# Ajay Mishra & Anr v. C.B.I

- **Citation:** (2025) 7 ILRA 657
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-07
- **Case number:** Crl. Misc. Application U/S 482 No. 28797 of 2024
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-mishra-anr-v-c-b-i-53626
- **Pages:** 30

## Headnote

u/s 482 of Cr.P.C. could be invoked to quash
charge-sheet and criminal proceedings at pretrial stage, when allegations made in First
Information Report and material collected
during
investigation
prima
facie
disclosed
commission of cognizable offence; Court was
required to examine whether continuation of
such proceedings would amount to abuse of
process of law and whether case fell within
limited parameters laid down by Supreme Court
for exercise of inherent powers.

Head Notes
Penal Code, 1860 - ss. 120-A, 120-B, 420,
471 - Prevention of Corruption Act, 1988 -
ss. 13 (2), 13 (1) (d) - Prevention of
Corruption (amendment) Act, 2018 - s. 7 -
Code of Criminal Procedure, 1973 - ss.
173(2), 239 - Pursuant to Court's order
dated 15.11.2011 in Writ Petitions No.
3611 (MB), 3301 (MB) and 2647 (MB) of
2011 (PIL), preliminary enquiry led to
registration of FIR dated 11.06.2014 at
CBI/STF, New Delhi against then MD of
Uttar Pradesh Electronics Corporation Ltd.
(UPLC),
Director
of
M/s
Infolink
Consultancy Service Pvt. Ltd., and other
unknown UPLC officials, for offences u/s
120-B IPC r/w 420 IPC and Section 13(2)
r/w 13(1)(d) of PC Act, alleging that
during 2009-10 they conspired to cause
pecuniary loss to Government in HMIS
project, resulting in wrongful loss of Rs.
2.4 crores - On basis of such material,
Investigating Officer submitted chargesheet
against
applicant,
whereafter
Magistrate took cognizance - Applicants,
Ajay Mishra (applicant no.1) and M/s
Infolink Consultancy Services Pvt. Ltd.
through its Director Ajay Mishra (applicant
no.2), moved application u/s 239 Cr.P.C.
seeking discharge - Similar applications
were filed by co-accused persons, all
discharge
applications
were
heard
together and rejected by common order,
whereafter charges were framed against
all the accused persons - Applicants
sought quashing of impugned orders.

Held
Every accused turns on its own facts and
evidence - Even one additional or different fact
and role of individual may make big difference
between conclusion in cases of other coaccused, because even single significant detail
may alter entire aspect - Considering overall
facts and CBI charge-sheet, the case of
applicant no.1, a private entity/vendor, stands
on a different footing from co-accused who, at
the relevant point of time, held official positions
in
NHRM
and
UPLC,
making
his
case
distinguishable - In view of facts, evidence
relied upon by CBI and charge-sheet against
applicants, criminal prosecution of applicants
amounts to abuse of Court's process, as no
offence is made out against them; accordingly,
impugned
orders
dated
02.03.2024
and
29.04.2024 are liable to be quashed and
applicants are liable to be discharged, in
accordance with principles laid down by Apex
Court in Union of India v Prafulla Kumar Samal
(infra), Dilawar Babu Kurane (infra), P.Vijayan
(infra) and Dipakbhai Jagdishchandra Patel
(infra). [Paras 18

## Text

_Characters 0–39,766 of 99,259. This is a partial read: ask again with offset=39766 for what follows._

7 All. Ajay Mishra & Anr. Vs. C.B.I.
657
would
proceed
independently
without
taking
findings
of
this
Court
into
consideration.
----------
(2025) 7 ILRA 657
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2025

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Application U/S 482 No. 28797 of
2024

Ajay Mishra & Anr. ...Applicants
Versus
C.B.I. ...Respondent

Counsel for the Applicants:
Sri Ram M. Kaushik, Sri Tanveer Ahmad (Sr.
Adv.)

Counsel for the Respondents:
Sri Rahul Srivastava

Issue for Consideration
Issue was whether inherent jurisdiction of Court
u/s 482 of Cr.P.C. could be invoked to quash
charge-sheet and criminal proceedings at pretrial stage, when allegations made in First
Information Report and material collected
during
investigation
prima
facie
disclosed
commission of cognizable offence; Court was
required to examine whether continuation of
such proceedings would amount to abuse of
process of law and whether case fell within
limited parameters laid down by Supreme Court
for exercise of inherent powers.

Head Notes
Penal Code, 1860 - ss. 120-A, 120-B, 420,
471 - Prevention of Corruption Act, 1988 -
ss. 13 (2), 13 (1) (d) - Prevention of
Corruption (amendment) Act, 2018 - s. 7 -
Code of Criminal Procedure, 1973 - ss.
173(2), 239 - Pursuant to Court's order
dated 15.11.2011 in Writ Petitions No.
3611 (MB), 3301 (MB) and 2647 (MB) of
2011 (PIL), preliminary enquiry led to
registration of FIR dated 11.06.2014 at
CBI/STF, New Delhi against then MD of
Uttar Pradesh Electronics Corporation Ltd.
(UPLC),
Director
of
M/s
Infolink
Consultancy Service Pvt. Ltd., and other
unknown UPLC officials, for offences u/s
120-B IPC r/w 420 IPC and Section 13(2)
r/w 13(1)(d) of PC Act, alleging that
during 2009-10 they conspired to cause
pecuniary loss to Government in HMIS
project, resulting in wrongful loss of Rs.
2.4 crores - On basis of such material,
Investigating Officer submitted chargesheet
against
applicant,
whereafter
Magistrate took cognizance - Applicants,
Ajay Mishra (applicant no.1) and M/s
Infolink Consultancy Services Pvt. Ltd.
through its Director Ajay Mishra (applicant
no.2), moved application u/s 239 Cr.P.C.
seeking discharge - Similar applications
were filed by co-accused persons, all
discharge
applications
were
heard
together and rejected by common order,
whereafter charges were framed against
all the accused persons - Applicants
sought quashing of impugned orders.

Held
Every accused turns on its own facts and
evidence - Even one additional or different fact
and role of individual may make big difference
between conclusion in cases of other coaccused, because even single significant detail
may alter entire aspect - Considering overall
facts and CBI charge-sheet, the case of
applicant no.1, a private entity/vendor, stands
on a different footing from co-accused who, at
the relevant point of time, held official positions
in
NHRM
and
UPLC,
making
his
case
distinguishable - In view of facts, evidence
relied upon by CBI and charge-sheet against
applicants, criminal prosecution of applicants
amounts to abuse of Court's process, as no
offence is made out against them; accordingly,
impugned
orders
dated
02.03.2024
and
29.04.2024 are liable to be quashed and
applicants are liable to be discharged, in
accordance with principles laid down by Apex
Court in Union of India v Prafulla Kumar Samal
(infra), Dilawar Babu Kurane (infra), P.Vijayan
(infra) and Dipakbhai Jagdishchandra Patel
(infra). [Paras 18 to 20] (E-13)

Case Law Cited
658 INDIAN LAW REPORTS ALLAHABAD SERIES
Dhariwal Tobacco Products Ltd. & Anr. v. State
of Maharashtra &. Anr. (2009) 2 SCC 370;
Prabhu Chawla v. State of Rajasthan & Anr. ,
(2016) 16 SCC 30; Asian Resurfacing of Road
Agency Pvt. Ltd.& Anr. v. Central Bureau of
Investigation, (2018) 16 SCC 299; Rajesh
Yadav & Another v. State of Uttar Pradesh
(2022) 12 SCC 200; P.K. Narayanan v. State
of Kerala (1995) 1 SCC 142; Dr. S. K. Singh v.
State of M.P & Ors CRR No. 2032/2015 (MP
HC); T Barai v. Henry AH Hoe (1983) 1 SCC
177; Md. Abdul Haque v. Srimati Jesmine
Begum Chaudhary 2012 SCC OnLine Gau
143; Ratan Lal v. State of Punjab AIR 1965 SC
444; Shyam Lal v. State AIR 1968 All 392;
Sundar Lal v. MCD 1970 6 DLT 445 (DEL
HC); Zile Singh v. State of Haryana (2004) 8
SCC 1; New India Assurance Co. Ltd v. C.
Padma & Anr (2003) 7 SCC 713; Sushila N.
Rungta v. Tax Recovery Officer (2019) 11 SCC
795; West U.P. Sugar Mills Assn. v. State of UP
(2002) 2 SCC 645; Union of India v. Prafulla
Kumar Samal (1979) 3 SCC 4; Dilawar Babu
Kurane v. State of Maharasthra (2002) 2 SCC
135; P. Vijayan v. State of Kerala (2010) 2
SCC 568; Dipakbhai Jagdishchandra Patel v.
State of Gujarat (2019) 16 SCC 547; Anil
Kumar Yadav v. State of U.P., application u/s
482 Cr.P.C. No. 40 of 2020, Interim stay
order dated 07.01.2020; Kaptan Singh v. State
of Uttar Pradesh, (2021) 9 SCC 35; Central
Bureau of Investigation v. A. Raja and others passed in
Criminal Misc. Application No. 1731 of 2020,
decided on 23.11.2020; State of Rajasthan v. Tejmal
Choudhary, 2022 LiveLaw (SC) 158 - relied on

Hridaya Ranjan Prasad Verma v. State of Bihar, (2000)
4 SCC 168; Mohammad Ibrahim and others v. State of
Bihar and another, (2009) 8 SCC 751 - referred to

List of Acts
Penal Code, 1860; Prevention of Corruption Act, 1988;
Code of Criminal Procedure Code, 1973.

List of Keywords
Charge-sheet; Cognizance; Investigation; Abuse of
process of Court; District Hospital; Prevention of
Corruption Act; Criminal conspiracy; Pecuniary loss to
Government
exchequer;
Discharge
application;
Computer hardware and hardware; Dishonest intention;
Framing of charge; Undue pecuniary advantage;
Charges framed; Without following tender process;
Wrongful gain; Fake tender documents; Public Servant;
Breached criminal trust; Wrongful loss of money;
Wrongful
gain;
Service
provider/private
vendor;
Proposed work quotation; Duly empanelled vendor;
Turnkey contractor; Bahraich Model; Undue favour; Nonpanelled and unregistered firm; Software development,
Turnkey projects and web development; Monitoring
committee; Allegations of demand or acceptance of
gratification by public servant.

Case Arising From
ORIGINAL JURISDICTION: Application U/s 482 No. -
28797 of 2024
From the Judgment and Order dated 02.03.2024 of
Court of Special Judge CBI, Ghaziabad in Special Case
No. 05 of 2017, arising out of Case Crime No.
RC/DST/2014/A/0014, New Delhi

Appearances for Parties
Advs. for the Applicant:
Ram M. Kaushik, Tanveer Ahmad Mir (Senior Advocate)

Adv. for the Opposite Party:
Rahul Srivastava
(Delivered by Hon'ble Sanjay Kumar Singh, J.)

Index

Contents

Page Nos.
•
Factual
matrix
of
the
case....................................................
...2-3
•
Contents
of
F.I.R...................................................
...............3-8
•
Chargesheet................................................
.......................8
•
Cognizance..........................................
........................... .8
•

 Discharge
Application....................................

..................... 8-9
7 All. Ajay Mishra & Anr. Vs. C.B.I.
659
•Charges.......................................
......................................9-12
•
Submissions
on
behalf
of
applicants....................................
.12-20
• Judgements relied upon on behalf of
applicants.............. ....20-21
•
Submissions
on
behalf
of
C.B.I..........................................
...21-30
• Judgements relied upon on behalf of
C.B.I..................... .....30-31
•
Discussion
of
relied
upon
judgments..................................
..31-48
•
Analysis..........................................
........................... ....48-58
•
Outcome
of
Analysis..........................................
...................59-60

ORDER

1- This application under Section 482 of the
Code of Criminal Procedure (hereinafter referred
as Cr.P.C.) has been filed by the applicants Ajay
Mishra and M/s. Infolink Consultancy Service
Pvt. Ltd. Lucknow through its Director, Ajay
Mishra for quashing of the impugned order dated
02.03.2024 passed by the Court of Special Judge
CBI, Ghaziabad in Special Case No. 05 of 2017,
arising
out
of
Case
Crime
No.
RC/DST/2014/A/0014 New Delhi under sections
120-B, 420 and 471 IPC & section 13 (2) r/w 13
(1) (d) of Prevention of Corruption Act, 1988,
police station CBI/STF, New Delhi, whereby
discharge application bearing No. 251 Kha under
Section 239 Cr.P.C dated 02.03.2024 of the
applicants has been rejected as well as the order
dated 29.04.2024 whereby charges have been
framed against the applicants.

2- Heard Mr. Tanveer Ahmad Mir, learned
Senior Advocate assisted by Mr. Ram M.
Kaushik, learned counsel for the applicants, Mr.
Rahul Srivastava, learned counsel appearing on
behalf
of
the
Central
Bureau
of
Investigation/opposite party at length and perused
the record.

Factual matrix of the case

3- Brief facts of the case, which are required
to be stated are that on the basis of preliminary
enquiry in pursuance of the order of this Court
dated 15.11.2011 passed in Writ Petitions No.
3611 (MB) of 2011 (PIL), 3301 (MB) of 2011
(PIL) and 2647 (MB) of 2011 (PIL), First
Information Report being RC/DST/2014/A/0014
dated 11.06.2014 was registered at police station
CBI/STF, New Delhi against Shri D.N.
Srivastava, the then Managing Director, Uttar
Pradesh Electronics Corporation Ltd., (UPLC),
Shri Ajay Mishra, Director, M/s. Infolink
Consultancy Service Pvt. Ltd. Lucknow and other
unknown officials of Uttar Pradesh Electronics
Corporation, Ltd Lucknow (UPLC) for the
commission of offences punishable under sections
120-B IPC r/w 420 IPC & section 13 (2) r/w 13
(1) (d) of PC Act, 1988 mainly on the allegations
that they entered into a criminal conspiracy during
the year 2009-10 with intention to cause pecuniary
loss to the Government exchequer in the matter of
implementation of HMIS, thereby they caused
wrongful loss to the tune of Rs. 2.4 crores.

Contents of First Information Report

4- In the F.I.R. it is alleged inter-alia that:-

4.1- The Executive Committee of
NRHM in its meeting held on 06.07.2009
under the Chairmanship of the then
Principal Secretary, Health, UP decided to
implement
Hospital
Management
Information System (hereinafter referred as
HMIS) by covering the computerization of
the hospitals in 15 districts of U.P. by
getting the work done through NIC or other
660 INDIAN LAW REPORTS ALLAHABAD SERIES
PSUs which were to be short listed. The
cost
approved
for
the
Project
Implementation Plan (PIP) in 2009 was Rs.
5.25 crores.

4.2- On 31.08.2009, Mr. Sanket
Verma, GM (MIS), SPMU, NRHM, in
compliance of the above decision dated
06.07.2009 of the Executive Committee of
NRHM, short listed 5 PSUs including UP
Electronic Corporation (hereinafter referred
as UPLC) and also mentioned that UPLC
had submitted a proposal on 19.08.2009 for
the work of HMIS in UP and finally under
NRHM,
U.P.
Electronics
Corporation
Limited
(UPLC),
was
engaged
to
implement this project.

4.3- On 17.08.2009, M/s U.P.
Electronics Corporation Limited (UPLC)
received a proposal from Shri Ajay Mishra,
partner M/s Large Info Solution, Lucknow
proposing for installation of HMIS at
different district hospitals based on the
project already running in district hospital
Bahraich, which was done by NIC in the
year
2006.
The
computer
hardware
configuration
and
software
used
in
Bahraich hospital were different from the
configuration given in the proposal by M/s
Large Info Solution.

4.4- Shri D.N. Srivastava, the
then Managing Director, UPLC instead of
processing the proposal in the file,
forwarded the said proposal to the Director
NRMH on 19.08.2009 on behalf of UPLC.

4.5- M/s Large Info Solution was
not an empanelled firm. Even though
UPLC had many firms having expertise in
supply and execution of works involving
computer
hardware/software
like
M/s
Odyssey,
the
firm
which
ultimately
supplied the computer hardware, no market
survey was conducted to ascertain the cost
of the computer hardware and software
proposed by the firm nor the empanelled
firm was contacted/considered.

4.6- The selection of the firm by
UPLC was in criminal conspiracy with Shri
Ajay Mishra as the proposal should have
been made from one of the empanelled
firms or after conducting market survey
and resorting to open tender having both
technical bid as well as commercial bid, as
the amount involved was Rs. 5.25 crores.

4.7- Subsequently, a letter was
written by M/s Large Info Solution to give
the said work to M/s Info Link Services
Pvt. Ltd., a company of Shri Ajay Mishra.
This company was also not empanelled
with UPLC, even though the request of an
non-empanelled
company/firm
was
accepted by UPLC for another nonempanelled company to execute the work.

4.8- On the instructions of UPLC,
M/s Infolink Consultancy Services Pvt.
Ltd., surveyed 15 districts where the work
was to be done to assess their requirements
on the basis of questionnaire filled by
CMOs. For this purpose, the company
charged Rs. 30,000 per hospital (total Rs.
4,50,000/-) from UPLC.

4.9- The officials of UPLC never
approached NIC for a proposal or to
ascertain the rates etc., whereas NIC had
established HMIS work at Bahraich,
District Hospital which was treated as the
basis.

4.10-The NRHM gave work
order for implementation of the said
computerization project in 15 districts on
04.03.2010 to UPLC for a total cost of Rs.
5.25 crores in which Rs. 2,81,50,065/- was
meant for hardware and Rs. 2,04,54,525/-
was meant for software and the remaining
Rs. 34,70,360/- was institutional charges of
UPLC for the work of HMIS. Further a
sum of Rs. 4,25,050/- was for the survey
done in 15 hospitals which was done by
M/s Infolink Consultancy Services Pvt.
Ltd. Even though no expenditure was
incurred for the survey done by M/s
7 All. Ajay Mishra & Anr. Vs. C.B.I.
661
Infolink Consultancy Services Pvt. Ltd.,
but the same was charged by UPLC from
NRHM.

4.11- The said work was to be
completed
within
8-10
weeks.
In
furtherance of the said criminal conspiracy
and to achieve the ulterior object, UPLC
deliberately delayed the project and waited
till the empanelment of M/s Infolink
Consultancy
Services
Pvt.
Ltd.
on
12.04.2010.

4.12- After that UPLC issued
order to M/s Infolink Consultancy Services
Pvt. Ltd., on 22.04.2010 without inviting
tender and ignoring all their empanelled
companies/firms- M/s. Odyssey and also
not following DGS&D rates.

4.13- M/s. Infolink Consultancy
Services Pvt. Ltd., which deals only in
software had purchased hardware from M/s
Odyssey which was an empanelled firm of
UPLC and they could have been given this
work of supplying hardware directly which
could have saved around Rs. 1 crore but
UPLC got it supplied through M/s Infolink,
a non-empanelled company with ulterior
motive to cause wrongful gain to said
company /themselves.

4.14-UPLC
had
purchased
computer of the same configuration on
19.12.2009 from M/s Odyssey at the cost of
Rs. 42,986/- whereas M/s Infolink after
purchasing computer from M/s Odyssey
had supplied the same at the rate of Rs.
57,143
to
UPLC
which
shows
a
difference/loss of Rs. 98,93,835/- (approx).
This difference will further increase since
two items namely, 150 Client Side Operative
System @ Rs. 6857/- as against the unit price of
Rs. 6250/- and 165 antivirus software charging
@ Rs. 165/- which otherwise is given free of
charge, were not found to have been supplied in
Ghaziabad hospital. Similarly, the other
hardware items were also supplied on
exorbitant rates by M/s Infolink Consultancy
Services Pvt. Ltd to hospitals with dishonest
intention in order to cause pecuniary loss to the
government. Thus, the total loss comes to Rs.
01 crore approximately in supply of hardware
items.

4.15- M/s. Infolink Consultancy
Services which executed the work, charged
around Rs. 2.4 crores for software development.
Had the work been allocated to NIC, the cost of
software development to the tune of Rs. 2.4
crores could have been saved, as the same had
already been developed by NIC for Bahraich
district hospital free of cost. This was not done
by UPLC with dishonest intention as well as in
furtherance of criminal conspiracy in order to
give undue pecuniary advantage to the said
company and corresponding loss to the
government.

4.16- M/s. Infolink Consultancy
Services Pvt. Ltd., deals in the software and it is
alleged that the company might have copied the
software from the pilot project of Bahraich
(originally developed by NIC) and with slight
update, they showed it as their own software.

Charge-Sheet

5- After culmination of investigation, the
investigating officer submitted report dated
30.06.2017 under Section 173 (2) Cr.P.C.
against nine accused persons namely D.S.
Srivastava, Ajay Mishra (applicant no.1), M/s
Infolink Consultancy Services Pvt Ltd through
its Director Ajay Mishra (applicant no. 2),
Pradeep Kumar Shukla, R.K Balani, Sanket
Verma, Dr Chander Bhan Prasad, Dr Rajender
Prasad and Dr Ram Narayan Rawat for the
offences u/s 120-B r/w Sections 420, 471
IPC and Section 13(2) r/w 13(1)(d) of PC
Act, 1988 and substantive offences thereof.

Cognizance

6- On the said charge-sheet, the trial
Court took cognizance of the said offences
662 INDIAN LAW REPORTS ALLAHABAD SERIES
and summoned the accused persons to face
trial.

Discharge Application

7- The applicants herein namely Ajay
Mishra (applicant no.1) and M/s Infolink
Consultancy Services Pvt. Ltd. through its
Director Ajay Mishra (applicant no. 2) have
preferred an application Under Section 239
of the Code of Criminal Procedure, 1973
dated 07.03.2022 seeking discharge. The
other co-accused persons namely D.S.
Srivastava, Pradeep Kumar Shukla, R.K.
Balani, Sanket Verma, Dr Chander Bhan
Prasad, Dr Rajender Prasad and Dr Ram
Narayan Rawat have also filed separate
discharge applications. All the discharge
applications were heard together and
rejected by the trial Court vide common
order dated 02.03.2024 and thereafter
charges have been framed against the
accused persons by common order dated
29.04.2024.

8- Here it would be relevant to
mention the charges framed against the
accused persons, which are as under:-

Charges

I, Pramod Kumar, Special Judge Anti
Corruption, CBI Ghaziabad, hereby charge
you, the accused Daya Shankar Srivastava,
Ajay Mishra, M/s Infolink Consultancy
Services Pvt. Ltd. represented by Director
Ajay Mishra, Pradeep Kumar Shukla,
Ravindra Kumar Balani, alias R.K Balani,
Sanket Verma, Dr. Rajendra Prasad and Dr.
Ram Narayan Rawat alias Dr. R.N Rawat
with the following charges.

i. That in the year 2009-10, you, the
accused Daya Shankar Srivastava, Ajay
Mishra, M/s Infolink Consultancy Services
Private Limited, Director Ajay Mishra,
Pradeep Kumar Shukla, Ravindra Kumar
Balani alias R.K. Balani, Sanket Verma, Dr.
Rajendra Prasad and Dr. Ram Narayan
Rawat alias Dr. R.N Rawat entered into a
criminal conspiracy among themselves and
under this, there was a criminal conspiracy
in NRHM and hospital management
information system in 15 district level
hospitals
of
Uttar
Pradesh.
In
the
implementation of the System (HMIS), M/s
Infolink Consultancy Services Pvt. Ltd.,
Lucknow, which was not empanelled with
UPLC, was allotted the work at a higher
rate by following the tender process
differently. This caused a loss of about Rs.
02 crores to the government and the public
servants and you accused persons got
wrongful gains. Thus, you have committed
the offence punishable under Section 120-B
read with Section 420, 471 of the Indian
Penal Code, Section 13(2) read with
Section 13(1)(d) of the Prevention of
Corruption Act, 1988, which is in the
cognizance of this court.

ii. That at the above mentioned time
and place, you, the accused conspired
among themselves with ill intention and
without following the tender process to
execute the tender of Hospital Management
Information System (HMIS) under NRHM
at a higher rate given to M/s Infolink
Consultancy Services Pvt. Ltd., Lucknow,
which was not listed with UPLC, by
allotting work without following it, he
cheated and caused wrongful loss to the
government and wrongful gain to himself.
You have committed a punishable offence
under Section 420 of the Indian Penal
Code, which is in cognizance of this court.

iii. That at the above mentioned time
and place, you, the accused Daya Shankar
Srivastava,
Pradeep
Kumar
Shukla,
Ravindra Kumar Balani alias R.K. Balani,
7 All. Ajay Mishra & Anr. Vs. C.B.I.
663
Sanket Verma, Dr. Rajendra Prasad and Dr.
Ramayan Rawat alias Dr. R.N. Rawat
conspired with the accused Ajay Mishra
and his company M/s Infolink Consultancy
Services Pvt. Ltd., of which he was the
Director, by using fake tender documents as
genuine ones and without following the
tender process, M/s Infolink Consultancy
Services Pvt. Ltd., Lucknow. The work was
allotted to a company which was not
empanelled with UPLC at a higher rate by
following different
tender
procedures.
Thus, you have committed an offence
punishable under Section 471 of the Indian
Penal Code, which is in cognizance of this
court.

iv. That at the above mentioned time
and place, you, the accused Daya Shankar
Srivastava,
Pradeep
Kumar
Shukla,
Ravindra Kumar Balani alias RK Balani,
Sanket Verma, Dr. Rajendra Prasad and Dr.
Ramayan Rawat alias Dr. Rawat, while
holding the post of a public servant,
misused his position in the tender process
for
the
implementation
of
Hospital
Management Information System (HMIS)
under the NRHM and cheated during the
allotment, breached the criminal trust and
defrauded the government of about Rs 2.00
crores causing wrongful loss of money and
wrongful gain to himself. Thus, you have
committed an offence punishable under
Section 13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 1988,
which is in the cognizance of this court.

Therefore, I hereby order you to be
tried by this court for the said charges.

9-Both
the
above
orders
dated
02.03.2024 and 29.04.2024 are the subject
matter of challenge in the case in hand by
the applicants (Ajay Mishra and M/s
Infolink Consultancy Services Pvt Ltd).

Submissions on behalf of applicants

10-The learned counsel the applicants
strenuously urged as under:-

10.1- The applicant no.1 (accused no.
2 in charge-sheet) is a bona fide service
provider/private vendor engaged in the
business of providing IT solutions for a
variety
of
prestigious
competitive
examination works and other software,
computerized processing works. He is the
founder and Director of the company M/s
Infolink Consultancy Services Pvt. Ltd.
(applicant no.2-accused no. 3 in chargesheet).

10.2- Accepting the prosecution case
and relied upon materials by the C.B.I. as it
is, no offence is made out against the
applicant-Ajay Mishra and his company
M/s Infolink Consultancy Services Pvt Ltd.

10.3- The budget of Rs. 5.25 crores
was proposed by the State Government, not
by the UPLC, nor by the applicants.

10.4- It is an admitted fact that the
proposed work quotation made by the
applicant comfortably fell within the
budget. There is no impropriety with the
quoted prices by the applicants.

10.5- The work assigned to the
applicants by UPLC has been completed in
terms of work order.

10.6- So far as payment made to
vendor-M/s Infolink Consultancy Services
Pvt Ltd. is concerned, it is admitted case of
the prosecution that DG(FW) transferred
Rs. 4,72,50,008/- to UPLC. UPLC made
payment
of
Rs.
3,66,72,009/-
(Rs.
3,75,63,403- TDS Rs. 8,91,394/-) to vendor
664 INDIAN LAW REPORTS ALLAHABAD SERIES
M/s Infolink Consultancy Services Pvt Ltd.
against bill of Rs. 4,83,91,682/-.

10.7- There is no allegations, much
less evidence of any conspiracy, demand,
transfer,
acceptance,
gratification
or
kickback or undue favour at the hands of
the public officers in the present case

10.8- Applicant no. 2 (M/s Infolink
Consultancy Services Pvt Ltd ) was a duly
empanelled vendor both on the date of
issuance of work order, i.e. 22.04.2010 in
its favour, and even on prior occasions
from 2006 onwards. At all the relevant
dates, the applicant no. 2 was empanelled.

10.9- Referring the contents of charge
sheet and statement of Shri A.K. Rawat
(PW-23), who was Technical Director,
National Information Centre (NIC), it is
submitted that on physical inspection which
was carried out on 8th and 9th January
2015, it was found that computer hardware
and main HMIS software were supplied by
the vendor. The HMIS system was found
installed and functional in the hospital,
therefore, the present case is neither a case
of over-invoicing, nor under-supply of any
proposed material. The perceived faults
found by the investigating officer is entirely
speculative and not borne out from material
on record.

10.10- So far as the proposed HMIS
system is concerned, it is submitted that
same was not meant to be identical to the
'Bahraich Model' but was meant to be an
upgraded/upscaled version of the 'Bahraich
Model', hence solely on this ground,
comparisons between the two systems are
wholly improper.

10.11- Regarding DGS&D rates, it is
submitted that same were never available to
the applicant to avail, as he was a private
vendor empanelled and employed in the
capacity of a 'turnkey contractor'. Only
direct Government procurement, if at all
would be entitled to the same. Secondly,
rates of different make/model/brands within
the DGS&D rates could not at all be the
basis of comparison with the material
sourced by the applicant, because they were
not of the same quality/suitability.

10.12- Deductions to the tune of Rs.
1,08,28,279/- was already effected by the
Government over perceived service issues,
which manifestly indicates the same at
highest to be a civil matter. Wrongful loss
cannot arise when the Government has
already applied deductions.

10.13- The charge under Section 13(2)
R/W 13(1)(d) of the PC Act is not made out
in
view
of
the
amendment
dated
26.07.2018 to Section 13(1)(d) of the PC
Act and absence of Savings Clause within
the Amendment Act itself.

10.14- Substantial modification of the
ingredients of Section 13(1)(d) of the P.C.
Act, 1988 has been made in view of the
long-standing misuse of the application of
the erstwhile provision of Section 13(1)(d)
of the P.C. Act, 1988 prior to its
amendment w.e.f. 26.07.2018.

10.15- Much emphasis has been given
by contending that it is settled law that
amendments that mitigate or mollify the
rigours of penal statutes are to be
beneficially construed and to this extent
they can be given retrospective application
to erstwhile prosecutions as well.

10.16- Mr. Daya Shankar Srivastava
(accused
no.1),
the
then
Managing
Director,
Uttar
Pradesh
Electronics
7 All. Ajay Mishra & Anr. Vs. C.B.I.
665
Corporation Ltd. (UPLC) was already
under suspension in the year 2009 and his
name does not appear in the selection,
issuance or approval of the work order,
therefore applicant no.1 could not have had
any contact with him and other accused
persons including accused no.4. The said
fact is corroborated and confirmed from the
statement of Shri Vishnu Mohan (PW-11),
the then Marketing Officer posted in
Hardware Division and at the time of
recording of his statement, he was posted
as Assistant Manager (Computer Education
and Training), U.P. Electronics Corporation
Ltd.

10.17- UPLC being an empanelled
agency does not need to go through the
competitive process and can be selected
directly.
Pursuant
to
G.O.
dated
16.08.2002, UPLC can be directly assigned
work
order
on
the
direction
of
administrative departments. The said G.O.
dated 16.08.2002 has been in force much
prior to the alleged conspiracy and has
never been challenged nor rescinded.

10.18-As per statement of Chandra
Prakash (PW 84), the then Principal
Secretary, IT and Electronics, M/s Infolink
Consultancy was already empanelled Vendor
from 2006-08, which was the competent
company and had applied for renewal of
empanelment for developing and supplying
application software for HMIS project in 15
hospitals. Mr. Chandra Prakash has also stated
inter alia that it was the overall duty and
responsibility of Mr. S.C. Gupta to go through
and examine all rules, regulations, Government
orders,
etc.
regarding
procurement
and
empanelment of vendors and after having
exhausted due diligence by the concerned
officials of UPLC, file was put up for his
approval. Thereafter said recommendation was
approved by him.

10.19- Person who negotiated, oversaw
and approved the project to UPLC has not been
made accused.

10.20- Empanelment of M/S Infolink
Consultancy Services Pvt Ltd. proves the
applicant Company to be a bona fide and duly
certified vendor of the UPLC much prior to the
alleged conspiracy. Work order was given to
applicant no. 2 as a turnkey contractor.
Therefore, the applicants cannot be implied to
be some fly by night operator or ineligible
vendor.

10.21- Regarding the allegation of
prosecution that work order was issued without
following tender process is concerned, it is
submitted that UPLC had adopted and ratified
the policy and rules relating to " Outsourcing of
Marketing of Software & Services of
UPDESCO (another State-owned enterprise
and nodal agency of the State Government)
except rule relating to price fixation and
remuneration of marketing partner as laid down
in para 8 of the policy and rules of UPDESCO.

10.22- The aforesaid policy was not the
creation of UPLC, but of another State PSU,
UPDESCO as early as in the year 2006. UPLC
merely adopted the UPDESCO policy in its
meeting in 2008, which is again much prior to
the alleged conspiracy.

10.23-
Relevant
clauses
of
the
UPDESCO policy as adopted by UPLC are
Clause 5(ii), Clause 7(A), Clause 7(E).

10.24- The said policy has never been
challenged.
This
policy
was
never
rescinded.

10.25-
UPLC
taking
cue
from
UPDESCO followed a practice of not only
outsourcing marketing proposals for work
but allotting work orders to the vendor that
666 INDIAN LAW REPORTS ALLAHABAD SERIES
assisted/proposed/canvasses
in
the
marketing of the proposal and otherwise
had full rights to award work to specific
vendor. Hence the allegation that work
order was given to the applicants without
exhausting the process of tender is totally
fallacious and misconceived in view of the
existing policies and standard practices of
UPLC as early as in 2006, which is 4 years
prior to NRHM Scheme.

10.26- For development and execution
of projects in the area of turnkey software
solutions,
development
of
application
software, infrastructure & networking,
practical
training
on
software
and
maintenance of software, security, storage
and backup etc., marketing proposals were
part of the scope of work required of
empanelled
vendors
for
software
development & turnkey projects to provide
complete
hardware
and
software
IT
solutions.

10.27- It is also submitted that M/s
Large Info Solutions was not empanelled,
is completely irrelevant in view of the fact
that Ajay Mishra being part of both M/s
Large Info Solutions (partnership firm) and
Infolink (partnership) has no separate legal
liability and is the alter-ego. There is no
material
impropriety,
much
less
any
criminal wrongdoing.

10.28- Referring the contents of para
23 of the Rejoinder Affidavit, it is further
submitted
that
allegations
against the
applicants
are
wholly
false,
concocted,
obnoxious and presented with the mala-fide
intension to falsely implicate the applicants.

10.29- The Investigating officer, instead of
levelling charges based on evidence, has drawn
his
own
subjective
views
based
on
presumptions, surmises and conjectures without
any evidence and in utter disregard of prevalent
Government Order dated 16-8-2022 and policy
adopted by UPLC vide Executive Committee
meeting dated 28-6-2006 and practices during
the relevant period.

10.30- Investigating officer has failed to
mention any concrete evidence against the
applicant.

10.31- In the contents of the charge sheet
what is totally and conspicuously absent is any
evidence of conspiracy, demand, transfer,
acceptance of any gratification or kickback or
undue favour at the hands of the public officers,
who are accused in the charge sheet.

10.32- The entire case of the prosecution
based on the materials relied upon by the
prosecution unsubstantiated and implausible
from the outset when in fact the applicants had
totally and satisfactorily implemented the
project in entirety which was categorically
proved to be superior to the 'Bahraich Model'.

10.33- The alleged loss to the public
exchequer is based on totally erroneous
calculations and completely different and disanalogous rates of items/brands that have been
quoted in comparison to the applicants
specifications that could not have validly been
compared to the applicants' rates.

10.34- The applicants were marking
partner of UPLC. The UPLC does not adopt
tender process, because the same is not binding
upon UPLC and as per prevailing practice
UPLC
accepts
outsourcing
marketing
proposals for work and had full rights to
award work to specific vendor.

10.35- The conclusion drawn by the
investigating officer is contrary to his own
record and evidence collected during
investigation.
7 All. Ajay Mishra & Anr. Vs. C.B.I.
667

10.36- On the strength of above
submissions, lastly it is submitted that basic
ingredients to constitute an alleged offence
against the applicants are lacking, hence no
offence is made out against applicants, but
the trial Court illegally rejected the
discharge application of the applicants vide
impugned order and framed the charges
against the applicants. Hence under the
facts and material evidence on record,
criminal prosecution of the applicants is
nothing but an abuse of process of the
Court, hence both the impugned orders
dated 02.03.2024 and 29.04.2024 are liable
to be quashed.

Judgments relied upon on behalf of
applicants

11-Learned counsel for the applicants
in support of his submissions and prayer
placed
reliance
upon
the
following
judgments:-

1.
Dhariwal Tobacco Products
Ltd. & Anr. v. State of
Maharashtra &. Anr. (2009)
2 SCC 370
2.
Prabhu Chawla v. State of
Rajasthan & Anr. (2016) 16
SCC 30
3.
Asian Resurfacing of Road
Agency Pvt. Ltd.& Anr. v.
Central
Bureau
of
Investigation (2018) 16 SCC
299
4.
Rajesh Yadav & Another v.
State
of
Uttar
Pradesh
(2022) 12 SCC 200
5.
P.K. Narayanan v. State of
Kerala (1995) 1 SCC 142
6.
Dr. S. K. Singh v. State of
M.P
&
Ors
CRR
No.
2032/2015 (MP HC)
7.
T Barai v. Henry AH Hoe
(1983) 1 SCC 177
8.
Md. Abdul Haque v. Srimati
Jesmine Begum Chaudhary
2012 SCC OnLine Gau 143
9.
Ratan Lal v. State of Punjab
AIR 1965 SC 444
10.
Shyam Lal v. State AIR
1968 All 392
11.
Sundar Lal v. MCD 1970 6
DLT 445 (DEL HC)
12.
Zile
Singh
v
State
of
Haryana (2004) 8 SCC 1
13.
New India Assurance Co.
Ltd v. C. Padma & Anr
(2003) 7 SCC 713
14.
Sushila N. Rungta v. Tax
Recovery Officer (2019) 11
SCC 795
15.
West U.P. Sugar Mills Assn.
vs. State of UP (2002) 2
SCC 645
16.
Union of India vs.Prafulla
Kumar Samal (1979) 3 SCC
4
17.
Dilawar Babu Kurane Vs.
State of Maharasthra (2002)
2 SCC 135)
18.
P. Vijayan v. State of Kerala
(2010) 2 SCC 568
19.
Dipakbhai
Jagdishchandra
Patel v. State of Gujarat
2019 16 SCC 547
20.
Interim stay order dated
07.01.2020
passed
in
application under Section
482 Cr.P.C. No. 40 of 2020
(Anil Kumar Yadav v. State
of U.P.) pending before the
Lucknow Bench of this
Court.

Submissions on behalf of C.B.I.
668 INDIAN LAW REPORTS ALLAHABAD SERIES

12- Mr. Rahul Srivastava, learned
counsel appearing for the Central Bureau of
Investigation, at the outset, raised a
preliminary objection by contending that
since impugned order dated 02.03.2024 is
in the nature of final order, therefore this
application under section 482 Cr.P.C. is not
maintainable.
The
applicants
have
alternative remedy to challenge the order
dated 02.03.2024 by means of criminal
revision.
Apart
from
the
aforesaid
preliminary objection, it is also submitted
that whether applicant was indulged in
criminal conspiracy with the other coaccused or not is a matter of trial, which
can appropriately be adjudicated by the
trial Court after leading evidence by the
parties concerned. Since the defence of the
accused cannot be taken into consideration
at this stage, hence relief as sought for by
means of this application cannot be granted
to the applicants. Referring paragraph no. 8
of the counter affidavit filed on behalf of
C.B.I. and relying upon the contents of
charge-sheet,
learned
counsel
further
submits that:

12.1-As
per
charge-sheet,
investigation revealed that during the
month of June 2009, there was an allocated
budget of Rs. 5.25 crores by Central
Government under National Rural Health
Mission
(NRHM)
for
installation
of
Hospital Management Information System
project in 15 district level hospitals @ Rs.
35 lacs per hospital on the model of district
hospital Bahraich that was developed and
executed by National Informatics Centre
and UP Health System Development
Programme (UPHSDP) with the aid of
World Bank.

12.2-
The
modalities
of
the
implementation of HMIS project were
finalized in a meeting held on 06-07-2009
under the Chairmanship of Shri Chanchal
Tiwari, the then Secretary, Family Welfare,
Government of UP and Mission Director,
NRHM, Lucknow. A decision was taken
firstly to identify 15 district hospitals in
which the project will be executed. Since
the result of Bahraich Model developed by
NIC and UPHSDP was good, therefore it
was also decided in the meeting to
associate both the agencies for the purpose
of survey and preparation of estimates in 15
hospitals and after these exercises, an
agency be identified for implementation of
this project.

12.3- In the meantime Shri Pradeep
Kumar Shukla (accused no. 4), the then
Principal
Secretary,
Medical
Health,
Government of UP took charge as Mission
Director, NRHM in place of Shri Chanchal
Tiwari.

12.4- On 06.08.2009, Shri Pradeep
Shukla chaired the Executive Committee
meeting of the NRHM wherein an agenda
was placed in terms of the decision dated
06.07.2009, in which earlier decision dated
06.07.2009 was modified and it was
decided to utilize the services of NIC or
any Central/State reputed agencies dealing
in IT/Electronics. The said decision was
further ratified in next meeting dated
12.08.2009 of Executive Committee of the
NRHM and it was also decided that out of
the identified agencies, if necessary, one
organization can be taken in the advisory
role and the other can be the executing
agency. The said minutes were signed by
Shri Pradeep Shukla.

12.5-On
account
of
aforesaid
modification/dilution in decision dated 0607-2009, it is clear that there was a
deliberate change brought about in the
nomenclature of the proposed agency for
7 All. Ajay Mishra & Anr. Vs. C.B.I.
669
execution of the HMIS project by Shri
Pradeep Kumar Shukla with dishonest
intention knowingly and purposely.

12.6-Thereafter Shri Pradeep Kumar
Shukla being Director of NRHM in
pursuance of criminal conspiracy assigned
the
said
project
to
UP
Electronics
Corporation Ltd, a State Public Sector
Enterprises,
which
was
further
got
implemented by UPLC through a vendor
without
exhausting
the
process
of
competitiveness and reasonability of rates
resulting in causing of huge loss to the
Government exchequer.