JUDGMENT Hon’ble Sunil Hali, J.—Principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation, from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. Facts of this case are some how similar where an effort was made to push the matter under the carpet. Therefore, through an intervention of this Court in Writ Petition No. 3611 (MB) of 2011 [P.I.L] Sachchidanand (Sachchey) v. State of U.P. and others, connected with other matters, Central Bureau of Investigation (hereinafter referred to as ‘the CBI’) was directed to hold preliminary enquiry in the matter concerning implementation of the National Rural Health Mission (NRHM) in the State of Uttar Pradesh. Gross abuse and misappropriation of NRHM funds by the State functionaries in a planned and concerted manner was alleged in the petition filed before this Court. This Court in its order dated 15.11.2011 issued the following direction as under : “We, therefore, direct the Director, CBI to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of U.P. and register regular case in respect of persons against whom prima facie cognizable offence is made out and proceed in accordance with law. The preliminary enquiry shall be conducted from the period commencing year 2005-06 till date. It is directed that the inquiry be completed within four months. The State Government is directed to hand over and make available all the records as may be required by the CBI and render full support and cooperation to CBI. The Central Government is also directed to render full support as may be asked by the CBI.” 2. In view of above direction issued by this Court FIRs were registered and the preliminary enquiry was conducted by the CBI. After conclusion of the preliminary inquiry prima facie involvement of the accused in the crime was established as a result of which investigation was proceeded with. In view of above direction issued by this Court FIRs were registered and the preliminary enquiry was conducted by the CBI. After conclusion of the preliminary inquiry prima facie involvement of the accused in the crime was established as a result of which investigation was proceeded with. On the conclusion of the investigation various charge-sheets have been filed before the CBI Court at Ghaziabad. Taking cognisance in the matter process has been issued to summon the accused persons. These summoning orders are subject-matter of challenge before this Court. Following are the details of the applications under Section 482 Cr.P.C., questioning the various charge-sheet, filed by the accused persons before this Court. Three charge-sheets have been filed bearing No. RC 220-2012 E0001, RC 220-2012,E0002 and RC 220-2012 E 0003. The said charge-sheets have been questioned in this Court, details of which are given herein below : 1. Charge-sheet bearing No. RC 220-2012 E001 has been questioned in Application under Section 482 Cr.P.C. No. 38984 of 2012 and 40999 of 2012. There are eight accused named in the charge-sheet filed by CBI and in the supplementary charge-sheet two more accused persons have been incorporated. The aforesaid two applications have been filed by accused Babu Singh Kushwaha and B.N. Srivastava. 2. Charge-sheet bearing No. RC 220-2012 E0002 has been questioned in Application under Section 482 Cr.P.C. No. 43894 of 2012, 43301 of 2012,43303 of 2012 and 1143 of 2013. There are seven accused persons named in this charge-sheet namely Babu Singh Kushwaha, Devendra Mohan, Ravindra Rai, Pradeep Shukla, Naresh Grover, M/s Surgicoin Medequip Pvt Ltd., and R.P. Jaiswal. 3. Charge-sheet bearing No. RC 220-2012 E0003 has been filed in Application under Section 482 Cr.P.C. No. 43521 of 2012. There are four accused persons in the charge-sheet namely S.P. Ram, Saurabh Jain, Suneet Singhal and M/s CNC Metal Forming Ltd through its Director Suneet Singhal and in the supplementary charge-sheet six more accused persons have been named as accused namely Pradeep Shukla, Vipin Kumar Chaudhary, M.M. Trpathi, A.K.Srivastava, Vipul Kumar Gupta, Babu Singh Kushwaha. It is also important to mention that in the charge-sheet RC 220-2012 E0001 and RC 220-2012 E0002 Girish Malik, Manvendra Chaddha, Ramesh Tandon, Abdul Mateen, S.B. Pandey, Masood Ul Hasan and M. K. Jain were initially arrayed as accused in the FIR have been named as witnesses by prosecution. It is also important to mention that in the charge-sheet RC 220-2012 E0001 and RC 220-2012 E0002 Girish Malik, Manvendra Chaddha, Ramesh Tandon, Abdul Mateen, S.B. Pandey, Masood Ul Hasan and M. K. Jain were initially arrayed as accused in the FIR have been named as witnesses by prosecution. It reveals from the charge-sheet that starting point of conspiracy was a hidden intention to award this contract to one M/s Surgicon Medequip Private Ltd. (hereinafter referred to as the Company) for supplying the O.T. Modular fitted with Acs. It is in this process of awarding contract various acts of omission and commission have been detected by the CBI. 3. Allegations contained in the charge-sheet No. E220-2012 E0002 are that in the Project Implementation Plan (PIP) for the year 2009-2010 the work for up-gradation of 40 District Level Hospitals for a total sum of Rs. 160 crores was proposed and same was approved by Record of Proceedings dated 1.5.2009. Conspiracy was hatched by the accused Pradeep Shukla, IAS the then Principal Secretary, Health and Family Welfare, Government of UP and co-accused Devendra Mohan, the then MD, UPPCL and Ravindra Rai, the then GM (Commercial), UPPCL and Naresh Grover, MD of M/s Surgicoin Medequip Pvt Ltd. Babu Singh Kushwaha, the then Minister, Family Welfare as well as R.P. Jaiswal, the then MLA, Government of UP in furtherance of the said conspiracy, Naresh Grover, MD of M/s Surgicoin Medequip Pvt Ltd through its representative namely Girish Malik and Manvendra Chaddha approached Pradeep Shukla the then Principal Secretary, Health and Family Welfare and Babu Singh Kushwaha, the then Minister, Family Welfare, Government of UP for allotment of the said work to UPPCL for getting the work allotted in his favour. Accused Pradeep Shukla demanded Rs. 1.25 crores and accused Babu Singh Kushwaha demanded an amount of 3 % of the total contract amount for allotting the said work to UPPCL so as to benefit M/s Surgicoin Medequip Pvt. Ltd. The representatives also approached Devendra Mohan, the then M.D. UPPCL and Ravinder Rai, the then GM (Commercial), UPPCL, who also demanded their share of bribe for showing favour to the firm M/s Surgicoin Medequip Pvt Ltd. 4. It is further revealed that Rs. 1.25 crores was paid to the accused Pradeep Shukla in two instalments. An amount of Rs. It is further revealed that Rs. 1.25 crores was paid to the accused Pradeep Shukla in two instalments. An amount of Rs. 25 lacs was paid to the accused Pradeep Shukla at his residence and on his direction an amount of Rs. 1 crores was paid at the residence of his relative namely Ashok Bajpai through Girish Malik and Manvendra Chaddha. An amount of Rs. 75 lacs was paid to Babu Singh Kushwaha through representative of M/s Surgicoin Medequip Pvt Ltd. On receipt of the said amount Babu Singh Kushwaha instructed Pradeep Shukla to award the work of up-gradation of District Level Hospital to UPPCL in order to benefit the M/s Surgicoin Medequip Pvt Ltd. 5. The first step towards achieving the object of conspiracy was to prepare a ground for allotment of the work to UPPCL which admittedly was a company involved in the construction activities. The communication dated 7.8.2009 was sent by accused Devendra Mohan addressed to the Mission Director, NRHM requesting him to award the contract related to up-gradation of Forty District Level Hospital as per Indian Primary Health Centre norms to the UPPCL. This letter was not found to be dispatched from the office of MD, UPPCL nor was any receipt thereof found in the record of the NRHM. It was found in the office file of the said Programme Management Unit containing the endorsement made by S.K.Singh, the then G.M. (Admn), SPMU, NRHM, UP and marked to Dr. R. P. Yadav, the then GM(Construction), SPMU, NRHM. The said letter was handed over personally by accused Ravindra Rai to S.K. Singh and on the direction issued by accused Pradeep Shukla in its meeting on 8.8.2009 contract was allotted to the UPPCL. Meeting is alleged to have been attended by only Rajneesh Pandey and officiating Executive Engineer, office of DG, Family Welfare, Government of UP and R.R. Bharti, Director General, Family Welfare. No other committee member was found to be present in the meeting. Names of other executive members consisting of 17 persons are shown to have attended the meeting. Some other officials of NRHM and DG Family Welfare were shown to have attended the meeting. None of them was regular members of the Executive Committee. Members of the Executive Committee have shown ignorance about the said meeting. Names of other executive members consisting of 17 persons are shown to have attended the meeting. Some other officials of NRHM and DG Family Welfare were shown to have attended the meeting. None of them was regular members of the Executive Committee. Members of the Executive Committee have shown ignorance about the said meeting. On 12.8.2009 out of the 19 members of the Executive Committee only four were shown to be present as per attendance sheet and out of those four members, Lalit Verma, IAS the then Secretary, Medical Health denied to have attended the said meeting. Other three members also have shown ignorance regarding the allotment of the contract to UPPCL as no such agenda was discussed relating to the said allotment. Decision to allot the contract was taken by the then secretary Pradeep Shukla. 6. The second limb of allegations relate to assigning of work of facility survey to one M/s EPOS India Private Ltd by the accused Pradeep Shukla and Devendra Mohan and Ravinder Rai. Purpose was for preparation of facility survey reports in respect of District Level Hospitals. The whole idea was to incorporate the concept of Modular OT in the facility survey reports so as to include the same in the work of up-gradation of district level hospital and to allow maximum illegal gain to M/s Surgicoin Medequip Pvt Ltd. as well as to themselves. The concept of Modular OTs was introduced to help the M/s Surgicoin Medequip Pvt Ltd. Company for which estimated cost of Rs. 50 lacs per hospital was shown. The cost was determined without any survey made in this behalf. 7. The facility survey containing concept of Modula OTs were sent to C. B. Prasad, the then DG Family Welfare, who formed a committee consisting of officers/doctors from the Office of DG Medical Health and DG Family Welfare for evaluation of the said reports. However, the said committee was dissolved on the instruction of accused Pradeep Shukla who wanted to have a committee consisting of Officers/Doctors from the office of DGFW to have direct control over them so as to get the said facility survey reports approved without any objection thereto. After approval of facility survey report preparation for specification of Modular OTs by UPPCL was processed. After approval of facility survey report preparation for specification of Modular OTs by UPPCL was processed. Accused Devendra and Ravindra Rai in furtherance of the said criminal conspiracy obtained the specification from Naresh Grover who got the same prepared in such a way so as to derive maximum profit by way of supply of Modular OTs on those specifications. In order to avoid publicity, it was decided that for the purpose of calling tender publication in only two news papers of lesser circulation should be done. No communication was addressed to Director Information and Public Relations as letter dated 15.1.2010 was never sent to the said Directorate. Publication was made only in two news paper namely ‘Swattantra Chetna’ dated 18.1.2010, Lucknow Edition and in the ‘Statesman’ dated 19.1.2010, Delhi edition. 8. Companies who are said to have participated in the tendering process namely M/s Unicare India Private Ltd, Noida and M/s Anod Pharma Pvt. Ltd, Kanpur and M/s Surgicoin Medequip Pvt Ltd. were managed by accused Naresh Grover. Accused Naresh Grover applied on behalf of M/s Unicare India Private Ltd, Noida and M/s Anod Pharma Pvt. Ltd, Kanpur without their knowledge and for which their papers were fr adulently obtained by him. On the basis of forged and bogus documents co accused Naresh Grover was able to get M/s M/s Unicare India Private Ltd, Noida and M/s Anod Pharma Pvt. Ltd, Kanpur empanelled with UPPCL with the connivance of the co accused Ravindra Rai and Devendra Mohan. The rates quoted by M/s Unicare India Private Ltd, Noida and M/s Anod Pharma Pvt. Ltd, Kanpur were shown on the higher side whereas the rates of the said M/s Surgicoin Medequip Pvt Ltd. were shown on lower side with intent to procure the said contract. The contract was allotted to M/s Surgicoin Medequip Pvt Ltd. at the rate of Rs. 45,16,560/- as cost of Modular OT and cost of Air Conditioning/Air Handling Unit as Rs. 28,90,200/-. Total value of the contract per one Modular OT Unit and AC Unit was Rs. 74,06,760/- which was higher in comparison to the prevalent market value of Rs. 33 to Rs. 34 lacs and as a consequence of this loss to the tune of Rs. 6.02 crores was caused to the State Exchequer with corresponding gain to the accused persons. 9. 74,06,760/- which was higher in comparison to the prevalent market value of Rs. 33 to Rs. 34 lacs and as a consequence of this loss to the tune of Rs. 6.02 crores was caused to the State Exchequer with corresponding gain to the accused persons. 9. It also emerges from the charge-sheet that up-gradation of 89 hospitals was also under way for which M/s Surgicoin Medequip Pvt Ltd. approached the accused persons namely Pradeep Shukla and Babu Singh Kushwaha. An amount of Rs. 1.50 crores was demanded by accused Pradeep Shukla and Rs. 5 crores was demanded by accused Babu Singh Kushwaha. It it alleged that out of the said amount Rs. 1.25 crores was given to accused Pradeep Shukla. It appears that the balance amount was not paid to accused Pradeep Shukla and Babu Singh Kushwaha as a result of which work for 89 District Level Hospital was awarded to PACCFED on 6.9.2010. It appears that the work which was earlier allotted to UPPCL for up-gradation of 40 District Level Hospitals was withdrawn but the same was restored after much persuasion by UPPCL that they had already started the work of Modular Ots in 36 District Hospitals towards up-Gradation of 40 District Hospitals. Allegations further reveals that the Babu Singh Kushwaha and R. P. Jaiswal invested the illegal gratification received to the tune of Rs. 12.61 crores approximately and Rs. 76.27 crores approximately in a number of companies, trust owned and controlled by their family members. Documentary proof in this behalf has also been submitted alongwith charge-sheet. Crux of the allegations in this charge-sheet reflects the manner in which all norms were thrown to winds while focusing on the main object of conspiracy to allow the contract to M/s Surgicoin Medequip Pvt Ltd. The chain of events as are revealed from the charge-sheet identifies the role of all the accused persons in allotting this contract to the said company. 10. Allegations contained in charge-sheet No. RC 220-2012 E 0003 are that for up-gradation of 89 District Level Hospital @ of Rs. 1 crore per hospital totalling Rs. 89 crores, the Executive Committee headed by Pradeep Shukla in its meeting dated 13.7.2010 allotted the said work to PACCFED. 10. Allegations contained in charge-sheet No. RC 220-2012 E 0003 are that for up-gradation of 89 District Level Hospital @ of Rs. 1 crore per hospital totalling Rs. 89 crores, the Executive Committee headed by Pradeep Shukla in its meeting dated 13.7.2010 allotted the said work to PACCFED. It is alleged that during the period June-July 2009, Sri Saurabh Jain and Rajni Jain, Directors of M/s SRJ Ifratech Pvt Ltd., Seema Varshney Director, M/s SS Industries and Suneet Sehgal, Director, M/s CNC Metal Farming Pvt Ltd. entered into criminal conspiracy with Pradeep Shukla and S.P. Ram, the then DG, Family Welfare and Officers of PACCFED for obtaining the contract for up-gradation work of 89 District Level Hospital on the basis of bogus documents submitted by the said company. The said work was allotted to the PACCFED by the Pradeep Shukla on 13.7.2010 instead of UPPCL which was already doing similar work in 40 Hospital by showing that the performance of UPPCL was not satisfactory. On persuasion of the representative of M/s Surgicoin Medequip Pvt Ltd. the work was allotted to UPPCL instead of PACCFED. In pursuance to the said decisions, funds to the tune of Rs. 87.16 crores were transferred in the account of UPPCL by the DG, Family Welfare on 19.8.2010 and direction was given to all Chief Medical Superintendents to consult the District Unit of UPPCL to give priority to the said work. However, again on 6.9.2010 the Executive Committee headed by Pradeep Shukla decided to transfer the work from UPPCL to PACCFED in lieu of monetary consideration to the extent of 25% of the total project cost to be paid by Sri Saurabh Jain of M/s SRJ Infratech and his associates. The said decision was taken on the basis of false report prepared by Sri S.P. Ram, the then DG, Family Welfare. The said contract was allotted at exorbitant rate of Rs. 45,96,500/- per Modular Ots and for AC Units Rs. 28 lacs. The loss to the tune of Rs. 17.68 crores has been caused to the Government exchequer. 11. Allegations contained in charge-sheet No. RC 220-2012 E 0001 relates to up-gradation of 134 District Hospitals in UP under the NRHM. Loss to the tune of Rs. 5.36 crores has been caused to the Government exchequer. 28 lacs. The loss to the tune of Rs. 17.68 crores has been caused to the Government exchequer. 11. Allegations contained in charge-sheet No. RC 220-2012 E 0001 relates to up-gradation of 134 District Hospitals in UP under the NRHM. Loss to the tune of Rs. 5.36 crores has been caused to the Government exchequer. The said work has been allotted to the Naresh Grover, MD of M/s Surgicoin in connivance with the office of Construction Design Service, UP. It is alleged that the representative of M/s Surgicoin Medequip Pvt Ltd. approached Babu Singh Kushwaha, the then Minister of Family Welfare and R.P. Jaiswal at his residence to get the said work under NRHM allotted in their favour. For allotting the said work Babu Singh Kushwaha and R.P. Jaiswal demanded a bribe equivalent to 3 % of the total project value which was agreed to by the accused company. Executive Committee headed by Sri Pradeep Shukla decided to have this contract executed by the Construction and Design Services, UP. One D.K.Singh who is said to be an official looking after the work of Construction and Design Services accepted to allot the contract to the said company in case the work to the tune of Rs. 2 crores be given to R.K.Singh, Proprietor of M/s Modern Interiors, Lucknow, a friend of D.K.Singh. Rates were prepared by Unit No. 50 Barabanki, C&DS which were higher to the extent of 5 times more than the prevalent market value. 12. Allegations against the accused B. N. Srivastava are that while functioning as Project Manager in furtherance of the criminal conspiracy with the officials of C&DS verified 27 items to be supplied to 134 district hospitals without consulting the then Medical Superintendent of the respective hospitals as a consequence of which a sum of Rs. 9,93,30,016/- and Rs. 1,74,51,328/- were paid to M/s Surgicoin Medequip Pvt. Ltd. in view of supplied items verified by the said accused to 134 District Hospitals under the NRHM scheme. Rates were highly exorbitant. It is revealed from the charge-sheet that the rates were five times higher than the market value as a result of which loss to the extent of crores was suffered. Amount of money collected by the accused Babu Singh Kushwaha and R. P. Jaiswal were invested by them in various trusts and companies owned/controlled by them, their family members and associates. Amount of money collected by the accused Babu Singh Kushwaha and R. P. Jaiswal were invested by them in various trusts and companies owned/controlled by them, their family members and associates. The above investments were undertaken through paper based companies located at various parts of India. It is alleged that these companies are only in the business of creating entries with regard to the regularisation of illegal financial transaction. These companies used to create cheque entries against the cash payments received from the parties. Details of investments made by the two accused is contained alongwith the charge-sheet. The purchase committee of Unit No. 50 C&DS Barabanki has collected 04 quotations from M/s Surgicoin Medequip Pvt Ltd., M/s Modern Interiors, 30, M/s Rajpal and M/s Avon Dealers. No other quotation was given supply order. Rates quoted in respect of various items as well as quotation submitted by M/s Surgicoin Medequip Pvt Ltd. Were 3-5 times more than the market rates prevalent at that time. By comparing the rates a loss of Rs. 5.93 lacs per unit was caused to the Government exchequer, amounting to a total loss of Rs. 7.93 crores. 13. Since in all these cases controversy relates to the misuse and misappropriation of funds for implementation of NRHM scheme in the State of UP and the nature of legal issues raised are identical as such they are being dealt with by a common order. The issues which were subject-matter of enquiry are; (1) deliberate acts of omission and commission with culpable intention of State functionaries to abuse NRHM funds, (2) the irregularities in purchases of medicines, equipment and other material relating to NRHM, and (3) omission of the State to take prompt corrective measures even after being fully acquainted with the irregularities being committed in the utilization of NRHM funds. In order to understand the working of the NRHM, it is necessary to give some basic premise on the basis of which scheme was to be implemented in the State of U.P. 14. The Scheme of NRHM was launched on 12.4.2005 with a view to provide accessible, adequate, affordable, accountable and reliable health care to all persons particularly the vulnerable people residing in remote areas. It was a special scheme which was required to be implemented by the State Government. The Scheme of NRHM was launched on 12.4.2005 with a view to provide accessible, adequate, affordable, accountable and reliable health care to all persons particularly the vulnerable people residing in remote areas. It was a special scheme which was required to be implemented by the State Government. In this behalf, a Memorandum of Understanding (MoU) was entered into between the Government of India and Government of Uttar Pradesh to this effect on 22.11.2006. This MoU governs the implementation of the Mission in the State which provides decentralised system of administration. The State was interested with responsibility of administration of the Mission whereas substantial resources are to be provided by the Union Ministry of Health & Family Welfare (MoH&FW) in contribution with the State Government. The implementation of NRHM in the State is to be under the overall guidance and supervision of the State Health Mission constituted as per G.O. dated 16.11.2006 with Chief Minister as its ex-officio Chairperson. The State Health Society registered under the Societies Registration Act was constituted by merging all existing state level health societies on 21.2.2007 to carry out functions of the Mission in an additional managerial capacity to the Department of Health & Family Welfare of the State Government. It was further ordered that the health and family welfare are two separate departments in Uttar Pradesh and therefore, they were ordered to be merged under the directives of the Central Government into one department of health and family welfare. The State Health Commission’s primary responsibility was to receive, manage (including disbursement of funds to implementation agencies such as Directorate, District Societies, NGOs etc.) and account the funds received from the MoH & FW. The Governing Body of the Society is vested with full control of the affairs of the Society whereas the Executive Committee and such other committees constituted by the Governing Body serve as its implementation agency. 15. The Chief Secretary is the Chairman of the Governing Body which is vested with the power to monitor the financial position of the Society to ensure smooth income flow and review the annual audited accounts and is required to convene meeting at least once every six months. 15. The Chief Secretary is the Chairman of the Governing Body which is vested with the power to monitor the financial position of the Society to ensure smooth income flow and review the annual audited accounts and is required to convene meeting at least once every six months. Body was entrusted with the job to evaluates at its annual meeting (a) the income and expenditure account and the balance sheet for the past year, (b) annual report of the Society, (c) appointments for the executive committee and the various committees, and (d) other business brought forward with permission of the Chairman. The Executive Committee is to act on behalf of the Governing Body and is empowered to take all decisions and exercise all powers vested in the Governing Body except those which the Governing Body was specifically excluded. The Principal Secretary, Family Welfare is the Chairperson of the Executive Committee while a full time Mission Director appointed by the State for NRHM is the Convenor of the Society. The Secretariat known as State Programme Management Support Unit (SPMSU) is responsible for daily management of the Society’s activities as set out in Article 5 of the Memorandum of Association of the Society which includes disbursement of NRHM funds to implementation agencies and also acts as a Secretariat of State Health Mission. According to sub-clause I(B) of clause B of the bye-laws of the Society, all powers pertaining to release of funds for implementation of plans/allocations which have been approved by the Governing Body/Executive Committee have been vested in the Mission Director. The funds made available for the Mission were subject to audit of the State and District societies organised by the State within six months of the close of every financial year. Thereafter, the State Government would prepare and submit a consolidated statement of expenditure, including the interest that has been accrued. All these funds were subject to statutory audit by the Comptroller and Auditor General of India (CAG). It is within this institutional set-up envisaged by the MOU that the NRHM in the State of U.P. was to be implemented. The scheme was implemented in the State in the year 2007 and the state health Mission was constituted which was headed by the Chief Minister as its ex-officio Chairperson. It is within this institutional set-up envisaged by the MOU that the NRHM in the State of U.P. was to be implemented. The scheme was implemented in the State in the year 2007 and the state health Mission was constituted which was headed by the Chief Minister as its ex-officio Chairperson. From the perusal of the aforesaid scheme four tire system was in place to implement the scheme : (a) State Health Mission headed by Chief Minister as its chairman; (b) State Health Society headed by the Chief Secretary as its Chairman; (c) District Health Family Welfare Society which was renamed as District Health Society to guide the policy and operation and; (d) Hospital Management Society called ‘Rogi Kalyan Samiti’. Functions were delineated by the Scheme itself. The State Health Mission was to supervise, monitor and guide the implementation of the Mission in the State and was also required to meet at least once every six months for this purpose. The State Health Society was to receive and manage including disbursement of funds to the implementation of the agencies and governing body of the Society headed by the Chief Minister which was vested with full control of the affairs of the Society whereas the Executive Committee, Programme Committees and such other committees constituted by the Governing Body serve as its implementation agency. Executive Committee is to act on behalf of governing body and is empowered to take all its decisions and exercise all powers vested in the Governing Body except those which the Governing Body may specifically exclude. 16. It appears that the total amount of RS. 8579.38 crores have been released by the Central Government in the State of UP. For utilisation of funds and for its proper management the governing body of the State Health Society has met only twice i.e. on 25.1.2008 and 25.7.2008 until 15.5.2011. This fact has been observed by the Division Bench of this Court in its order. It also appears that all the decision in its place, administrative or otherwise, were instead taken by the Executive Council of the State Health Society that did meet occasionally in the absence of a full-time Mission Director. It is also on record that no full time Mission Director was appointed for almost five years, since the inception of the NRHM until 22.4.2011. It is also on record that no full time Mission Director was appointed for almost five years, since the inception of the NRHM until 22.4.2011. It is only on 9.9.2011, Sri Lokesh Kumar, Senior Manager was appointed as acting Mission Director by order of the Government. Crux of the allegations in the present case relates to the manner in which scheme has been implemented by the Executive council of the State Health Society. The area of investigation has been confined in examining the manner in which the officers have abused their position and mis-appropriated this amount meant for welfare of the State. The only person who was not connected with the State Health Society, whose role was examined by the CBI is the then Minister, Family Welfare, concerned namely Babu Singh Kushwaha. It reveals from the charge-sheet that the starting point of the conspiracy was the hidden intention to award this contract to one M/s Surgicoin Mediquip Pvt Ltd for supplying the O.T. Modular fitted with AC. It is in this process of awarding this contract to the said company various acts of omission and commission have been detected by the CBI. Complicity of the accused is broadly linked with the following acts of omission and commission attribted to them : 1. Dr. Pradeep Shukla, the then Principal Secretary, Health and Family Welfare, State of U.P. in his capacity as Ex-officio Chairman of the Executive Council, awarded the contract to U.P. Project Corporation Ltd. (U.P.P.C.L) after demanding an amount of Rs. 1.25 crores. Corporation is said to be prime mover in initiating the process for allotment of contract to M/s Surgicoin Medequip Pvt Ltd even though in the matter of allotment of contract there is no overt role played by him but he is said to have influenced the decision making process in allotting contract by influencing the officers who are involved in the decision making process. Decision to allot the contract to the private parties has been taken by him as the Ex-Officio Chairman of the Executive Council. The said decision is said to have been taken by the accused on its own. For the purpose of allotting work to the said agency it was initially decided to allot this work to U.P. Processing and Construction Co-operative Federation Ltd. (PACCFED) on 13.7.2010. In another meeting held on 12.8.2010, it was decided to get the work done by UPPCL. The said decision is said to have been taken by the accused on its own. For the purpose of allotting work to the said agency it was initially decided to allot this work to U.P. Processing and Construction Co-operative Federation Ltd. (PACCFED) on 13.7.2010. In another meeting held on 12.8.2010, it was decided to get the work done by UPPCL. The reason behind change of agency was that U.P.P.C.L.’s performance was found to be satisfactory. This decision was again changed and reversed on 13.10.2010 and the same work was again allotted to PACCFED, where performance was also found to be not satisfactory while allotting the contract to UPPCL. The manner in which the said accused has influenced the course of decision is clearly reflected in the charge-sheet. Culpability of the accused in changing his decision by initially allotting the work to one company and reversing the same and then reversed again to benefit the company which was initially allotted the work by itself provides a clue regarding functioning of the accused. 2. Devendra Mohan and Ravindra Rai.—Both these accused were functioning as Managing Director and General Manager in UPPCL : The following allegations have been levelled against them; (a) that while allotting the contract they have allowed M/s Surgicoin Mediquip Pvt Ltd. to have a free play in seeking the contract. It is alleged that specification provided by the purchase committee constituted by the M.D. were tailored for the said company; (b) without ascertaining the market value of the equipments required to be supplied by this company exorbitant rates quoted by him were accepted; (c) that by permitting an advertisement to be made for allotment of this contract only two papers were chosen which was against the recommendation made by the office of the Information Directorate; and (d) company in addition to M/s Surgicoin Mediquip Pvt Ltd who participated in the tendering process sponsored by the Surgicoin Mediquip Pvt Ltd as a result of which they quoted higher rates which facilitated the contract to be allotted to the said company; (e) in order to pursue the conspiracy to allot the contract to the said company accused Devendra Mohan issued a communication to all concerned soliciting the allotment of contract in favour of the company which was not the precedent followed by any agency of the State. It is specifically stated in the charge-sheet that these accused persons were in conspiracy with Dr. Pradeep Shukla. 3. Babu Singh Kushwaha, the then Minister, Family Welfare, Government of U.P., was the Minister Incharge Health and Family Welfare. It is alleged that in his capacity as Minister concerned he influenced the decision making process only after he was approached by the accused company to allot the work to it in June 2009. He is stated to have demanded 3 % commission for such allotment. Intrinsic feature of his conduct is that he abdicated his position as Ex-officio vice Chairman of the State Health Mission by not persuading the Chief Minister of the State to hold meeting of the State Health Mission. Despite the irregularities been brought to the notice of the concerned Minister he refused to act against the erring officials. His silence by in itself is sufficient indicator about his involvement in the said conspiracy. He is alleged to have received the amount from the representative of the company and only after its receipt he directed the Principal Secretary i.e. accused Pradeep Shukla to have this contract allotted to the UPPCL at the instance of Naresh Grover, MD of the company. Specific allegation relates to irregularities in up-gradation of 89 district hospitals as approved for the year 2010-11 under NRHM Scheme by way of supply of instrumentality of modular OTs and Acs. It is further alleged against him that the bribe amount was deposited as per instruction given to the bureaucrats. Bribe amount found its way into trust and companies owned and controlled by the applicant and his family members. He allowed R.P. Jaiswal to act as a front man in collecting the said amount. In the light of these allegations this Court is called upon to find out as to whether it is a fit case for quashing of the proceedings pending before the Special Judge, Anti Corruption. 17. I have heard Mr. U. Lalit, learned Senior Advocate assisted by Mr. Imran Ullah, Mr. Gopal Chaturvedi, Senior Advocate, assisted by Mr. Samit Gopal, Mr Sudeep Harkauli and Mr. Manish Goyal, Advocate appearing on behalf of accused applicants and learned AGA and Mr. Anurag Khanna, Advocate, appearing on behalf of the CBI and have perused the material on record. 17. I have heard Mr. U. Lalit, learned Senior Advocate assisted by Mr. Imran Ullah, Mr. Gopal Chaturvedi, Senior Advocate, assisted by Mr. Samit Gopal, Mr Sudeep Harkauli and Mr. Manish Goyal, Advocate appearing on behalf of accused applicants and learned AGA and Mr. Anurag Khanna, Advocate, appearing on behalf of the CBI and have perused the material on record. Section 482 Cr.P.C. invest this Court with power to prevent the abuse of the process of the Court or otherwise secure the ends of justice. This power cannot be exercised with regard to matters specifically covered by the other provisions of the Code. Ordinarily criminal proceedings instituted against the accused persons must be tried under the provisions of the Code. High Court would be reluctant to interfere with the proceedings at interlocutory stage. While analysing the provisions of the Code, Hon’ble Apex Court in R.P. Kapoor v. State of Punjab, AIR 1960 862, broadly laid down categories of cases where inherent provision to quash the criminal proceedings should be exercised, which are as under : 18. The following are some categories of cases where the inherent jurisdiction could and should be exercised to quash proceedings: (i) where there was a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the First Information Report or complaint did not make out the offence alleged; and (iii) where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge. It is within the ambit of these principles the Courts power to interfere at interlocutory stage can be exercised. Applying this principle to the present case it is to be seen as to whether the allegations levelled in the charge-sheet if taken on their face value and accepted in entirety do constitute an offence alleged and as to whether there is legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. Admittedly there is no legal impediment in continuance of the criminal proceedings in respect of the offence alleged. 19. In order to appreciate as to whether the allegations as contained in the charge-sheet do constitute cognisable offence for which accused are put to trial certain facts are required to be noted. Admittedly there is no legal impediment in continuance of the criminal proceedings in respect of the offence alleged. 19. In order to appreciate as to whether the allegations as contained in the charge-sheet do constitute cognisable offence for which accused are put to trial certain facts are required to be noted. Allegations levelled against all the accused persons are that conspiracy was hatched by the present applicants to award the contract to one M/s Sugicoin for supplying the modular OTs fitted with ACs. Starting point of the conspiracy was hidden intention to award this contract to the said company. Consequence of awarding this contract to the said company is that loss has been caused to the ex-chequer to the tune of crores. Decision making process relating to the allotment of the contract was found to be tainted with sole object of conferring the benefit on the company by accepting the bribe as quod pro quo. Following is the supportive legal evidence put forth by the prosecution against each accused. The evidence which has come in support of the allegations against each applicants is given herein below : (i) Babu Singh Kushwaha : At the relevant time it has come on record that he was holding the post of Minister for Health and Family Welfare in the State of UP. It has been averred that representative of the M/s Surgicoin Medequip Pvt Ltd. Girish Mallick and Manvendra Chaddha approached him for allotment of the said contract to the company on the pretext that they were already involved in the said company from the year 2005. They are said to have met the concerned Minister in the month of June 2009. The Minister demanded an amount of Rs. 3 % of the total contract amount for allotting the said work to UPPCL. An amount of Rs. 75 lacs was paid to the Minister. In this behalf statement of Manvendra Chaddha and Girish Mallick has been recorded by the Investigating Officer who have pin pointed the role of the said accused. In respect of the allotment of contract for up-gradation of 89 hospital it has come on record that the same was allotted to PACCFED. The background of allotting this work was that its proprietor namely Saurabh Jain has offered higher commission to the extent of 30 % of the contract value. In respect of the allotment of contract for up-gradation of 89 hospital it has come on record that the same was allotted to PACCFED. The background of allotting this work was that its proprietor namely Saurabh Jain has offered higher commission to the extent of 30 % of the contract value. The contract was awarded to PACCFED on its willingness to pay the bribe who were in league with Saurabh Jain. On the intervention of the M/s Surgicoin Medequip Pvt Ltd. the contract was allotted to M/s Surgicoin Medequip Pvt Ltd. on the promise of higher percentage of bribe been paid against what was offered by Saurabh Jain. It also appears that on non fulfilling of the commitment the contract was re-allotted to PACCFED who was in league with Saurabh Jain. In this behalf Rs. 2 Crores was paid to Sri R.P. Jaiswal on behalf of Sri B. S. Kushwaha, the then Minister. Statement of one Ritesh Kumar has also been recorded as witness. He admittedly was neither co conspirator nor co accused. Witness has stated that the amount collected by the then Minister and R.P. Jaiswal has been invested in various bogus firms created by the said two accused persons. This is the supportive evidence which has come against the then Minister Babu Singh Kushwaha. (ii) Dr. Pradeep Shukla : Legal evidence which has come in support of the allegations made against this accused person is as follows : (a) His decision to allot the work to UPPCL which is a construction company was objected by one Chanchal Tiwari an official of the department as the company did not have expertise in dealing with the equipments required to be used in the Hospital. The witness Chanchal Tiwari was working as Mission Director, NRHM, Lucknow. He has stated in his statement that in the meeting held on 17.6.2009 recommendation was made by Sri R.P.Yadav that the work allotted for up gradation of the hospitals may be awarded to an experienced and competent agency equipped with architectural and technical competence and latest construction equipments. It was also mentioned in clear term that none of the agencies from which proposals have been received during the meeting dated 17.6.2009, is having the aforesaid requisite competency to execute the said work as such decision may be taken to award the said work to an experienced agency like UP Rajkiya Nirman Nigam. It was also mentioned in clear term that none of the agencies from which proposals have been received during the meeting dated 17.6.2009, is having the aforesaid requisite competency to execute the said work as such decision may be taken to award the said work to an experienced agency like UP Rajkiya Nirman Nigam. In the said meeting it was also decided to recommend construction of 608 sub sub-centres to be awarded to UPPCL. (B) Role played by this accused and the manner in which the contract was allotted to UPPCL for up gradation of the 40 hospitals is clearly spelt out in the charge-sheet and documents appended thereto. Meeting was held under the chairman ship of Dr. Pradeep Shukla on 8.8.2009 which was attended by only Rajneesh Pandey an officiating Executive Engineer, Office of DG, FW, Government of UP and R.R. Bharti, DGFW. None of the members of the Executive Committee had participated in the meeting. Even though it is shown that members of the Executive Committee attended the meeting but the same has been belied by the statement made by the members of the said Executive Committee. It also appears that out of 19 members of the Executive Committee only 4 were shown to be present as per attendance sheet. Out of those four members one Lalit Verma, IAS the then Secretary Medical Health denied to have attended the said meeting and further three members have shown their ignorance regarding the allotment of contract to UPPCL as no such agenda was discussed relating to the said allotment. Even then the contract was allotted to UPPCL on 12.8.2009 by the said accused. In support of his contention, prosecution has examined Dr. Chandra Bhan Prasad acting as Director General, Family Welfare, Government of UP. He has stated that the procedure adopted in the Executive Committee for holding the meeting of NRHM, the said meetings were convened by then Principal Secretary Dr. Pradeep Shukla. He has stated that the meetings were convened in the conference hall of Pradeep Shukla. Agenda of items were circulated in the meeting itself. Agenda items were used and approved by the then Principal Secretary Pradeep Shukla in a mechanical manner and the participants had no opportunity to make any dissent. Pradeep Shukla. He has stated that the meetings were convened in the conference hall of Pradeep Shukla. Agenda of items were circulated in the meeting itself. Agenda items were used and approved by the then Principal Secretary Pradeep Shukla in a mechanical manner and the participants had no opportunity to make any dissent. The minutes of the meeting was never circulated amongst the members prior to signing of the same but the offices, who had to implement the decisions taken by then Principal Secretary, used to receive after 6-7 days the signed minutes, which included action plan also against each decided matter. Members were never asked to sign the minutes of the meeting and two three people of SPMU including the then Principal Secretary used to sign the same. He has further stated that he was not aware about the specification of the Modular OTs as no exercise in this regard was in progress. The then Principal Secretary Pradeep Shukla told me that he had discussion with Devender Mohan, MD, UPPCL in this regard and Devndera Mohan will send somebody to him with specification of Modular OTs. He was asked to approve the specification sent by Devendra Mohan. (c) For the purpose of allotting the contract for up gradation of 89 hospitals the contract was allotted to PACCFED on 13.7.2010 while ignoring the case for allotment in favour of UPPCL for construction of the said hospital. It is said that their work was not satisfactory, however, this decision was changed and the contract was allotted to UPPCL. Decision was again changed on 6.9.2010 by allotting the same to PACCFED. It is pertinent to mention here that an amount of Rs. 87.16 crores was transferred to the account of UPPCL by the DG, Family Welfare on 19.8.2010. This decision was revoked and the work from UPPCL was transferred to PACCFED. (iii) Devendra Mohan and Ravindra Rai : Allegations against these accused persons relates to the manner in which the decision to allot the contract to M/s Surgicoin Medequip Pvt Ltd. was taken. Following evidence has come against them: (a) Communication dated 7.8.2009 was sent by the accused Devendra Mohan addressed to Mission Director requesting him to award the contract for up gradation of 40 District Level Hospitals as per Indian Primary Health Centre. Following evidence has come against them: (a) Communication dated 7.8.2009 was sent by the accused Devendra Mohan addressed to Mission Director requesting him to award the contract for up gradation of 40 District Level Hospitals as per Indian Primary Health Centre. This letter is said to have not been dispatched from the office of MD, UPPCL nor was any receipt on the record of the NRHM. It was found in the office file of Programme Management Unit containing the endorsement made by S.K.Singh, the then GM (Admn), SPMU, NRHM and marked to DR. R. P. Yadav, the then GM (Construction), SPMU, NRHM. This letter was personally handed over by accused Ravindra Rai to to S.K.Singh. (b) work was assigned for facility survey to one M/s EPOS Indian Private Ltd by the accused Pradeep Shukla and Devendra Mohan and Ravindra Rai with intention to incorporate the concept of Modular OTs in the facility survey so as to include the same in the work of up gradation of District Level Hospital. Concept of Modular OTs was introduced to help the M/s Surgicoin Medequip Pvt Ltd. (c) Specification were prepared by Naresh Grover, who got the same prepared in such a way so as to derive maximum profit on those specification (d) Publication of tender was allowed to be done only in two news paper instead of four as instructed by the Director Information and Public Relations. (e) Price offered by M/s Surgicoin Medequip Pvt Ltd. of Rs. 74 lacs per one Modular OT Unit and AC Unit was accepted without surveying the market value of the same. 20. In support of his contention, prosecution has relied upon the statement of Sunil Dutt son of Jai Pal Singh, partner M/s Creative Engineers and Medical System. He has stated that he is manufacturer of Modula OT and Medical Gas Pipeline for last four years. His firm has successfully supplied/installed Modular OT in many hospitals including Caritas Hospital, Cochin, Indo Gulf Hospital, Noida, Niramaya Hospital, Delhi, Kalinga Institute of Medical Science, Bhubaneshwar, Synergy Hospital, Indore. He further stated that he was shown the specification of Modular OT and AC unit which were required to be installed in various hospitals in Uttar Pradesh. The rates quoted as Rs. 74,06,760 for one unit of Modular OT and AC unit was substantially higher as per his experience and knowledge. He further stated that he was shown the specification of Modular OT and AC unit which were required to be installed in various hospitals in Uttar Pradesh. The rates quoted as Rs. 74,06,760 for one unit of Modular OT and AC unit was substantially higher as per his experience and knowledge. One Unit of Modular OT and AC unit of the given specification should not have cost more than Rs. 25-26 lacs if the industry profit including overhead charges is included to the said cost it would be around Rs. 33-34 lacs only. He has given details and the reasons in support of his contention in the statement. The rate for Air Conditioning/Air Handling Unit of the given specification has been quoted @ Rs. 28.96 lacs per unit whereas the market/industry rate is around Rs. 10 lacs only. He further stated that out of the above, AHU of the given specification has been quoted @ of Rs. 12.55 lacs whereas the market/industry rate is about Rs. 3.5 lacs, Chiller unit of the given specification has been quoted at the rate of Ss. 12.30 lacs whereas the market/industry rate is around Rs. 3.75 lacs. This statement has been supported by Adhir Khanna son of Late B.N. Khanna, Director, M/s Alfa Air Technologies Pvt Ltd. In his statement he submits that he has successfully installed/commissioned Air Conditioning Units in operation Theatres, Biometric Labs also including the Metro Hospital, Noida and 36 District Level Hospitals in UP as a supplier of sub contractor of M/s Surgicoin Medequip Pvt Ltd. He submits that the rate quoted for the given specification of AC unit is Rs. 11,23,398/- being the total cost of each unit including supply, installation/commissioning and on site warranty for one year. He has further stated that his company has installed 36 Air Conditioning units to various district level hospitals in Uttar Pradesh as a sub contractor of M/s Surgicoin Medequip Pvt Ltd in the year 2010-11. Statement of Asheesh Srivastava son of Sri K.K. Srivastava, Architect, Partner M/s ANB Consultant has stated that he had set up his own office in the name and style of M/s ANB Consultants Architects Engineers, Interior Designers, Conservation Consultants. The functions of M/s ANB Consultants include consultancy for architecture, Interior Design and conservation field. Statement of Asheesh Srivastava son of Sri K.K. Srivastava, Architect, Partner M/s ANB Consultant has stated that he had set up his own office in the name and style of M/s ANB Consultants Architects Engineers, Interior Designers, Conservation Consultants. The functions of M/s ANB Consultants include consultancy for architecture, Interior Design and conservation field. He has stated in his statement that facility survey is a diverse nature of work and required multifarious knowledge and expertise and companies/firms having such multifarious proficiency are only competent to conduct such assignment. No agency or firm or individual is eligible/competent/appropriate or suitable for conducting the facility survey work which is an assorted nature of job unless that is having the said multifarious knowledge and experience. He further submits that the concept of the modular OT was neither studied during the facility survey nor it was suggested by any of the Chief Medical Superintendent during the period of conducting facility survey. A meeting was called by Devendra Mohan the then MD and Sri Ravindra Rai, GM, Commercial of UPPCL to discuss the issue of supply of Modular OTs. In the said meeting both Devendra Mohan and Ravindra Rai instructed all the participants i.e. representative of EPOS India, other Architects and Firms involved in the work of conducting facility survey of the hospitals, to include the provisions of Installation of the Modular OT in all the District Level Hospitals. It was further suggested by Devendra Mohan the accused that the budget allocated for this purpose is approximated one crore per modular OT and he suggested that the tentative cost of the Modular OT and AC units can be estimated and recommended below one Crore. As per instruction of Devendra Mohan, the concept of Modular OT was incorporated in all the facility survey reports. This witness has further stated in his statement that he was asked by accused Ravindra Rai, GM, UPPCL to prepare and send the technical specification vide letter dated 11.2.2010. Therefore, it was clear that this witness was not competent to prepare the same. Both the accused Devendra Mohan and Ravindra Rai made available the technical specification to this witness and asked him to sign the same and return to them which was done under influence of these accused persons. Therefore, it was clear that this witness was not competent to prepare the same. Both the accused Devendra Mohan and Ravindra Rai made available the technical specification to this witness and asked him to sign the same and return to them which was done under influence of these accused persons. He has further stated that accused Ravindra Rai informed him that the specification was obtained by one Naresh Grover of M/s Surgicoin Medequip Pvt Ltd. 21. Other witnesses have also deposed against the accused persons, which is not being detailed for the sake of brevity as prima facie there is sufficient legal evidence to support the allegations levelled in the FIR. I say so for the following reasons : (a) Statement of witnesses discussed herein above clearly shows that involvement of accused persons in first procuring the contract in favour of UPPCL and then allotting to PACCFED for a consideration; (b) Manner in which the contract was allotted by accused Pradeep Shukla to UPPCL in its meeting on 12.8.2009. (c) Rates approved for supplying the OT without first obtaining the market value of the equipments. (d) Providing specification of the OT Modular unit without getting expert opinion on it. (e) Collecting higher price for AC unit when supplier himself admits that he had quoted rate of Rs. 12 lacs per unit to M/s Surgicoin Medequip Pvt Ltd.. (f) The manner in which the then Principal Secretary Pradeep Shukla allotted the work initially to PACCFED and consequently allotted the same work to UPPCL and again re-allotted the same to PACCFED. (g) The process to allot the contract to M/s Surgicoin Medequip Pvt Ltd. is initiated only after representative and the owner of the company met the then Health and Family Welfare Minister Babu Singh Kushwaha seeking its allotment on payment of 3 % of the total work. (h) Initially allotment of contract to PACCFED for up-gradation of 89 Hospitals but subsequently allotment to UPPCL and then reallotted to PACCFED; (i) Higher offer of 35 % of the contract value as bribe to Sri Pradeep shukla and Babu Singh Kushwaha by Saurabh Jain results in allotting this contract back to PACCFED on 6.9.2009. (j) In up-gradation of 134 district hospitals, exorbitant rates were given by accused B. N. Srivastava, which was five times higher than the market value. Items which were supplied was done without consultation of the District Hospitals. 22. (j) In up-gradation of 134 district hospitals, exorbitant rates were given by accused B. N. Srivastava, which was five times higher than the market value. Items which were supplied was done without consultation of the District Hospitals. 22. These are the circumstances and facts as are revealed and supported by evidence. It is premature at this stage to conclude that there was no conspiracy hatched by these accused persons in this case. I am not inclined to agree with the learned counsel for the applicant accused that on the principle laid down by the Hon’ble Supreme Court no case is made out at this stage so as to allow the proceedings to continue before the Trial Court. Second aspect of the matter as contended by learned counsel for the applicants is that the evidence which has come on record both oral or documentary is not legally admissible. In order to appreciate this argument, Mr U. Lalit, Senior Advocate, appearing for the accused applicants has laid thrust on the following issues. (i) That it is on the basis of the testimony of Girish Mallick and Manvendra Chaddha that the whole web of conspiracy has been woven by the prosecution. He submits that these persons were arrayed as accused in the FIR but consequently they were deleted and listed as prosecution witnesses without first obtaining the parodon under Section 306 Cr.P.C. (ii) That the accused has no role in allotting the work to UPPCL as the decision was taken by the then Principal Secretary, Pradeep Shukla. (iii) The decision to select the consultants for conducting the facility survey was taken by the field officers of UPPCL and they directly submitted report to DG, Family Welfare. (iv) that the accused had first time introduced the process of inviting tender for supplying of the units. Tender documents were approved by the DG, Family Welfare. (iii) The decision to select the consultants for conducting the facility survey was taken by the field officers of UPPCL and they directly submitted report to DG, Family Welfare. (iv) that the accused had first time introduced the process of inviting tender for supplying of the units. Tender documents were approved by the DG, Family Welfare. (v) The contract was allotted to lowest bidder i.e. M/s Surgicoin Medequip Pvt Ltd. So far as the first contention relating to placing reliance on the statement of Girish Mallick and Manvendra Chaddha is concerned, it can be said that, without taking into consideration the statement of the said witness, prima face role of present accused persons is visible for the following reasons : (a) Tendering process undertaken by the MD and allotting it on rates which were exorbitant is fully supported by the evidence which has been discussed herein above. Statement of Adhir Khanna as discussed herein above, who supplied the AC unit clearly stated that he had quoted the rate of RS. 12 lacs per unit. (b) Market value of both the unit as stated by Sunil Dutt clearly shows that costs of both the unit was not more than Rs. 34-35 lacs. (c) Statement of S.K. Singh, that communication dated 7.8.2009 was personally handed over by Ravindra Rai, GM seeking allotment of work in their favour. It is also pertinent to mention that dispatch number affixed on the said letter relates to some other documents and not of the letter dated 7.8.2009. This by in itself is sufficient to identify the role of the accused persons even if at this stage the statement of Girish Mallick and Manvendra Chaddha is ignored. 23. Mr Manish Goyal, Advocate, appearing on behalf of the applicant namely Babu Singh Kushwaha contends that no independent discretion was given to the accused to take a decision with respect to grant of contract, identification of the suppliers or movement of funds or distribution of funds as a result no decision could have been taken by him in this behalf. Mr Manish Goyal, Advocate, appearing on behalf of the applicant namely Babu Singh Kushwaha contends that no independent discretion was given to the accused to take a decision with respect to grant of contract, identification of the suppliers or movement of funds or distribution of funds as a result no decision could have been taken by him in this behalf. He further submits that from the memorandum of understanding it is evident that applicant could not have influenced any bureaucrat or executive in as much as the signatory to the policy decision was the Chief Minister of the State in the capacity of the Chairman of the State Health Mission and whatever orders were to be complied with were directly issued by the Chief Minister of the State. There is no evidence to the fact that applicant ever Chaired the meeting of the State Health Mission and commanded the bureaucrats to implement his decision. He further submits that CBI is silent on the role of Chief Minister and other Ministers. He contends that in terms of the direction issued by Division Bench of this Court a direction was issued to the CBI to hold preliminary inquiry for the year commencing 2005-06 till date but the CBI has confined itself only to a particular period of time while as ignoring the role of other ministers who were in-charge of the department prior to accused Babu Singh Kushwaha. 24. He further submits that the identification of the projects and its implementation was collective decision by the State Health Mission with the seal of the Chief Minister. He placed reliance on the statement of Girish Mallick who happens to be an accused in the preliminary enquiry as well as in the FIR cannot be relied upon. Such evidence cannot be read against the applicants. In order to place reliance on the statement of Girish Mallick, it was for the prosecution to have obtained pardon in view of Section 306 Cr.P.C. but no such pardon has been obtained. Reliance has been placed on the statement of Ritesh Kumar, who was neither a conspirator nor co-accused. His statement was recorded only to corroborate the documentary evidence collected by the CBI relating to investment of the funds that is alleged to be bribe money given under the NRHM. Reliance has been placed on the statement of Ritesh Kumar, who was neither a conspirator nor co-accused. His statement was recorded only to corroborate the documentary evidence collected by the CBI relating to investment of the funds that is alleged to be bribe money given under the NRHM. Such statement of Ritesh Kumar cannot be read in evidence by virtue of Section 94 of the Indian Evidence Act. 25. He further submits that number of documents submitted with the supplementary charge-sheet which have been annexed with the supplementary charge-sheet is to establish the investment of funds collected as bribe by the applicant and the same being parked in various trusts and companies owned by the applicant and his family members. It is contended that the documentary evidence discloses that such investment is much after the period of conspiracy. 26. Now coming to the first contention raised by the learned counsel for the applicants that a direction was passed by the Division Bench of this Court wherein CBI was directed to conduct preliminary inquiry in the matter of execution and implementation of the NRHM funds from the period 2005-06 on wards. However, CBI has not conducted any preliminary enquiry starting from 2005-06. It has confined itself to a particular period. The CBI while initiating the preliminary inquiry and registering the FIR against the accused applicant has confined itself only to the role played by the implementation agencies which is the executive council and the Minister and other bureaucrats of the State of Uttar Pradesh. However, investigation is primarily silent on the role of the said State Health Mission as already indicated herein above, State Health Mission was to supervise, monitor and guide the implementation of the Mission in the State and was also required to meet at least once every six months for the purpose. Release of funds was to be determined by the State Health Mission. Distribution and release of funds was exclusive domain of the State Health Mission. Executive Committee of the Society was only to implement disbursement of funds thereafter. Thus the investigation is absolutely silent on the question as to whether there was any control exercised by the State Health Mission in the implementation of the NRHM scheme in its true prospective more particularly disbursement of funds and its utilization. Executive Committee of the Society was only to implement disbursement of funds thereafter. Thus the investigation is absolutely silent on the question as to whether there was any control exercised by the State Health Mission in the implementation of the NRHM scheme in its true prospective more particularly disbursement of funds and its utilization. Under whose direction, the funds were issued in the present case is also not forthcoming in the investigation. This fact was required to be probed by the CBI which has not been done. Whether the said State Health Mission was reconstituted and whether any meeting was held as provided by Memorandum of Understanding is also not visible. While examining the contention of the learned counsel for the applicants it is clearly visible that a direction was issued by the Division Bench of this Court to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of UP and to register a regular case. 27. Even though large scale irregularities were detected in the implementation of the NRHM scheme no decision was taken to register FIRs in this case. It is only after the intervention of this Court that the enquiry was initiated. These are some features and grey areas where no light has been thrown by the CBI even though direction was issued by the Division Bench of this Court. It clearly appears that selective investigation has been conducted by the CBI in the matter. Direction of the Division Bench has not been complied in its entirety. Irregularities which have been detected not only in the implementation of the scheme but the omission of the State to take prompt corrective measure even after being fully acquainted with the irregularities being committed in the utilization of NRHM funds. Role of most of the persons involved in the monitoring and implementation of the scheme has gone undetected. Broader compass of the conspiracy could have been unmasked. I am therefore of the view that the CBI is bound to carry out further investigation in the matter as directed by Division Bench of this Court in its order dated 15.11.2011. 28. Now coming to the second contention of Mr. Broader compass of the conspiracy could have been unmasked. I am therefore of the view that the CBI is bound to carry out further investigation in the matter as directed by Division Bench of this Court in its order dated 15.11.2011. 28. Now coming to the second contention of Mr. Goyal, learned counsel for accused Babu Singh Kushwaha whether the reliance can be placed on the evidence of Manvendra Chaddha and Girish Mallick who are said to be witnesses of demanding of bribe by the accused applicant in order to award the contract to M/s Surgicoin Medequip Pvt Ltd. It is not in dispute that the FIR does reveal that both of these persons were named as accused in the FIR. It was during investigation and after its conclusion that these two persons have been listed as witnesses of the prosecution. 29. Question that calls for consideration at this stage is as to whether the persons who are named in the FIR as accused can be listed as witnesses of prosecution after the conclusion of investigation. Section 161 Cr.P. C. provides for Examination of witnesses by police, which reads as under : (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case Put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. The import of the section clearly indicates that the police officer can examine any person who is supposed to be acquainted with the facts of the case. At this stage, there are no limitations imposed upon the Investigating Officer to examine any persons which may include a person who is suspected accused also. The import of the section clearly indicates that the police officer can examine any person who is supposed to be acquainted with the facts of the case. At this stage, there are no limitations imposed upon the Investigating Officer to examine any persons which may include a person who is suspected accused also. To be a witness from functional angle is to impart knowledge in respect of relevant facts i.e. precisely purpose of questioning the accused under Section 161 Cr.P.C. At this stage, the Investigating Officer is only to collect the evidence from a person who is acquainted with the facts of the case. There is no dichotomy at this stage between the accused and a witness. The only limitation placed herein is that the persons is not bound to answer all questions relating to such case put to him by such officer other than the question, answer to which would have a tendency to expose him in a criminal charge. 30. At the time of initiation of investigation and recording of statement under Section 161 Cr.P.C. the Investigating Officer is in the process of collecting material which throws light on the commission of the offence irrespective of the fact whether any body has been named as accused in the FIR or not. Investigation proceeds in dark alley and it is only after collecting the material dichotomy between the accused and witness is determined. Although, both Girish Mallick and Manvendra Chaddha are initially shown as accused in the FIR but after investigation it was found that there role was not of conspirator. They were acting on behalf of their Principal employer. It is not in dispute that both of them had approached accused persons on behalf of Managing Director of the Company Mr. Naresh Grover to procure the contract. Their statement under Section 161 Cr.P.c. has been recorded and the admissibility and the reliability of the evidence can be checked only during the course of trial. 31. It is also important to note Section 170 Cr.P.C which provides that if upon conclusion of the investigation it appears to the Officer Incharge of the Police Station that there is sufficient evidence or reasonable grounds as aforesaid such police officer shall forward the accused under custody to a Magistrate empowered to take cognisance. 31. It is also important to note Section 170 Cr.P.C which provides that if upon conclusion of the investigation it appears to the Officer Incharge of the Police Station that there is sufficient evidence or reasonable grounds as aforesaid such police officer shall forward the accused under custody to a Magistrate empowered to take cognisance. Section also provides that after the conclusion of the enquiry the Investigating Officer shall forward the accused to Magistrate provided there is sufficient evidence or reasonable ground to put him into trial. Therefore, it is the satisfaction of the Investigating Officer to conclude as to who is to be impleaded as accused based upon the evidence which is collected during investigation. 32. Conclusion of investigation reflects that there is no sufficient evidence against these two witnesses to be impleaded as accused as such they have been listed as witnesses of prosecution which the Investigating Officer was competent to do. However, it is not to suggest that the conclusion of the Investigating Officer are to be accepted by the Trial Court in its entirety. The Court will still have the power to examine the report as well as the material collected by the Investigating Officer and to find out the role of person involved in the commission of the offence. Any person who has been let out at the stage of the presentation of the charge-sheet can still be arrayed as accused during course of trial if there is sufficient evidence against such person, however, this issue is to be decided at the stage of trial. 33. Contention of learned counsel for the applicant that since these two persons were named as accused in the FIR as such no reliance can be placed on their evidence to implicate the present applicant is not legally correct. Consequently, this will also answer the question that there is no requirement to seek pardon as required under Section 306 Cr.P.C. Section 306 Cr.P.C. contemplates tendering of pardon to accomplice, which reads as under : 306. Tender of pardon to accomplice. Consequently, this will also answer the question that there is no requirement to seek pardon as required under Section 306 Cr.P.C. Section 306 Cr.P.C. contemplates tendering of pardon to accomplice, which reads as under : 306. Tender of pardon to accomplice. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies to- (a) Any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952). (b) Any offence punishable with imprisonment, which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under sub-section (1) shall record- (a) His reasons for so doing; (b) Whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-section (1)- (a) Shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) Shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has, been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has, been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case. (a) Commit it for trial- (i) To the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) To a Court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. The import of the aforesaid provision clearly reflects that the before seeking pardon, person must be an accomplice. Accomplice is defined in Black’s Law Dictionary as one who knowingly, voluntarily and with common intent unites with the principal offender in the commission of the crime. He must be someone concerned or associates in commission of crime, partaker of guilt. Essential features of the this definition is that a person must have participated in the commission of crime. In the present case what is alleged against these two witnesses is that they have acted as representative of the Principal namely Naresh Grover, MD of M/s Surgicoin Medequip Pvt Ltd to procure the contract. There role at that point of time was to motivate the accused Babu Singh Kushwaha and Pradeep Shukla to allot this contract by offering bribe. Their role ceased after the process of allotment was under taken and the manner in which it was initiated. In the matter of allotment of the contract in favour of M/s Surgicoin Medequip Pvt Ltd their role is non existent. It is also admitted that they are not beneficiaries of the contract. The beneficiaries of the contract is the proprietor of M/s Surgicoin Medequip Pvt Ltd. Strictly speaking they cannot be said to be accomplice at this stage. Therefore, question of seeking pardon in the present case does not arise. Thus, it clearly reveals that tender can be granted to a person who is indirectly or directly privy to an offence meaning thereby that he has a common interest with the accused. Therefore, question of seeking pardon in the present case does not arise. Thus, it clearly reveals that tender can be granted to a person who is indirectly or directly privy to an offence meaning thereby that he has a common interest with the accused. It is only in such situation that the person can be granted pardon as accomplice/approver whether he is accomplice or not will depend upon the nature of evidence which has come in the matter. After the conclusion of the investigation, it is the Investigating Officer who is to determine as to whether a person is accomplice or a witness. It appears from the conclusion that the Investigating Officer has found that there was no common interests of these witnesses with the accused. Before declaring any person as accomplice the Investigating Officer has to conclude that person accused was privy to the offence committed. The Investigating Officer has concluded that the present accused persons is not a accomplice. Section 306 Cr.P.C. as such has no application. 34. In the present case, conclusion of the Investigating Officer are that there is no sufficient evidence to implead the present two witnesses as accused as such they have been listed as witnesses after their statement under Section 161 Cr.P.C. has been recorded. Last contention raised by learned counsel for the applicant is that number of documents which have been annexed with the supplementary charge-sheet in order to establish the movement of funds collected as bribe by the applicant and parked with various trusts and companies belonging to the accused and his family members are to said to have been deposited much after the period of conspiracy. Whether the funds have been deposited much after the period of conspiracy is an issue which is required to be determined at the time of trial even if it is assumed at this stage that the funds have been deposited much after the period of conspiracy. No presumption can be drawn at this stage that these funds are not procured through bribe. Fact remains that the funds have been deposited in the various accounts of trusts held either by the applicant Babu Singh Kushwaha or his family members. No presumption can be drawn at this stage that these funds are not procured through bribe. Fact remains that the funds have been deposited in the various accounts of trusts held either by the applicant Babu Singh Kushwaha or his family members. It may be important to note that the list of donors as reflected in the documents supplied by the learned counsel for the applicants in his written arguments, which have been made part of the record, show that the amount has been collected from 10.8.2010 onwards which is the period when the alleged conspiracy to allot the contract to M/s Surgicoin Medequip Private Ltd was in existence. It is admitted that the accused applicant was approached by the representative of the M/s Surgicoin Medequip Private Ltd in the month of June 2009 for allotment of the contract for the year 2009-10. Suggestion of the learned counsel for the applicant that since conspiracy had taken place some where in the month of June 2009 and the funds have been deposited from August 2010 by itself does not discount the fact that such funds cannot be traced to the bribe received. This is an issue which is required to be determined at the stage of trial. 35. Last argument of Mr.Gopal Chaturvedi, learned Senior counsel assisted by Mr Samit Gopal, Advocate appearing on behalf of accused Pradeep Shukla is that the investigation in the matter has been taken without the approval of Central Government as provided under Section 6-A of the Delhi Special Police Establishment Act 1946. To appreciate this argument of the learned counsel for the applicant, Section 6-A of the Delhi Special Police Establishment Act 1946 is quoted hereunder : 6A. Approval of Central Government to conduct inquiry or investigation.—(1) The Delhi Special Police Establishment shall not conduct any enquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to- (a) the employees of the Central Government of the Level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government Companies, Societies and local Authorities owned or controlled by that Government. (2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988.] According to the applicant, Section 6-A of the Act clearly contemplates that any enquiry against the employer of the Central Government of the level of the Joint Secretary and above, the previous approval of the Central Government is mandatory. It is contended that no such approval is granted by the Central Government in this behalf. 36. On the other hand, learned counsel for the CBI Mr. Anurag Khanna, contends that the preliminary investigation in the matter has been ordered by the Division Bench of this Court in PIL No. 3611 (MB) of 2011 in which direction has been issued to hold the preliminary inquiry and register the FIR if prima facie evidence is found against the accused. It is in terms of the direction issued by this Court that the preliminary enquiry was conducted and the investigation in the matter was initiated. 37. I have considered the respective arguments of the learned counsel for the parties. The direction issued by this Court under Article 226 of the Constitution cannot be restricted by Section 6-A of the DSPE Act. Direction to hold inquiry and register a regular case is clear exercise of power under Article 226 of the Constitution and cannot be restricted under Section 6-A of the Act as is sought to be done by the applicant. Reliance has been placed on the judgement of State of West Bengal v. Committee for Protection of Democratic Right, West Bengal, (2010) 3 SCC 571 , wherein it has been held as under : “....When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the Court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.” Import of the direction clearly mentions that the writ jurisdiction of the High Court cannot be fettered by statutory requirements of the Act and thus, the same argument will apply to Section 6-A of the Act as well. The contention raised before the Hon’ble Apex Court was that no prior approval was obtained from the State Government before holding the preliminary inquiry and registering the case. It is in the light of this, Hon’ble Apex Court has held that the restriction imposed by Section 6 will not restrict the power of the High Court in directing the registration of the case by the CBI without obtaining the prior approval/consent of the State Government. On the same parity it can safely be stated that the restriction imposed by Section 6-A of the Act cannot cause fetters on the power exercise by the High Court in directing the investigation. It may also be noted here that it is too late in the date to take up this plea as after the conclusion of the investigation sanction has already been accorded by the competent authority to prosecute the applicants. This has been done after examining prima facie material collected against the said accused. The object and purpose of seeking prior approval and sanction is intended to safeguard a public servant of the rank of Joint Secretary and above from vexatious prosecution. Once there is sufficient material collected after the conclusion of the investigation it cannot be stated that the present accused is being subjected to any vexatious prosecution at this stage. Section 6-A of the Act contemplates that no inquiry or investigation shall be conducted against the Central Government employee of the rank of Joint Secretary and above without prior approval of the Central Government. Section 6-A of the Act contemplates that no inquiry or investigation shall be conducted against the Central Government employee of the rank of Joint Secretary and above without prior approval of the Central Government. The word approval as defined in Black’s Law Dictionary means an act of conferring, ratifying, and sanctioning was done by another. Act of conferring or ratifying can be posterior to the actual act. Ratification of the act does not necessarily mean that it should precede the investigation; moreover, in the present case after submission of the charge-sheet sanction has already been granted after analysing the material in this behalf. 38. Now to sum up the question which is required to be determined is as to whether the facts disclosed in the charge-sheet points out commission of cognisable offence or not. In order to understand that at this stage the probability of the evidence is not required to be judged. All that is required to be seen is as to whether there is prima facie case against the accused or not. Material facts alleged in the charge-sheet must constitute substantive offence of which accused persons have been charged. From the aforesaid discussion, it clearly emerges that there was conspiracy hatched by the accused persons and in furtherance of that conspiracy all the accused persons have played their role as a result of which loss has been caused to State exchequer and gain to the accused persons. Supportive evidence prima facie establishes the role of the accused persons in committing the offence. It is not a case where the facts do not disclose the material facts which constitute substantive offence. In order to substantiate this plea, it is necessary to discuss as to whether the facts constituting substantive offence is made out or not in respect of the offences under Sections 120-B, 420, 467, 468 and 471 IPC alongwith Section 13(2) of the Prevention of Corruption Act read with Section 13(1)(d) of the Prevention of Corruption Act. It is clearly visible that the applicants have committed the offence as revealed from the facts stated herein above. 39. In order to find out as to whether the charge-sheet reveals material facts which constitutes substantive offence. As already stated herein above starting point of conspiracy was an intent to award contract to the company. It is clearly visible that the applicants have committed the offence as revealed from the facts stated herein above. 39. In order to find out as to whether the charge-sheet reveals material facts which constitutes substantive offence. As already stated herein above starting point of conspiracy was an intent to award contract to the company. Thrust of the prosecution case is that web of conspiracy was woven by the accused persons to confer this benefit on M/s Surgicoin Medequip Pvt Ltd. Criminal Conspiracy is defined under Section120 A IPC which is quoted hereunder : “120A—When two or more persons agree to do. or cause to be done,— (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof”. 40. Hon’ble Apex Court in Ram Narain Poply, Pramod Kumar v. Central Bureau Of Investigation, AIR 2003 SC 2748 , has observed as under : “the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecute on because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the provisio to Sub-section (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in Section 120B. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offences which continues to subsists till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B of the Indian Penal Code.” Applying the aforesaid decision in the present case, it is to be seen that the essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The actus rues in a conspiracy is the agreement to execute the illegal conduct, not the execution of it, it is not enough that two or more persons pursued the same unlawful object at the same time or in the same place: it is necessary to show a meeting of minds, a consensus to affect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other. In the present case, the alleged conspiracy is said to have been put into practise firstly by contacting the accused Babu Singh Kushwaha and Pradeep Shukla for allotment of the work to the company namely M/s Surgicoin Medequip Private Ltd. Starting point of conspiracy is in June 2009 when the representative of the said company approached these two accused persons. Thereafter process for allotment of contract is put into shape which ultimately concluded in allotting this contract to the said company. It is not merely meeting of mind but putting into practise actual contours of the conspiracy by allotting this contract to the said company. Resultant effect as alleged in the charge-sheet is that on account of allotment of contract accused persons have conspired as a result of which loss in crores has been caused to exchequer. It is not necessary that there has to be a proof of overt act of the said accused persons. Prima facie it is not appropriate at this stage to conclude that no overt act is attributable to the present accused persons as such they cannot be absolved of the charge under Section 120-B of the IPC. Consequence of this conspiracy are clearly reflected in the way contract has been allotted and the manner in which it has been manipulated which has resulted in loss to the exchequer in crores. 41. Consequence of this conspiracy are clearly reflected in the way contract has been allotted and the manner in which it has been manipulated which has resulted in loss to the exchequer in crores. 41. After having said so the facts as has been disclosed in the charge-sheet clearly reflects that as a result of allotting this contract to M/s Surgicoin Medequip Private Ltd bribe has been accepted by the accused persons which clearly brings the accused within the purview of Section 13(1)(d) of the P.C. Act which suggests that the public servant is said to have committed criminal misconduct by abusing his position as a public servant. 42. As already stated herein above, applicants have by misusing their official position have obtained for themselves pecuniary advantage in allotting this contract to the company. Insofar as Section 13 (1) (d) of the Act is concerned, the essential ingredients are (i) he should be a public servant (ii) he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) he should have obtained a valuable things or pecuniary advantage for himself or for any other person. In Section 13(1) (d), the word used is ‘’obtained’. The Apex Court in the case of C.K. Damodaran Nair v. Government of India, (1997) 9 SCC 477 , had the occasion to consider the word ‘obtained’ used in Section 5 of PC Act, 1947, which is now Section 13(1)(d) of the Act of 1988. It was held in para 12 thus: “12. The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused `obtained’ the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) - and not under Section 5(1)(c), (d) or (e) of the Act. `Obtain’ means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). `Obtain’ means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either `acceptance’ - or ‘’obtainment’” The core question that needs to be seen is as to whether prima facie there is sufficient legal evidence on record to bring home the petitioners within the ambit of Section 13 (1) (d) read with Section 13(2) of the Act. 43. From the facts as noted above, it would be seen that there was a clear well-designed and planed conspiracy to allot the contract in favour of M/s Surgicoin Medequip Pvt Ltd. and M/s S R J Infratech Ltd. This conspiracy was hatched by all the accused persons. There is prima facie evidence on record in the shape of statements of the witnesses which clearly shows that the accused have demanded their shares of bribe for showing favour to the firms M/s Surgicoin Medequip Pvt Ltd. and M/s S R J Infratech through its proprietor Saurabh Jain. 44. In State of M.P. v. Surendra Kori, (2012) 10 SCC 155 , Hon’ble Apex Court has held as under : “The High Court in exercise of its powers under Section 482 CrPC does not function as a Court of Appeal or Revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 CrPC, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material. We are of the considered opinion that in view of the magnitude of the crime, the number of documents alleged to have been executed fraudulently, the reports referred to in the charge-sheets and the involvement of the respondent etc. could be decided only if an opportunity is given to the prosecution. We are of the considered opinion that in view of the magnitude of the crime, the number of documents alleged to have been executed fraudulently, the reports referred to in the charge-sheets and the involvement of the respondent etc. could be decided only if an opportunity is given to the prosecution. The High Court, in such circumstances, was not justified in quashing all the First Information Reports and the charge-sheets in exercise of its powers under Section 482 CrPC.” 45. Further the Hon’ble Supreme Court in State of Andhra Pradesh v. Vangaveeti Nagaiah, 2009(12) SCC 466 , has held that at the time of framing of the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. 46. Hon’ble Supreme Court in Sushil Suri v. CBI, 2011 (5) SCC 708 , held as under : “Section 482 of the Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely: (i) to give effect to an order under the Cr.P.C.; (ii) to prevent an abuse of the process of Court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Though exercise of inherent powers would depend on the facts and circumstances of each case, but, the Court would be justified in invoking its inherent jurisdiction where the allegations made in the Complaint or Charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged. The exercise of inherent powers would entirely depend on the facts and circumstances of each case. The inherent powers should not be exercised to stifle a legitimate prosecution. The exercise of inherent powers would entirely depend on the facts and circumstances of each case. The inherent powers should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. The essential ingredient of the offence of criminal conspiracy, defined in Section 120A IPC, is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event, unless the Statute so requires, no overt act is necessary to be proved by the prosecution because in such a fact-situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub-section (2) of Section 120A IPC, then in that event mere proof of an agreement between the accused for commission of such crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. (See: Suresh Chandra Bahri v. State of Bihar11). “ Thus, from the aforesaid discussion, it cannot be said that the material facts disclosed in the charge-sheet do not disclose commission of cognizable offence. It is to be noted with caution that the Court at this stage is only to examine the prima facie evidence and not to analyse the probability of this evidence. Before parting with the judgement, a direction is required to be given to the trial Court to dispose of the case expeditiously by putting it on fast track. Mere filing of the charge-sheet by in itself would not meet the ends of justice unless trial in the matter is concluded expeditiously. In order to dispose of the matters where large scale misappropriation of the Government funds is alleged, State Government is required to take a decision of constituting new Special Courts to deal with these type of cases. Mere filing of the charge-sheet by in itself would not meet the ends of justice unless trial in the matter is concluded expeditiously. In order to dispose of the matters where large scale misappropriation of the Government funds is alleged, State Government is required to take a decision of constituting new Special Courts to deal with these type of cases. Direction is issued to the Chief Secretary for considering the constitution of special Courts to try these type of cases. Decision in this behalf be taken by the Government after examining number of cases which are pending before the the CBI Court at Ghaziabad. Let this decision be taken within a period of three months from the date certified copy of this order is received. I have also perused the list of witnesses which the prosecution intends to examine. As many as 384 witnesses have been listed in the charge-sheet which by in itself is sufficient indication that the trial is likely to be delayed. Trial Court in this behalf will examine the relevancy of the witnesses which have been listed in the charge-sheet and call only those witnesses which are relevant. However, this decision is required to be taken by the Trial Court after hearing the parties. In view of aforesaid discussion, I do not find any reason to interfere at this stage to quash the proceedings pending against the accused applicants. All the applications fail and are hereby dismissed. ——————