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Judgment
Barkat Ali Zaidi, J.—Both the above noted applications u/s 482, Cr. P.C. are being taken for consideration together because they arise from the same first information report. The prayer is that the case against the applicants should not be allowed to proceed.
The facts as given in the first information report are as follows:
To,
Station House Officer, Police Station Sector-20 NOIDA, District Gautambudh Nagar.
Sir,
That I Harish Chandra son of Shiv Ram, Originally Resident of Ahmad Nagar, Maldham Chand Colony No. 7 R.T.C. Hempur Gaushala district Nainital. On 1.12.1997, I had come to Delhi to a relative in the village in search of some job. At the bus stop of All India Medical Institute, one Babloo met me. He enquired about my worries and thereafter took me to N.M.C. NOIDA where in front of P.C.O, Babloo got me introduced to Akhilesh Yadav, Sanjai Policewala and Sushil Kumar Jha and went away. Akhilesh Yadav enquired from me, if I had any complaint of pain in any limb. I said I had pain in my backbone. Akhilesh Yadav then told me to introduce to a doctor tomorrow and after the treatment he will get a job for me. Akhilesh also informed that a vacancy was to fall out of Rana Jat, and I should, therefore, reveal my name as Balam Singh Rana son of Narendra Singh Rana, R/o Sundersheel Ram Nagar, district Nainital. On 2.12.1997 around 9 O''clock in the morning, Akhilesh Yadav took me to P.C.O. in front of N.M.C., where Sanjay and Sushil Kumar were present. After a while. Sri S. N. Shrivastava and a lady came by a car there. Akhilesh sent me alongwith them for medical check up inside the hospital where Dr. Wadhwan met me there and said that there is a small test, thereafter, he will have 2-4 tests more and that I will get a job thereafter Dr. Wadhwan, then sent me to Lal & Lal at Cannaught Place, where a test was performed on me. The tests were also performed on 3rd, 4th and 5th, 1997 and on enquiring Dr. Jauhari, Navin Chaudhary repeatedly said there is blood clotting in veins of my abdomen which is to be opened. On 3.12.1997, on some stamp papers of Rs. 10 and Rs 3 and on 7.12.1997 on 3 stamp papers of Rs 2 each my signatures were taken. On 6.12.1997, I was operated upon in the hospital wherefrom I was relieved on 12.12.1997 with a word by Dr. Wadhawan that my back bone will he heeled and I should come to the hospital after 7-8 days, for removing the bandage. Thereafter, I went to Akhilesh Yadav at the P.C.O., who gave me some money and said that after 7-8 days when I come, I will get employment. After 12-13 days, when I went to the hospital a nurse met me and asked if I had donated my kidney, then I realised that all these people had conspired to extract Kidney from my body, when I protested, I was threatened with a revolver. Thereafter, I went to the village and after seeing the news paper report, have come to lodge a report at Police Station Sector 20 NOIDA district Gautambudh Nagar. Justice be done to me after lodging the report.
Applicant (Harish Chandra) Son of Shiv Ram, Resident of Ahmad Nagar, Maldham Chand Colony No. 7 R.T.C. Hempur Gaushala district Nainital
The reason giving rise to these two applications u/s 482, Cr. P.C. is that an application was presented before the Chief Judicial Magistrate by the three doctors aforementioned for discharge but the learned Chief Judicial Magistrate rejected the same. He was of the view, that since there are two contradictory reports of the Investigating Officers and since he is only conducting the committal proceedings, it would not be appropriate for him, to discharge the accused at this stage.
Sri Gopal Swaroop Chaturvedi, senior advocate assisted by Sri R. C. Upadhyay advocate and Sri N. C. Tripathi, Additional Government Advocate for opposite party-State have been heard.
The first thing which may be noticed is that Dr. Sanjay Wadhawan was out of India, attending a conference at Manila Philippines from 2.1.1997 to 10.12.1997 while Dr. Navin Chaudhary was also out of India at London from 30.11.1997 to 5.12.1997. This is manifest from their endorsement and entries in their passports, which are, part of the case diary.
The operation of the complainant, according to the first information report is said to have taken place on 6.12.1997. The possibility of involvement of Dr. Sanjay Wadhwan in the matter, therefore, stands eliminated.
As regards Dr. Navin Chaudhary, it will be seen that though, he is a doctor, he is doing a job of a non-medical nature, and is only the manager of the hospital. As mentioned above, he was out from 30.11.1997 upto 5.12.1997, while the operation of the complainant took place on 6.12.1997. The allegation of the complainant in the first information report is to the effect that Dr. Navin Chaudhary met him on 2,3,4, and 5.12.1997 and told him that there is clotting of blood in his veins which needs to be removed and got his signatures affixed on stamp papers on 3.12.1997. Since the doctor was out of India from 30.11.1997 to 5.12.1997, all these allegations fall to the ground and are manifestly false and erroneous. It is, therefore, clear that Dr. Navin Chaudhary is being falsely implicated.
It was argued by Sri N. C. Tripathi, learned Additional Government Advocate for the State that the endorsements on the passports of the aforesaid two doctors are in the nature of alibi and an alibi is at best a mixed question of law and facts, and the benefit thereof cannot be taken by the accused in proceedings u/s 482, Cr. P.C., and the matter should be resolved after evidence has been adduced in the case.
All alibis are not alike. There are alibis and alibis. The endorsements of foreign travel on a pass port if categorized as an alibi are a different species. They have be accepted without, any external aid and without any evidence. Such evidence is of irrefutable character and should be acted upon straightaway. Continuation of criminal proceedings, even thereafter, would not only amount to harassment of the person concerned, but would also be an abuse of the process of law, and such evidence, even if treated as an alibi therefore, becomes a question of law, and can be taken into consideration in proceedings u/s 482, Cr. P.C.
There is as such clear and dependable evidence that these two doctors, i.e., Dr. Sanjay Wadhwan and Dr. Navin Chaudhary have been falsely implicated.
There are other circumstances in this case also, which militate against the veracity of the prosecution story as propounded by the complainant in the first information report. After the original Investigating Officer submitted a charge-sheet a further investigation by the permission of the Court was ordered by the police High Ups, and the Investigating Officer after a detailed investigation found, that the complainant was a cheat and had also entered Sir Ganga Ram Hospital, Delhi to donate his Kidney to one person and that he had changed his name for that purpose. He had also given an affidavit before a committee formed for supervising organ transplantation, to donate his kidney. The Investigating Officer found that the entire story formulated by the complainant was totally false and fictitious. The Investigating Officer further came to the conclusion that the complainant wanted to extract money from the doctors of the NOIDA Medical Centre and that is why he invented these lies. The Investigating Officer, therefore, submitted a report in the case for exonerating the accused-applicants.
It has also to be noticed that the complainant is now untraceable and his whereabouts could not be known, despite efforts, about which, there is counter-affidavit of the Investigating Officer on record. It is difficult to comprehend any progress in the case, since the complainant, around whom the whole prosecution story revolves is unavailable and will not be able to describe or endorse the prosecution story. The fate of the case can, therefore, be easily prognosticated.
It is also significant to mention here that the first information report was lodged almost 5 months after the incident.
It will, therefore, appear from the aforesaid circumstances that even with regard to the remaining seven accused, besides Sanjay Wadhwan and Dr. Navin Chaudhary, the prosecution case hangs with a very slender thread.
The counsel for Dr. Harsh Jauhari argued that his client was a doctor who has specialized only in grafting kidneys and not in extracting kidneys, and it is, therefore, clearly false to suggest that he was involved in removal of kidney of the complainant. This is a kind of argument which is to be taken into account alongwith other circumstances, and is by itself, not sufficient to warrant interference u/s 482, Cr. P.C.
We are, therefore, unable to accede to the request of Dr. Jauhari for discontinuation of the proceedings against him.
We did consider the possibility of quashing the entire first information report, but, we thought it more appropriate that since the committal proceedings are in progress and the case will naturally be committed to the Court of Sessions for trial, the learned Sessions Judge, will hopefully examine the entire spectrum of events, and circumstances thoroughly, and if he feels that the prosecution case is not fit enough to proceed, and is bound to end in fiasco, he may discharge the accused.
In consequence, we would terminate the proceedings with regard to Dr. Sanjay Wadhwan and Dr. Navin Chaudhary against whom, the prosecution version is found to be palpably false.
Both the petitions are disposed of accordingly.
A copy of this order be sent to Chief Judicial Magistrate, through the learned District Judge, NOIDA, Gautambudh Nagar for information and compliance. The case diary in a sealed cover be also returned there.