Dismissed

Dr Rakshit Kumar Alias Rachit Kumar Alias Rakshith Kumar v. the State of Jharkhand

Jharkhand HC20 Feb 2023Cr.M.P./193/2022

Case brief

AI extract

What is this about?

The single-judge Bench dismissed two criminal miscellaneous petitions seeking quashing of criminal proceedings and FIRs relating to alleged excessive charges and drug mismanagement during the pandemic, holding that the fact situation differed from a previously quashed case and a prima facie case existed.

What did the court decide?

Petitions filed to set aside criminal proceedings and FIRs were dismissed.

Dr Rakshit Kumar Alias Rachit Kumar Alias Rakshith Kumar… — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3015 of 2021

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------

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Dr. Om Prakash Anand .... .... …. Petitioner

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Versus

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The State of Jharkhand

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Drug Inspector, West Singhbhum, Seraikella Kharsawan

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.... .... .... Opp. Parties

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WITH

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Cr.M.P. No. 193 of 2022

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------

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Dr. Rakshit Kumar @ Rachit Kumar @ Rakshith Kumar

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.... .... …. Petitioner

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Versus

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The State of Jharkhand

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Drug Inspector, West Singhbhum, Seraikella Kharsawan .... .... .... Opp. Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioner : Ms. Pinky Anand, Sr. Advocate Mr. Rajiv Ranjan, Advocate Mr. Rajesh Ranjan, Advocate Mr. Nilesh Kumar, Advocate Ms. Sonal Sodhani, Advocate For the State : Mr. Pankaj Kumar, Special P.P. (In Cr.M.P. No. 3015 of 2021) Mr. P.D. Agrawal, Special P.P. (In Cr.M.P. No. 193 of 2022)

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------

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C.A.V. ON : 06.02.2023 PRONOUNCED ON: 20.02.2023

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Both these petitions have been heard together and will be disposed of by common order.

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Instant petitions have been filed to set aside the entire criminal proceeding as well as F.I.R. and order taking cognizance dated 01.12.2021 in connection with RIT P.S. Case No.129 of 2021 under Section 420 of the I.P.C. and Section 7 of Essential Commodities Act. Petitioner- Dr. Om Prakash Anand (accused No.1) was Manager and Controller of the hospital and petitioner- Dr. Rakshit Kumar @ Rachit Kumar @ Rakshith Kumar (accused No.2) was serving as Junior Doctor in the hospital.

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A complaint was received from Sweta Sah, Jyotsna Jha and Preeti Kumari by the Deputy Commissioner, Seraikella Kharsawan that the hospital of the petitioner during Covid pandemic, was making capital out of the miseries of people by charging excessively in treatment. The allegation also involved misbehavior by hospital authorities.

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After receipt of the complaint, a committee was constituted by Deputy Commissioner, Seraikella Kharsawan and hospital was asked vide

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letter dated 21.05.2021 and 04.04.2021 with regard to allocation of Remdisivir injection and details of its use including treatment chart. The requisite information were not furnished with respect to 122 vial Remdisivir injection that was allocated to the hospital in question following which the FIR was lodged by Drug Inspector.

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Petitioner- Dr. Om Prakash Anand was Manager and petitioner- Dr. Rakshit Kumar @ Rachit Kumar @ Rakshith Kumar was Junior Doctor in the hospital at the relevant time and it is claimed that they have been falsely implicated in the case because of personal vendetta as the life of the father of the complainant could not be saved. The plea for quashing of cognizance is based inter alia on the ground that the case is based on the complaint of Jyotsna Jha, who was informant in earlier RIT P.S. Case No.71 of 2021 with the same set of allegation and that case has been quashed by co-ordinate Bench of this Court in Cr.M.P. No.1914 of 2021.

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It is submitted by the learned counsel on behalf of petitioners that main allegation against this petitioners is that utilization certificate regarding the use of 122 vial Remdisivir injection was not furnished. In this regard, a letter was issued by Director, State Drugs Control Directorate, Jharkhand addressed to the informant who was the then Drug Inspector of Seraikella, wherein it has been stated that 122 vial Remdisivir injection were allocated on 18.04.2021 to 31.05.2021 to this hospital, the details of which was enclosed with the letter. The utilization certificate given by the hospital was uploaded on Amritvahini portal. It is submitted that the document issued by the competent authority completely falsifies the allegation that the certificates regarding the said drugs were not furnished by the petitioner.

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With regard to the other allegations of extorting huge amount in the name of treatment, no detail as such has been furnished in the F.I.R. On identical allegation of complainants namely Jyotsna Jha, Priti Kumari and Nidhi Jha and on same facts, earlier another complaint was made. Seraikella R.I.T. Case No.71 of 2021 was registered on 21.05.2021 under Sections 120B, 420, 304, 386, 354C, 34 of the Indian Penal Code against this petitioner- Dr. Om Prakash Anand, Dr. Rakshit and Sarita Anand, on the basis of written report lodged by Jyotsna Jha. It was for this reason that criminal proceedings on similar allegations have been quashed by the co-ordinate Bench of this Court in Cr.M.P. No.1914 of 2021.

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It is submitted in this regard that two F.I.Rs. cannot be lodged on

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same facts and on same allegation in view of ratio decided in the case Amit Bhai Anil Chandra Shah Versus Central Bureau of Investigation & Another; (2013) 6 SCC 348 .

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Lastly, it is submitted that this case is part of vendetta, since the petitioner had raised his voice of mismanagement during pandemic. 10. Learned A.P.P. has opposed the prayer and a counter affidavit has also been filed by the State. The main argument proceeds on the following lines. Firstly, the authority relied upon will not apply in the instant case as here the subject matter of both the FIR is different. The parties and the victims are the different. In the present case, informant is Drug Inspector whereas in the earlier case, informant was Jyotsna Jha. It is conceded by the learned A.P.P. that Jyotsna Jha and Nidhi Jha are the common complainant in both cases which had been quashed in Cr.M.P. No.1914 of 2021 and in the present case but the victim Preeti Kumari was not the complainant in the earlier case. Further, during investigation, the name of another victim has come up in para 16 of the case diary being Dr. Suchi Chaturvedi. It is submitted that allegation involved not only of furnishing of utilization certificate but charging exorbitant amount of Remdisivir from the patients. Price of this injection has been annexed which varied in the band Rs.899-Rs.3490 whereas the price of this medicine was charged at Rs.30,000/- which will be apparent from the complaint petition filed by Preeti Kumari dated 14.05.2021. It is submitted that at the stage of taking cognizance or its quashing only prima facie case is to be looked into and detail of invoice is to be taken into account.

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After having heard the rival submissions made on behalf of both the side, the main point for consideration is whether in the instant case FIR is based on identical fact situation so as to be hit by the ratio decided in State of Gujrat Amitbhai Anilchandra Shah Versus CBI ;2013 SCC(6)348 ? 12. Law on the point is settled in T.T. Antony v. State of Kerala; (2001) 6 SCC 181 that there cannot be second FIR and fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offence. Only information about a cognizable offence that is entered first in the Station House Diary by the Officer In-charge of the police station can be regarded as FIR. Officer in-charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences that are found to be committed in the course of the same transaction or the same

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occurrence and file more reports under Section 173 Cr.P.C. Law has been further developed in Shivshankar Singh v. State of Bihar; (2012) 1 SCC 130 that filing another FIR in respect of the same incident having a different version of events is permissible.

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In Md. Qayumuddin Khan Vs. State of Jharkhand ; 2016(4) JBCJ 311 (HC), it has been held that where the second FIR was lodged by Vigilance Department considering discovery of new factual foundations and larger conspiracy part, in such circumstance, the second FIR was held to be not illegal. The Court relied on Nirmal Singh Kahlon Vs State of Punjab and Others ; (2009) 1 SCC 441 wherein two FIRs were lodged, first at the instance of the State Vigilance and second by the CBI, the Apex Court held that the 2^nd FIR would be maintainable not only because there were different versions but when new discovery is made on factual foundations.

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What can be safely culled down from the above authorities is that the second FIR on same substratum or the similar fact situation is impermissible, but the interdict does not apply where the fact situations are different. 14. The present FIR dated on 24.07.2021 in connection with RIT P.S. Case No.129 of 2021 by the Drug Inspector, is based on the enquiry conducted under the orders of the Deputy Commissioner, on the complaint received from Sweta Sah, Jyotsna Jha and Nidhi Jha. The main allegation pertained to the patients being excessively charged for treatment and the staffs not properly behaving with the patients and attendants. After investigation, charge sheet was submitted and cognizance taken under Section 420 of the IPC and Section 7 of the EC Act.

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FIR in RIT PS Case No.71 of 2021 was instituted on the written report dated 21.05.2021 of Jyotsna Jha under Sections 120-B, 420, 304, 386, 354(c)/34 of the IPC in which charge-sheet was submitted under Section 420 of the IPC. The allegation involved black marketing in the life saving injection, medical negligence, excessive charge for treatment by Dr O.P. Anand, Dr Rakshit and Dr Sarita Anand. The entire criminal proceeding arising out of this case has been quashed by the co-ordinate Bench of this Court in Cr.M.P No. 1914 of 2021 in the light of the ratio decided in Jacob Mathew Vs State of Punjab; (2005) 6 SCC 1 that private complainant may not be entertained unless the complainant’s prima facie evidence before the Court in the form of a credible opinion given by another doctor in support of the charges of rashness.

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A bare perusal of the two cases shows that fact situation in both the cases are not identical although they arise out of seemingly common grievance of black marketing of life saving injection and excessive charge for treatment. RIT PS Case No.71 of 2021 was registered on a written report lodged by Jyotsna Jha, whereas RIT P.S. Case No. 129 of 2021 (present case) is based on a written report lodged by the Drug Inspector on the basis of an enquiry report conducted by the orders of the Deputy Commissioner. While in the former case, the main allegation was of medical negligence for which the proceeding was quashed by the order of this Court. In the present case, allegation is mainly about excessively charging for treatment and black marketing of drugs regarding which complaints were received from Jyotsna Jha and others by the Deputy Commissioner. The charges have been inquired into and on that basis, the present case has been lodged. Therefore, it cannot be said that both the FIR relate to the same fact situation. As discussed above, there is an interdict of initiating multiple criminal proceedings against the same accused on similar allegations, but that does not apply when the allegations are different as well as the victims/informants are also different. In this view of matter, the present criminal proceedings cannot be quashed on this ground.

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The other pleas that the petitioners have been framed as they had raised mismanagement by the Health Department pertain to the defence of the accused based on facts which cannot be looked into at this stage. Further, the petitioner claims to have submitted the utilization certificate with respect to Remidisivir injections to the Government, but that does not help, because the allegation in the present case is not about non-utilization of the injection, but of charging excessively due to shortage of supply and crisis situation prevailing at the time. This allegation is based on the enquiry report and the statement of witnesses which is sufficient to make out a prima facie case.

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Under the circumstance, I do not find any infirmity in the impugned

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order.

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These Criminal miscellaneous petitions stand dismissed.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated the 20^th February, 2023

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AFR / Anit

Dr Rakshit Kumar Alias Rachit Kumar Alias Rakshith Kumar v. the State of Jharkhand

Case brief

What is this about?

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Dr Rakshit Kumar Alias Rachit Kumar Alias Rakshith Kumar v. the State of Jharkhand

Case brief

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