Law does not expect instigation to be in a specific structure or that it should just be in words: High Court of Allahabad

Court No. 11 Case : CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U S 438 CR.P.C. No. 2922 Applicant : Dr. Rajeev Gupta M.D Opposite Party : State Of U.P. Thru. Sp Cbi Acb Naval Counsel for Applicant : Purnendu Chakravarty Counsel for Opposite Party : Anurag Kumar Singh Hon ble Krishan Pahal J 1. Heard Sri Purnendu Chakravarty learned counsel for the applicant and Sri Dharmendra Pratap Singh Advocate holding brief of Sri Anurag Kumar Singh learned counsel for the C.B.I 2. The present anticipatory bail application has been filed on behalf of the applicant in Criminal Case No.6921 Crime No. RC0062019A0008 under Sections 13(2) r w 13(1)(e) of PC Act 1988 and Section 109 IPC Police Station CBI ACB District Lucknow with a prayer to enlarge him on anticipatory Brief Facts: 3. The present case has been registered on the basis of a written complaint by Shri Anmol Sachan PI CBI ACB Lucknow dated 23 05 2019 against Dr. Sunita Gupta the then Sr. D.M.O. Northern Railway Divisional Hospital Charbagh Lucknow and her husband Dr. Rajeev Gupta Professor KGMU Lucknow U s 109 IPC & Section 13(2) r w 13(1)(e) of P.C. Act 1988. It is alleged in the complaint that Dr. Sunita Gupta the then Sr. D.M.O. Northern Railways Divisional Hospital Charbagh Lucknow was in possession of disproportionate assets to her known sources of income to the tune of Rs 1 80 96 585.33 during the period 01 01 2009 to 12 07 2016 which she can not satisfactorily account for. Dr Rajeev Gupta husband of Dr. Sunita Gupta also abetted the possession of assets disproportionate to known sources of income by Dr. Sunita Gupta 4. The investigation revealed that Dr. Sunita Gupta was posted as Sr. D.M.O. N.R. Division Hospital Lucknow up to October 2015. She was transferred to Modern Coach Factory Rae Bareli in same capacity wherein she joined on 16 11 2015 in compliance of Order No. 940E 1A Medical Officer dated 05 11 2015 DRM Lucknow. Since then she is serving in MCF Rae Bareli and staying in the Guest House of MCF Rae Bareli Occasionally she comes to Lucknow. Dr. Sunita Gupta retained Government Accommodation allotted to her at Lucknow with due permission from competent authority. While Dr. Sunita Gupta resided in Rae Bareli her husband Dr. Rajeev Gupta resided in her official residence at Type IV 24 Church Road Railway Colony Lucknow 5. During investigation of RC 006 2016 A 002 by Shri Anmol Sachan searches were conducted by Sh Sandeep Pandey PI CBI ACB Lko in presence of the CBI Team & independent witnesses at official residential premises of Dr. Sunita Gupta at IV 24 Church Road Railway Colony near Fatehli Chauraha Charbagh Lucknow on 12 07 2016. At the time of searches. Dr Sunita Gupta was posted at Rae Bareli. Her husband Dr. Rajeev Gupta was present in the official residence of Dr. Sunita Gupta 6. During the course of house search a Search List was prepared vide which total six items including documents and cash was seized. Two Steel Almirah were kept in the Drawing Room which were opened with the keys provided by Dr. Rajeev Gupta. The Almirah contained huge currency notes. Total Rs 1 59 00 000 were found in the Almirah. Enquiry was made from Dr. Rajeev Gupta about the source of money. He took the plea that the said cash has been earned by him through private practice. The plea taken by Dr. Rajeev Gupta was not found satisfactory. Hence the said amount was seized. In addition to Rs 1 59 00 000 an amount of Rs 70 700 was also found in the Steel Almirah which was left for their day to day expenditure. During searches various documents pertaining to investments by Dr. Sunita Gupta and Dr. Rajeev Gupta were found and seized vide Search List dated 12 07 2016 by Sh Sandeep Pandey the then PI CBI ACB Lko i.e. "List of Insurance Policies & FDs "List of NSC KVP" "List of SB A c detail and PPF A c Currency Notes Rs 1.59 00 000 seized vide Details of Currency Notes". In the said house of the wife of the applicant the house hold items articles a separate Inventory Memo was prepared annexed with the search list. In the Inventory Memo details i.e. date time cost of requisition mode of acquisition and details of items articles was noted. During the house search of Dr. Sunita Gupta a locker key of Locker No 203C Central Bank of India Alambagh Branch Lucknow was seized and the said locker was operated by Sh Atul Dikshit PI CBI ACB Lucknow in the presence of Dr. Sunita Gupta and independent witnesses and vide "Bank Locker Operation Cum Seizure Memo" dated 12 07 2019 amount of Rs. 9 43 000 was seized from the said locker. The I.O. of the present case seized relevant documents. recovered cash amount from Shri Anmol Sachan vide Handing Over Taking Over taking Memo 7. The pay details of Dr. Sunita Gupta and Dr. Rajeev Gupta for the check period were collected and relevant witnesses examined to prove their income Further Sh Sandeep Pandey PI CBI ACB Lko and his CBI team including independent witnesses to the search conducted on the official residence of Dr. Sunita Gupta were examined and they proved the Search List along with Inventory Memo dated 12 07 2016. Dr. Rajeev Gupta was present during the searches and was provided a copy of Search List dated 12 07 2016. They corroborated the seizure of Rs 1.59 crore from the official residential premises of Dr Sunita Gupta on 12 07 2016 along with other seized documents 8. During investigation the I.O. collected the records from various banks pertaining to accounts maintained by Dr. Sunita Gupta & Dr. Rajeev Gupta and examined relevant witnesses for ascertaining balance at the start of the check period and at the end of the check period. The I.O. also calculated the interest received in the account and balance in the account at the end of 9. The I.O. collected the records from School Colleges to prove the expenditures incurred by Dr. Rajeev Gupta & Dr. Sunita Gupta and recorded the statements of the relevant witnesses The I.O. collected the records from Post Offices to give the due benefit to accused regarding their income during the check period. The I.O. also collected the records from Post Offices to prove investments in the name of Dr. Rajeev Gupta & Dr Sunita Gupta during the check period and recorded the statement of relevant witnesses 10. On 12 07 2019 the CBI team in presence of independent witnesses had found & seized currency notes amounting Rs 1.59 crore from official residence of Dr. Sunita Gupta. At the time of searches Dr. Sunita Gupta was posted at Rae Bareli and not present in the house. The currency notes were kept in different shelves of almirah. A large number of envelopes of different shape size & colour were found in the almirah. The envelopes were opened & inside the envelopes currency notes of different denominations were found tied with rubber bands On the envelopes some details regarding cash in the envelope was mentioned. All the currency notes were taken out from a large number of different envelopes. Denomination wise the currency notes were segregated counted with the help of Currency Note Counting Machine. Thereafter denomination wise bundles were made & seized. The envelopes paper slips rubber band were not seized as the same were not required. Dr Rajeev Gupta had claimed that every envelopehad the paper slip containing details of the patient name along with the amount received by the individual patient and that the CBI team took the cash from the envelopes and taken the envelopes with slip and left rubber bands. However the CBI team stated that only Rs. 1.59 crore cash was seized and no such slip or envelope was taken seized by them. Hence accused Dr. Rajeev Gupta was having all the opportunity to keep the said envelops paper slips with himself in safe custody so that he might produce the same as documentary evidence in his defence as he has claimed that the said envelope paper slip were having details of patients and amounts received by him through private practice. This shows that the said envelopes paper slips were not having any information details of patients amount as claimed by Dr. Rajeev Gupta 11. Dr. Sunita Gupta has taken the plea that the amount of Rs 1.59 crore seized in the case has no relation with her and stated that as the amount was seized from the almirah of Dr. Rajeev Gupta he will inform the source. Applicant Dr. Rajeev Gupta had claimed during the searches that the recovered amount of Rs. 1.59 crore from the official residence of Dr. Sunita Gupta belonged to him earned by him through private practice. He was issued Orderto produce documents source showing income pertaining to recovery of cash amount of Rs 1.59 crore on 12 07 2016 12. In response to notice U s 91 Cr.P.C. applicant Dr. Rajeev Gupta stated that after marriage in 1993 he himself & his wife Dr. Sunita Gupta started a clinic at their residence at Mahanagar Mamta Mother & Child Care Center"). On 24 03 2000 they shifted to the Railway Quarter allotted to his wife and he was doing practice from there. Patients were coming to him for treatment of Cancer consultancy in emergency and he charged regular fees from the patients. He is paid by various Doctors owners of Nursing Home & patients for his professional advice wherein he treated cancer patients after office hours. He named such Doctors and Nursing Homes. The amount received from such practice always became a handsome amount every month He also visited some patients for their treatment. He attended Hepatitis B Immunization & Cancer Awareness Program in Lucknow in 2005 along with Dr. Uttam Tiwari who used to run NGO Research India. He gave consultancy to patients and earned money. He used to get large number of patients through this NGO for treatment of Cancer disease. Dr. Rajeev Gupta further named various Doctors and Hospital owners who sent him Cancer patients for consultation prescription of medicine test. chemotherapy radiation etc. and requested for their 13. The statements of the following witnesses were taken under Section 161 Cr.P.C. by the I.O.: a) Dr. Rakesh Mishra BSc MBBS MD."Urmila Hospital" Priyadarshani Colony Sitapur Road Lucknow b) Dr. Rajesh Yadav M.B.B.S. M.D. Managing Director Autar Hospital Diabetic & Trauma Centre adjacent Diamond Palace & Petrol Pump. Talkatora Road Lucknow c) Dr. Rukhsana Khatoon Managing Director "Rukhsana Medical & Trauma Centre 20 Deen Dayal Road Ashaarfabad d) Dr. Ishtiyaq Ahmed BUMS Managing Director "Star Hospital" Hardoi Road Tahseenganj P.S Thakurganj e) Dr. Maroof Ahmed R o 498 5KA Nawab ganj Barabanki f) Dr. Neeraj Tandon Prop. "Day Care Chemo Therapy Center" from 25 to 27 Vasundhara Complex Sector 16 Behind Easy Day Near Petrol Pump Lucknow 14. The aforesaid witnesses have stated that Dr. Rajeev Gupta attended patients in their hospital after office hours gave consultation prescriptions for medicines tests & also conducted Chemotherapy of the patients. If any patients treated by Dr Rajeev Gupta needed Radiation he helped in getting Radiotherapy treatment at KGMC for which patient made payments to KGMC Hospital. Dr. Rajeev Gupta received payments from patients for their treatment through the hospital staff. They furnished the estimated payments made to Dr Rajeev Gupta towards treatment of cancer patients done by him Dr. Uttam Tiwari who used to run NGO Research India could not be examined as he has already expired around 2015. Further Dr. Ranjeet Singh MBBS MS. S o S. P. Singh Managing Director "Amrit Hospital". Super Specialty Hospital & Trauma Center Gandhi Colony Kashipur Road Rudrapur Uttarakhand and Dr. Mahender Pal S o Sh Pritam Ram Ex MLA R o Vill Ami PO Gahluya PS Jahanbad Pilibhit U.P. on examination stated that they sent a large number of patients to Dr. Rajeev Gupta for their treatment of cancer and Dr. Rajeev Gupta took his consultation treatment charges on his own. Dr. Pankaj Agrawal M.S. FIAGES Managing Director "Rajchandra Hospital. 554 Ga 256 Damodar Nagar VIP Road Alambagh Lucknow also stated that Dr. Rajeev Gupta treated few cancer patients at his hospital. The above said Doctors were directed to furnish the documentary evidence pertaining to details of the patients treated in their hospitals clinic on their reference by Dr Rajeev Gupta. However they could not furnish any documentary evidence in this regard to prove the treatment of the cancer patients by Dr. Rajeev Gupta they expressed their inability to furnish the records of patient treatment sought for the period 2010 2016. The same being very old one and due to lack of storage area and Medical Council of India guidelines they are not required to maintain records of the period more than 3 years and as such the same is burnt destroyed 15. The applicant or any other person summoned examined during the investigation could not produce any valid documentary evidence in support of their statement or explanation offered by applicant that the total amount of Rs. 1.59 crore seized from the official residence of Dr. Sunita Gupta on 12 07 2016 was actually earned by applicant by indulging in private practice after office hours 16. In respect of the applicant the Sanction for Prosecution has been accorded by the competent authority and the same has been received vide Letter No. KGMU C 79 2021 dated 30 06 2021 issued by Lt. Gen. Bipin Puri. Vice Chancellor King George Medical University U.P. Lucknow for launching prosecution U s 109 IPC r w 13(2) r w 13(1)(e) of P.C. Act 1988 Rival Contentions: 17. Learned counsel for the applicant has stated that the applicant has been falsely implicated in the matter. The money recovered from his possession is his genuine and hard earned money. Learned counsel for the applicant has further placed reliance on the statement of various doctors which have been examined by the Investigating Officer during investigation who have categorically stated that the applicant used to treat various cancer patients in private and the money is a result of the said 18. Learned counsel for the applicant has further stated that the applicant is the Head of Department in K.G.M.U. Lucknow. In case the applicant is released on anticipatory bail he will not misuse the liberty of bail and the applicant is ready to cooperate in trial 19. Per contra Sri Dharmendra Pratap Singh Advocate holding brief of Sri Anurag Kumar Singh learned counsel for the C.B.I has vehemently opposed the anticipatory bail application on the ground that the accused has not appeared in court on summons The present application has been filed after the bailable warrants have been issued against the applicant. The sanction for prosecution has already been received and the charge sheet has been filed in court 20. Learned counsel for the CBI has further stated that the applicant is a radio therapist and in the said field of radio therapy no private practice is ever seen. The said field is a specialized field and is undertaken in large Institutions and the set up required for practicing in radio therapy goes to the tune of multi crores 21. Learned counsel for the applicant has failed to accord any tenable explanation for the recovered amount. He has further argued that the applicant is not authorized to take private practice as he is employed in a Government institution 22. The Apex Court in para 92.3 and 92.4 of Sushila Aggarwal and Others vs. Stateand Another reported in 2020) 5 SCC 1 has observed as under: 92.3. .....................While considering an applicationthe court has to consider the nature of the offence the role of the person the likelihood of his influencing the course of investigation or tampering with evidence likelihood of fleeing justiceetc The courts would be justified and ought to impose conditions spelt out in Section 437(3) Cr. PC are dependent on facts of the case and subject to the discretion of the court 23. In the case of P.S. Kirupanandhan Vs State Cri. A. No 3817 and Cri MP No. 82517 the Hon ble Madras High Court has rejected the submissions made by the accused applicant and decided that in DA cases the explanation offered by the accused must be supported with valid documentary evidences. Hence the explanation argument of the accused other person cited in defence is not tenable valid and lawful. The arguments tendered on behalf of the applicant are not based on concrete facts but are vague and general. The case is not fit for the anticipatory bail 24. The medical practitioner administer an oath at the time of convocation as provided by Indian Medical Association which is an extension of Hippocratic oath taken the world over. The oath is not merely a formality. It has to be observed and followed in letter and spirit. It is on these lines that the apex medical education regulator National Medical Commission has suggested that the Hippocratic oath be replaced by CHARAK SHAPATH during the convocation ceremony for graduates in medical services. The medical and legal fields are more a service than a profession especially the stream of oncology which deals with life and death 25. Corruption is a termite in every system. Once it enters the system it goes on increasing. Today it is rampant and has become a routine. Corruption is root cause of all the problems such as poverty unemployment illiteracy pollution external threats underdevelopment inequality social unrest. The menace has to be put to account. The offence is against the society. The Court has to balance the fundamental rights of the accused to the legitimate concerns of the society at large vis a vis the investigating agency. 26. The task of the Court is manifold. Firstly it has to ensure that there is no unwarranted misuse or abuse of process to encroach upon life and liberty of the applicant as enshrined under Article 21 of the Constitution. Secondly it has to seen that the Rule of law is followed and the administration of justice is not hampered the guilty is brought to book 27. In view of the above the present anticipatory bail application is dismissed Order Date : 25.2.2022

Summary: The Penal Code ends up being relevant regardless of whether the abettor is absent when the offence abetted is committed given that he has instigated the commission of the offence or has connected with at least one or more different people in a conspiracy to commit an offence and in accordance with that conspiracy, the case held by the High court of Allahabad through the learned bench by single bench: Hon’ble Krishan Pahal, J.In the matter of Dr Rajeev Gupta M.D. Versus  State Of U.P. Thru. Sp Cbi/Acb Naval  .[ CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 299 of 2022 ] of 2021 dealth with an issue mentioned above. The present anticipatory bail application has been filed on behalf of the applicant in Criminal Case No.690 of 2021, Crime No. RC0062019A0008, under Sections 13(2) r/w 13(1)(e) of PC Act, 1988 and Section 109 IPC, Police Station CBI/ACB, District Lucknow, with a prayer to enlarge him on anticipatory bail. The present case has been registered on the basis of a written complaint by Shri Anmol Sachan, PI/CBI/ACB/Lucknow, dated 23/05/2019 against Dr Sunita Gupta, the then Sr. D.M.O., Northern Railway (N.R.), Divisional Hospital, Charbagh, Lucknow and her husband Dr Rajeev Gupta, Professor, KGMU, Lucknow, U/s 109 IPC &amp; Section 13(2) r/w 13(1)(e) of P.C. Act, 1988. It is alleged in the complaint that Dr Sunita Gupta, the then Sr. D.M.O., Northern Railways, Divisional Hospital, Charbagh, Lucknow was in possession of disproportionate assets to her known sources of income to the tune of Rs 1,80,96,585.33 during the period 01/01/2009 to 12/07/2016, which she can not satisfactorily account for. Dr Rajeev Gupta husband of Dr Sunita Gupta also abetted the possession of assets disproportionate to known sources of income by Dr Sunita Gupta. Per contra, Sri Dharmendra Pratap Singh, Advocate holding the brief of Sri Anurag Kumar Singh, learned counsel for the C.B.I. has vehemently opposed the anticipatory bail application on the ground that the accused has not appeared in court on summons. The present application has been filed after the bailable warrants have been issued against the applicant. The sanction for prosecution has already been received and the charge sheet has been filed in court. Learned counsel for the CBI has further stated that the applicant is a radiotherapist and in the said field of radiotherapy, no private practice is ever seen. The said field is a specialized field and is undertaken in large Institutions and the set-up required for practising in radiotherapy goes to the tune of multi crores.