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2021 DIGILAW 430 (JK)

Khalid Yousuf v. Union Territory of J&K

2021-08-23

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present petition has been filed by the petitioner under section 482 Cr.P.C. for quashing of FIR bearing No. 05/2020 dated 07.04.2020 for commission of offence under section 420 IPC registered with Police Station, Loran, Poonch. 2. It is stated that the petitioner is a Bachelor of Electropathy Medicine and Surgery (Certification Course) from N. E. H. M, New Delhi, duly authorized by the Ministry of Health and Family Welfare, Government of India and is duly registered as B.E.M.S. Medical Practitioner with the N. E. H. M. New Delhi, entitled to practice in Electropathy/Electro Homoeopathy System of Medicine. It is further stated that the Ministry of Health and Family Welfare, Government of India has also issued a policy decision dated 05.05.2010 to the effect that there is no ban on the medical practice of Electro Homeopathy and further that the Supreme Court of India on the basis of the said policy, has recorded in its order dated 22.01.2015 in G. C.S. Medical Institute of and Hospital of Elect. and another v. Union of India and others that in view of the counter affidavit filed by the Union of India, to the effect that there is no ban on the Medical Practice of Electro Homoeopathy, the petitioners do not wish to press the present Special Leave Petitions. Likewise, the High Courts of Delhi, Madras and Gujarat in similar controversy have observed that Bachelor of Electropathy Medicine and Surgery can practice in Electro Homoeopathy. 3. It is further stated that the petitioner came to know that on 07.04.2020, the SHO Police Station, Loran on his own, has registered the FIR impugned against the petitioner alleging therein that the petitioner has been attending patients without any authority and referring them to District Hospital, Poonch. 4. The petitioner has sought the quashing of the FIR impugned on the grounds that the FIR impugned does not disclose the commission of any offence, even if the allegations are taken at its face value and accepted in its entirety, that the FIR impugned has been registered without ascertaining as to whether the petitioner is practicing in Electro Homeopathy under some authority or not and the allegations in the FIR that the petitioner is attending patients without any authority and referring them to District Hospital, Poonch shows that it lacks the necessary ingredients of the offence of section 420 IPC against the petitioner. The petitioner has placed on record the copy of the FIR impugned, his certificates, the policy decision of the Government of India as also the order passed by the Supreme Court of India and other High Courts. 5. Response stands filed by the respondents in which it is stated that the disputed questions of fact cannot be adjudicated upon by filing of this petition and further that the petition deserves to be dismissed. 6. Mr. Vishal Sharma, learned counsel for the petitioner has vehemently argued that a bare perusal of the FIR impugned reveals that the ingredients of section 420 IPC are lacking and the present FIR is nothing but an abuse of process of law. 7. Per contra, Mr. Adarsh Bhahat, learned GA appearing for the respondents has vehemently argued that the FIR impugned has been validly registered, as such, the same cannot be quashed. 8. Heard and perused the record. 9. A perusal of the FIR impugned reveals that the same has been registered on 07.04.2020 with the allegations that on 07.04.2020 at 1400 hours one person was coming from Lohran towards Mandi on foot and was stopped for checking and the said person showed a medical slip of medical shop bearing the logo of Dr. Khalid Yousuf. B. E. M. S. and it was found that the said Doctor had referred the patient to the Hospital, District Poonch without any authority. The prescribed slip was seized and for his personal gains, the said Khalid Yousuf, petitioner herein has referred the patients to the District Hospital without any authority. On these allegations, the said FIR was registered. 10. The petitioner has placed on record his Qualification certificate as well as his registration certificate. Further from the perusal of order dated 05.05.2010, it is mentioned that there is no proposal to stop the petitioners from practicing in Electropathy or imparting education, as long as this is done within the provisions of order dated 25.11.2003. Further the Hon’ble Apex Court in its order dated 22.01.2015 has mentioned that in view of the counter affidavit filed by the Union of India, to the effect that there is no ban on the Medical Practice of Electro Homeopathy, the petitioners do not wish to press the present Special Leave Petitions. 11. Thus, there is no bar that a person cannot practice Electro Homeopathy provided he has undergone the requisite training. 11. Thus, there is no bar that a person cannot practice Electro Homeopathy provided he has undergone the requisite training. The respondents have not able to demonstrate that the qualification certificate as well as registration certificate relied upon by the petitioner is invalid. 12. In R.K. Vijayasarathy v. Sudha Seetharam, reported in (2019) 16 SCC 739 , the Apex Court has observed : “15. Section 415 of the Penal Code reads thus: “415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” 16. The ingredients to constitute an offence of cheating are as follows: 16.1. There should be fraudulent or dishonest inducement of a person by deceiving him: 16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. 18. Section 420 of the Penal Code reads thus: “420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 20. Cheating is an essential ingredient for an act to constitute an offence under Section 420. 19.2. The person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. 23. The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17-2-2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out.” 13. So far as the instant case is concerned, there is no averment in the FIR impugned that the petitioner has dishonestly induced any person to part away with any property and as such the requisites for commission of offence under sec 420 IPC are missing. In view of the fact that the petitioner is entitled to practice in Electro Homeopathy and if he has referred some patients to the hospital, no offence under section 420 IPC is made out. 14. For all what has been discussed above, this Court is of the considered opinion that FIR impugned does not disclose the commission of any cognizable offence as such the same is required to be quashed in view of the judgment of the Apex Court in Bhajan Lal vs. State of Haryana. The FIR bearing No. 05/2020 dated 07.04.2020 for commission of offence under section 420 IPC registered with Police Station, Loran as such is quashed.