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2011 (11) TMI 856 - HC - Indian LawsPrayer for CBI enquiry - Gross abuse and misappropriation of National Rural Health Mission (NRHM) funds by the State functionaries - failure to reconstitute State Health Mission and gross irregularities in purchase of various items and failure on the part of the State Government to take effective measures to monitor the implementation of the NRHM - murders of two Chief Medical Officers took place and the death of one Dy. CMO while in judicial custody - CAG has been requested to conduct special State level audit - HELD THAT:- We fail to appreciate that when so many reports were coming forward and one Press Release was issued by the State of U.P. itself taking cognizance of the matter then why effective steps were not taken till date for dealing with such gross irregularities. The State has not been able to explain its aforesaid inaction. The inaction of the State and omission to take necessary steps has not only resulted in committing financial irregularities which the learned Additional Advocate General terms as financial mismanagement but also has deprived the beneficiaries of the laudable scheme which was sought to be implemented for providing medical facilities The consequence and effect of such inaction and omission on the part of the State have necessarily to be found out for which an independent enquiry by an independent agency as CBI is necessary. This would also be in consonance with the provision of Section 6-A of the CBI Act and para 9.1 of the CBI Manual that provides that where sufficient evidence is not available to register a regular case, preliminary enquiry may be conducted. We are prima facie convinced that gross irregularities - financial and administrative appear to have been committed in the execution and implementation of NRHM including the matter of award of contracts, procurement of goods, articles and etc. at various levels. We are not inclined to grant the plea of learned Additional Advocate General that we should wait for the CAG Report before considering to entrust the matter to CBI in light of the fact that CAG is conducting a special state level audit more so when statutory audits by CAG were not got conducted, MoU obliged statutory audits by CAG of the funds routed through the MoU. None of the opposite parties have attempted to explain this inaction. Further, the special audit which has been ordered is only with respect to 24 districts for the financial year 2009-10 and 2010-11. Learned Additional Solicitor General has also rightly pointed out that it is not necessary for this Court to wait for CAG Report as the scope of CAG and CBI being completely different and with the kind of irregularities appear to have been committed in the instant matter coupled with the fact that attempt was made to wash of some evidence, the exigencies of time require that immediate steps be taken to bring to light the persons guilty. Learned Additional Advocate General has also not been able to explain as to why the State would have waited for the outcome of the CAG Report when it was itself competent to take necessary action. His argument that pending CAG Report, there is no material before this Court is untenable. We also take notice of the fact that the murders of two CMOs (Family Welfare), Dr. V.K. Arya and Dr. B.P. Singh, death of Dr. Y.S. Sachan while in judicial custody (Jail) and financial irregularities committed in the office of CMO, Lucknow all in relation to irregularities in NRHM are already being investigated by the CBI pursuant to the orders of this Court with the consent of the State Government. The facts and circumstances, aforesaid make out a case for reference to CBI for making a preliminary enquiry in the affairs of NRHM in the entire State of U.P. right from the very inception of the NRHM. We, therefore, direct the Director, CBI to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of U.P. and register regular case in respect of persons against whom prima facie cognizable offence is made out and proceed in accordance with law. The preliminary enquiry shall be conducted from the period commencing year 2005-06 till date. It is directed that the inquiry be completed within four months. The State Government is directed to hand over and make available all the records as may be required by the CBI and render full support and cooperation to CBI. The Central Government is also directed to render full support as may be asked by the CBI. We may make it clear that the allegations levelled in the instant petitions have been examined only on prima facie scale and therefore CBI may proceed to conduct preliminary enquiry independent of our observations in accordance with law. Petitions accordingly stand disposed.
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