences in that Act. He would alsorely upon the decision in the matter of Union of India Vs. AshokKumar Sharma; (2021) 12 SCC 674.19.On facts, the learned APP and the respondent no. 2 wouldsubmit that the doubt being raised in respect of the empty vials of thefake injection received by the respondent no. 2 after first two doseswere administered to his mother, they would point out that there isWhatsApp conversation between the respondent no. 2 and his sisterfrom USA, screenshots of which have been produced by therespondent no. 2 and are even part of the chargesheet to demonstratethat the empty vials were returned to the respondent no. 2. Besides,according to them, it would be a matter to be scanned by the trial Courtbased on the evidence to be led before it. If at all the prosecution is 11 Cr. W.P. 1072 / 2021+ unable to rule out the probabilities being pointed out by the petitioner,he would get due benefit, however, that exercise cannot be undertakenin this proceeding with a limited jurisdiction.20.The learned APP and the respondent no.2 would furthersubmit that the latter had also brought another remdesivir injection ofdifferent brand, which the petitioner refused to administer to his motherstating that it was fake. He being a medical practitioner, having specialknowledge, must have been administering remdesivir injections duringthe COVID times and could have easily made out that the vialsobtained from Dr. Giri were fake. There is a specific conversationtranscript to substantiate this fact. Even the fact that the vials werecontaining specific instruction that those were for clinical trial usewhereupon the petitioner assured that that would not make anydifference. Though the petitioner initially refused to admit hisassociation with Dr. Giri, admitted in the telephonic conversation thatDr. Giri was frequenting to his hospital wherein his patients used to beadmitted and used to pay visits. It is only due to petitioner’sintervention that the respondent no. 2 had bought those fake vials.Even if there is no actual proof about petitioner having received anyshare of the sale proceeds from Dr. Giri the above facts, at thisjuncture, are sufficient to demonstrate petitioner’s involvement. 12 Cr. W.P. 1072 / 2021+ 21.To sum up, they would conclude that it is not a case offalse implication, prosecution deserves to be extended an opportunityto substantiate the charges by leading cogent evidence. The petitionerwill get sufficient opportunity to participate in the trial and may even beacquitted but there is no reason to shunt the prosecution at thethreshold.22.It is trite that while exercising the powers under section482 of the Code of Criminal Procedure, this court in the process ofanalyzing the material cannot indulge in a mini trial. It is only if thefacts and circumstances are covered by the instances quoted in thematter of Bhajan Lal, this extra-ordinary jurisdiction can be exercised.Bearing in mind these principles, at the inception, it would beappropriate now to approach the facts and circumstances.23.Starting with the ground of delay, in our considered view,that should not bother us at this juncture and the trial court can ponderupon it while reaching to a conclusion on overall conspectus of thematter and the evidence to be led before it. There is enough materialto demonstrate that attempt of the respondent no. 2 to set the criminallaw in motion did not find favours with the investigating machinery. It isonly after some persuasion that ultimately the crime was registered.Even it appears that time was consumed for getting the empty vialstendered by the petitioner analyzed from a forensic laboratory and if all