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Madhya Pradesh High Court · body

2009 DIGILAW 121 (MP)

Y. K. Sharma v. State of M. P.

2009-01-23

S.S.DWIVEDI

body2009
ORDER 1. The petitioners have filed this application under section 482 CrPC for quashment of FIR registered at police station Dhamnod district Dhar (MP) in Crime No. 48/08 against the petitioners for the offence under section 3 read with 8 of Madhya Pradesh Upcharya Griha Tatha Rujopchar Sambandhi Sthapanaye (Registrikaran Tatha Anugyapan) Adhiniyam, 1973 (hereinafter referred to as "the Act of 1973") and consequential submission of charge sheet before the JMFC, Dharampuri district Dhar. 2. Briefly stated the facts of the case arc that the petitioners are the Directors of Vyankatesh Nursing Home and Research Centre, Dhamnod and doing medical practice in that nursing home. On some complaints, an Inquiry has been conducted by the SDM and found certain irregularities in the concerning nursing home. It is also found that concerning nursing home running by the petitioners is not having valid registration issued by the competent authority as per the Act of 1973. Therefore, the District Magistrate had lodged a complaint to the police for registration of the offence against the petitioners, on which basis, the police Dhamnod has registered a FIR against the petitioners at Crime No. 48/08 for the offence under section 3 read with 8 of the aforesaid Act of 1973 and after due investigation, charge sheet has been filed against the petitioners before the JMFC, Dharampuri district Dhar. The petitioners have challenged the aforesaid registration of the FIR as well as filing of the charge sheet against them for the aforesaid offence under section 3/8 of the Act concerned by this petition filed under section 482 of CrPC and prayed for quashment of the concerning criminal proceedings. 3. Having heard learned counsel for the petitioners as well as Dy. Government Advocate for the State and perused the record. 4. It is submitted by counsel for the petitioners that under the Act of 1973, section 3 only provides for registration and licence to run a nursing home or a clinical establishment and if required registration has not been obtained by the concerning person for running a nursing home then penalty provided under section 8 of the Act and FIR has been registered only for the offence under section 3 and 8 of the Act concerned. It is submitted that the petitioners had already applied for grant of registration of the nursing home concerned but the registration authority, the Chief Medical and Health Officer, Dhar had refused to grant aforesaid registration to the petitioners for which the petitioners have preferred an appeal to the State Government and the competent appellate authority by order dated 11.7.2008 has set-aside the order passed by the Chief Medical and Health Officer, Dhar and further held that registration of a nursing home situated in a place having population of less then fifty thousand is not at all necessary under the Act of 1973, for which, necessary Gazette Notification is also produced by the petitioners published in the Official State Gazette on 1.8.1997 wherein the State Government has exempted for registration of a nursing home situated in a place having population less than fifty thousand. Therefore, in view of the aforesaid Gazette Notification of the Government of M.P., admittedly the petitioners' nursing home is situated at Dhamnod which is having population of less than fifty thousand. Therefore, no registration is required under section 3 of the Act concerned and in view of that also, no violation has been committed by the petitioners under the provisions of section 3 of the Act. Hence, it is submitted that registration of the FIR against the petitioners is totally baseless and illegal and hence prayed for its quashment. 5. Learned Dy. Government Advocate for the State submitted that all the documents required are available and at this stage, prima-facie it is proved that nursing home is running without valid registration as provided under section 3 of the Act, therefore, at this stage, the prosecution of the petitioners cannot be proved to be baseless or illegal. All the documents are to be proved at the time of trial. Hence, no grounds are available for quashment of the FIR and the charge sheet filed by the police against petitioners, hence, prayed for dismissal of the petition. 6. On perusal of the charge sheet papers it is apparent that FIR has been registered against the petitioners for an offence under section 3 of the Act of 1973 which reads as under: "3. Nursing home or clinical establishment not to be opened, kept or carried on without registration and licence. 6. On perusal of the charge sheet papers it is apparent that FIR has been registered against the petitioners for an offence under section 3 of the Act of 1973 which reads as under: "3. Nursing home or clinical establishment not to be opened, kept or carried on without registration and licence. -- No person shall open, keep or carryon a nursing home or a clinical establishment without being registered in respect thereof and except under and in accordance with the terms of a licence granted therefor". Therefore, only allegation against the petitioners is for establishment of a nursing home without obtaining valid registration from the competent authority which is punishable offence under section 8 of the Act. 7. Learned counsel for the petitioners also placed a copy of the Gazette notification issued by the State Government of M.P. under the aforesaid Act of 1973 which is published on 1.8.1997 which reads here as under: yksd LokLF; ,oa ifjokj dY;k.k foHkkx ea=ky;] oYyHk Hkou] Hkksiky Hkksiky fnukad 30 tqykbZ 1997 dz- ,Q- 2&3&97&l=g&esfM-&2&e/;izns'k mip;kZx`g rFkk :tksipkj laca/kh LFkkiuk,a ¼jftLVªhdj.k rFkk vuqKkiyu½ vf/kfu;e] 1973 dh /kkjk 1 dh mi/kkjk 3 esa fufgr 'kfDr;ksa dks iz;ksx djrs gq, jkT; 'kklu ,rn~okjk mDr vf/kfu;e rFkk mlds varxZr cuk, x, fu;eksa dks e/;izns'k jkT; esa fnukad 1 vxLr 1997 ls izHkko'kkyh djrk gSA ¼mDr vf/kfu;e rFkk fu;e izns'k ds lHkh ,sls uxjksa vkSj LFkkuh; fudk;ksa dks ykxw ekus tkosaxs ftudh tula[;k 1 vizSy 1991 dks ipkl gtkj ;k mlls vf/kd FkhA e/; izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj lrh'k flykoV] milfpo 8. On the basis of aforesaid notification published by the State Government it is apparent that registration of a nursing home is only necessary for the nursing home situated in a place having population of more than fifty thousand. Admittedly, Panchayat Dhamnod where the petitioners' nursing home is situated is not having population more than fifty thousand. Therefore, if by the aforesaid notification, registration of nursing home concerned is exempted by the State Government in compliance of section 3 of the Act concerned then no offence can be made against the petitioners for running a nursing home without obtaining any registration from the competent authority. 9. Therefore, if by the aforesaid notification, registration of nursing home concerned is exempted by the State Government in compliance of section 3 of the Act concerned then no offence can be made against the petitioners for running a nursing home without obtaining any registration from the competent authority. 9. Counsel for the petitioners has also filed a copy of the order passed by the competent authority, the Secretary, Public Health Department, Bhopal dated 11.7.2008, whereby the competent authority has set-aside the order of rejection of registration application by the Chief Medical and Health Officer, Dhar and also held same thing that Ohamnod is a place having population less then fifty thousand. Therefore, the provisions of aforesaid Act of 1973 is not at all applicable to the nursing home of the petitioners and also ordered for return of the registration fee deposited by the petitioners in the office of competent authority, the Chief Medical and Health Officer. Ohar. 10. On perusal of the aforesaid documentary evidence as well as the notification issued by the State Government in the official gazette for which judicial notice can be taken by the Court. On perusal of copy of gazette notification concerned then certainly prima-fade no offence is made out against the petitioners which is punishable under section 3 read with 8 of the Act of 1973. 11. Therefore, in view of the aforesaid facts of the case, registration of the FIR against petitioners is found to be illegal and subsequently, charge sheet is also liable to be quashed filed on the basis of aforesaid FIR. 12. Resultantly, the petition filed by the petitioners succeeds and is hereby allowed. FIR registered at Crime No. 48/08 by police station Ohamnod district Ohar against the petitioners under section 3 read with 8 of the Act of 1973 is hereby quashed and consequently, on the basis of the aforesaid FIR, whatever prosecution, charge sheet has been filed before the JMFC, Dharampuri district Ohar against the petitioners is also hereby quashed. 13. The petitioners are discharged from the aforesaid charges accordingly.