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2023 DIGILAW 1785 (ALL)

Grijesh Pandey v. State of U. P.

2023-07-25

RAJEEV MISRA

body2023
JUDGMENT Rajeev Misra, J. Order on the Criminal Misc. Modification Application No. nil of 2023. Heard Mr. Ashish Srivastava, the learned counsel for applicant, the learned A.GA. for State and Mr. Gyan Prakash, the learned Senior Advocate, Deputy Solicitor General of India assisted by Mr. Sanjay Kumar Yadav, the learned counsel representing opposite party-2 i.e. C.B.I. 2. Perused the record. 3. This modification application has been filed by applicant seeking modification of the order dated 21.11.2013 passed by His Lordship Hon'ble R. D. Khare, J. in above-mentioned bail application. For ready reference the order dated 21.11.2013 is reproduced herein-under:- " Heard learned counsel for the applicant, Sri Anurag Khanna, learned counsel for the opposite party no.2 and learned A.G.A. for the State respondent. It is contended by the learned counsel for the applicant that the applicant is the husband of Proprietor of M/s Jai Ganesh Traders, 2/33, Sector-B, Priyadarshani Colony, Sitapur Road, Lucknow. Learned counsel for the applicant has drawn attention of this Court to annexure-2 to the affidavit, which is the charge sheet dated 23.2.2012 and has referred to internal page 2 and has argued that as per the charge sheet, the then Chief Medical Officer, Dr. R.S. Verma was found involved in various irregularities in purchase of medicines as the indents were directly placed and handed over to the private firm M/s Jai Ganesh Traders, Lucknow by diverting the supply orders. The orders/indents were placed to M/s HAL and M/s IDPL, Lucknow but the same were diverted to the firm of the wife of the applicant. It is further argued that if any irregularities in the procedure was found, it was done by Dr. R.S. Verma, CMO and not by the applicant. Reference has also been drawn to annexure-3 and 4 to the affidavit, which are the certificates issued by M/s Hindustan Antibiotics Ltd. and M/s Indian Drug and Pharmaceuticals Ltd. certifying that M/s Jai Ganesh Traders is their authorized distributor to procure the orders, make the supplies and collect the payments on their behalf. Learned counsel for the applicant has further drawn attention of this Court to annexure-5 to the affidavit, which is the document of Bank showing that Mahendra Kumar Pandey is the authorized signatory of the firm M/s Jai Ganesh Traders. Learned counsel for the applicant has referred to paragraph no. Learned counsel for the applicant has further drawn attention of this Court to annexure-5 to the affidavit, which is the document of Bank showing that Mahendra Kumar Pandey is the authorized signatory of the firm M/s Jai Ganesh Traders. Learned counsel for the applicant has referred to paragraph no. 6 of the rejoinder affidavit and stated that the drug licence of the wife of the applicant was granted in the year 2002 and was renewed from time to time. It is further contended that there is nothing on record to show that the medicines, which were supplied by the firm of the wife of the applicant, was supplied on higher price and not on rate contract or any subs-standered medicines were supplied. After due supply of medicines, payment has been made, as such, there is no illegality or irregularity done by the applicant. It is further contended that the applicant is in jail since 2.9.2013 and if he is released on bail, he will not misuse the liberty of bail. Learned counsel for the opposite party no.2 has contended that under the NRHM scheme, procedure should be followed strictly for providing the medicines and for the purchase of medicines above Rs. One Lac, tender system should be adopted and in the present case tender system was diverted an indent was given to the firm of applicant in connivance and conspiracy of Dr. R.S. Verma, the then C.M.O., thus, it is contended that the applicant is not entitled for grant of bail. Learned A.G.A. has also opposed the prayer for bail. Perused the first information report as well as averments made in the application.. Without expressing any opinion on the merits of the case and considering the facts and circumstances of the case, let the applicant Grijesh Pandey involved in special case no. 13 of 2013 under Section 120-B read with Sections 409, 420, 467, 468, 471 IPC and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act police station C.B.I./STF, New Delhi pending before Special Judge, Anti Corruption, C.B.I. (NRHM), Ghaziabad be released on bail on her furnishing a personal bond and two local sureties each in the like amount to the satisfaction of court concerned subject to the conditions that he: 1.shall appear on the date fixed by the trial court; 2.shall not tamper with the prosecution evidence; 3.shall not pressurize the prosecution witnesses. In case of default of any of the aforesaid conditions, this bail order shall automatically stand cancelled. Order Date :- 21.11.2013 " 4. Learned counsel for applicant contends that subsequent to the order dated 21.11.2013, the applicant, who was enlarged on bail, complied with the conditions mentioned in the order dated 21.11.2013 inasmuch as he furnished his personal bond and two sureties of the same amount to the satisfaction of court below. Subsequent to the order dated 21.11.2013, one of the sureties, furnished by applicant namely Anil Kumar Chaturvedi, died. 5. According to the learned counsel for applicant, applicant is a permanent resident of District Deoria. The criminal proceedings giving rise to present modification application are pending at District-Ghaziabad. It is with great difficulty that some how or the other applicant could manage two local sureties. However, on date, it is virtually impossible for applicant to arrange another surety. He therefore submits that in view of above, the order dated 21.11.2013 passed by this Court be modified and conditions contained in the order dated 21.11.2013 that applicant shall furnish two local sureties be diluted. 6. Mr. Gyan Prakash, Senior Advocate, Deputy Solicitor General of India assisted by Mr. Sanjay Kumar Yadav, the learned counsel representing opposite party-2 i.e. C.B.I has vehemently opposed this modification application. He submits that the order sought to be modified by means of present modification application was passed on 21.11.2013. Present modification application has been filed after expiry of a period of more than nine years. Moreover, by virtue of the provisions contained in Section 362 Cr.P.C., this Court has no jurisdiction to modify the order dated 21.11.2013. Remedy of applicant is to approach this Court only after an order, adverse to the applicant, is passed by court below in exercise of jurisdiction under Section 447 Cr.P.C. He has also referred to the judgement of the Supreme Court in State of M. P. v. Man Singh (2019) 10 SCC 161 and on basis thereof he contends that once the bail application has been decided, this Court cannot reopen the case in the garb of jurisdiction under Section 482 Cr.P.C. He therefore contends that present applicant is misconceived and therefore liable to be rejected. 7. 7. It is well settled that court after passing an order on the bail application does not have the jurisdiction under the Code i.e. Cr.P.C. to modify its own order by virtue of the bar contained in Section 362 Cr.P.C. The issue is no longer res-integra and stands crystallized by the following judgements of the Supreme Court:- I. State Represented by Inspector of Police v. M. Murugesan (2020) 15 SCC 251 8. In view of above, this Court does not find any good ground to entertain the present modification application. The same is misconceived and is therefore liable to be rejected. 9. It is accordingly rejected.