Major Dr. Kanhaiyalal Patidar v. State of Madhya Pradesh
2022-11-09
SATYENDRA KUMAR SINGH
body2022
DigiLaw.ai
JUDGMENT 1. This petition under Section 482 of Cr.P.C. has been preferred against the order dated 7.9.2021, passed by the Court of 3rd Addl. Sessions Judge, Barwah, District Mandleshwar (West Nimar) in Cr. Rev.No.6/2021, whereby the order dated 20.2.2020 passed by the Court of Judicial Magistrate First Class, Barwah, framing the charge against the applicant for the offence punishable under Section 24 of M.P. Ayurvigyan Parishad Adhiniyam 1987 [in short Adhiniyam 1987], was affirmed. 2. Brief facts giving rise to this petition are that on 29.8.2021 at about 11.00 AM, Block Medical Officer, Block-Barwah, Complainant Dr. Anuj Karkhur received an information that an illegal health camp was being organized by the applicant at Agrasen Dharamshala, Barwah, wherein physician sample (not for sale) as well as expired medicines were given to the people illegally. Complainant alongwith his staff members namely Maneesh Mandloi, Rajendra Sharma and Naib Tehsildar Barwah, Rahul Solanki went there and found applicant alongwith other co-accused persons examining the people without having certificate of registration with M.P. Medical Council in terms of the provisions of Adhiniyam 1987 and giving to them physician sample (not for sale) as well as expired medicines. On being asked applicant and his associates co-accused persons did not produce their registration certificates. Complainant recovered the medicines found on the spot and made written complaint dated 2.9.2019 to SHO P.S., Barwah, on the basis of which FIR was lodged against the applicant and other co-accused persons. After completion of investigation charge sheet was filed before the Court of Judicial Magistrate First Class, Barwah. Learned Trial Court vide order dated 20.02.2022, framed the charges against the applicant and co-accused persons for the offence punishable under Section 24 of Adhiniyam 1987, against which applicant filed criminal revision bearing No. 6/2021 before the Court of 3rd Addl.Sessions Judge, Barwah, which was dismissed vide impugned order dated 7.9.2021. 3. Learned counsel for the applicant submits that applicant completed his M.B.B.S. degree in the month of November-December, 2006 from Armed Forces Medical College, Pune affiliated to Maharashtra University of Health Sciences, Nashik. After taking compulsory rotating internship training from 6.2.2007 to 5.2.2008, he registered his name in the Indian Medical Council Register as per registration certificate dated 22.2.2008. Applicant joined Indian Army in the year 2007 as a Medical Officer as a Short Service Commissioned Officer.
After taking compulsory rotating internship training from 6.2.2007 to 5.2.2008, he registered his name in the Indian Medical Council Register as per registration certificate dated 22.2.2008. Applicant joined Indian Army in the year 2007 as a Medical Officer as a Short Service Commissioned Officer. In the year 2012 he was granted substantive promotion to the rank of Major and thereafter retired in the year 2014. He completed his Doctor of Medicine (Dermatology, Venereology and Leprosy) from Armed Forces Medical College Pune and moved to Madhya Pradesh in the year 2018 and got himself registered with the M.P. Medical Council in terms of Adhiniyam 1987. He further got additional registration certificate in lieu of his additional qualification of M.D. He is operating skin clinic in the name of 'Mayra Skin and Asthetics Clinic' at Mhow. He further submits that complainant Dr. Anuj Karkhur unnecessarily interfered in the Health Camp organized by the applicant and co-accused persons with ulterior motive and when applicant objected, he made false complaint against the applicant. Since applicant is a registered medical practitioner and is duly registered with Indian Medical Council and M.P. Medical Council and is duly enrolled on Indian Medical Register and State Medical Register, offence punishable under Section 24 of Adhiniyam 1987, is not made out against him. Prosecution has intentionally not taken on record the certificates of the applicant. The registration certificate produced by the applicant has been verified by the respondent and of unimpeachable character of sterling quality, and can be considered at the initial stage as held by Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi [ (2005)1 SCC 568 ]. The impugned order framing charge against the applicant is not sustainable, therefore, the same be quashed and the applicant be discharged from the charges framed against him. 4. Learned counsel for the respondent/State has opposed the prayer and submits that as the applicant has not produced his registration certificate at the time of investigation, the learned trial Court has not committed any error in framing the charge against him. The petition is devoid of merit and is liable to be dismissed. 5. Heard learned counsel for both the parties at length and perused the record. 6.
The petition is devoid of merit and is liable to be dismissed. 5. Heard learned counsel for both the parties at length and perused the record. 6. In the case of Anant Vijay Soni Vs State of M.P. & Another (MCRC No 6960/2015, decided on 21.09.2017), it has been held by this Court that a petition u/S 482 of Cr.P.C. would not be rendered infructuous simply because the charge has been framed by the Trial Court. Relevant para is as follows: 'It is true that after filing of the petition under Section 482 of the Code of Criminal Procedure, the case before the trial Court proceeded and subsequently a charge as stated above, has been framed by the trial Court; however, the Supreme Court has held in the case of Satish Mehra Vs. State (NCT of Delhi) and another, AIR 2013 SC 506 that the power under Section 482 of the Code of Criminal Procedure for quashing the first information report would be available for exercise not only at the threshold of the criminal proceedings but also at a relatively advance stage thereof, namely after framing of charge against the accused. Thus, it is clear that a petition under Section 482 of the Code of Criminal Procedure would not be rendered infructuous simply because the charge has been framed by the trial Court. Thus, the Court would treat the petition under Section 482 of the Code of Criminal Procedure as being maintainable and proceed to adjudicate it on merits.' 7. Hence, there remains no doubt that this petition u/S 482 of Cr.P.C. for quashment of FIR is maintainable. 8. Perusal of the record reveals that allegations alleged against the applicant are that on 29.8.2021 at about 11.00 AM, he was found organizing a health camp and was practicing as medical practitioner without having registered himself with the M.P. Medical Council in terms of Adhiniyam 1987. Admittedly, prosecution filed the charge- sheet against the applicant u/S 24 of Adhiniyam 1987 and the learned Trial Court vide impugned order dated 20.2.2020, has framed the charges against him for the aforesaid offence only. Extract of Section 24 of Adhiniyam 1987 is as follows : '24.
Admittedly, prosecution filed the charge- sheet against the applicant u/S 24 of Adhiniyam 1987 and the learned Trial Court vide impugned order dated 20.2.2020, has framed the charges against him for the aforesaid offence only. Extract of Section 24 of Adhiniyam 1987 is as follows : '24. Penalty - If any person whose name is not enrolled on the State Medical Register practices as a registered Medical Practitioner, he shall be punishable with rigorous imprisonment for a term which may extend to three years and with fine which may extend to five thousand rupees; Provided that - (i) the person possessing Bachelor in Ayurvedic with Modern Medicine and Surgery degree and registered with the Madhya Pradesh Board of Ayurvedic and Unani systems of Medicine and Naturopathy shall not be punishable under this section for prescribing allopathic medicines or practicing surgery if his registration certificate authorizes him to do so; (ii) the Medical Practitioner entitled to the privileges of Section 27 of the Indian Medical Council Act, 1956 (No.102 of 1956) shall not be punishable under this section for his non-registration in Madhya Pradesh.' 9. In the instant case, applicant has produced the copy of his certificate of registration dated 22/02/2008 (Annexure- P/6) with M.P. Medical Council in terms of the provisions of Adhiniyam 1987. S.H.O. Police Station, Barwah vide letter dated 5.8.2022, has informed that the aforesaid registration certificate with regard to registration of the applicant with M.P. Ayurvigyan Parishad has been found genuine. He has enclosed the copy of the Letter No. MPMC/Shika- 32/2022/1762, dated 4.8.2022, received from the Registrar, M.P. Medical Council, Bhopal in this regard in support of his above letter. Therefore, there is no reason to disbelieve about the genuineness of the applicant's certificate of registration dated 22/02/2008, with the M.P. Medical Council in terms of the provisions of Adhiniyam 1987. 10. In the case of State of Orissa Vs.
Therefore, there is no reason to disbelieve about the genuineness of the applicant's certificate of registration dated 22/02/2008, with the M.P. Medical Council in terms of the provisions of Adhiniyam 1987. 10. In the case of State of Orissa Vs. Debendra Nath Padhi [Supra], the Apex Court while considering the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, held that the width of the powers of the High Court u/S 482 of Cr.P.C. and Article 226 of the Constitution of India is unlimited, whereunder in the interests of justice the High Court can make such orders to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameteres laid down in Bhajan Lal's case. 11. In the case of Rajiv Thapar and others Vs. Madan Lal Kapoor, AIR 2013 SC (Supp.) 1056 also the Apex Court had delineated the following steps to determine the veracity of a prayer for quashing, raised by the accused by invoking the powers vested in the High Court under Section 482 of Cr.P.C. : '(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e. the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant. (iv) Step four, whether proceedings with the trial would result in an abuse of process of the Court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C.' 12.
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C.' 12. In the instant case, applicant's certificate of registration dated 22/02/2008 (Annexure- P/6) with M.P. Medical Council in terms of the provisions of Adhiniyam 1987 has been found genuine and can be said to be a material of unimpeachable character of sterling quality and ruled out the assertions contained in the charges levelled against the applicant that he was examining the people without having certificate of registration with M.P. Medical Council in terms of the provisions of Adhiniyam 1987. Hence, charges framed against him under Section 24 of Adhiniyam, 1987 is not made out against him. In view of the above, allowing the prosecution to continue in the case against the applicant would amount to abuse of the process of the Court, therefore, it is necessary to quash the proceedings against the applicant in order to serve the ends of justice. As such, the FIR in the instant case with respect to the applicant is liable to be quashed. 13. Consequently, this miscellaneous criminal case instituted u/S 482 of Cr.P.C. is allowed. The FIR bearing Crime No. 455/2019, registered at P.S. Badwah, Distt Khargone, with respect to the applicant is quashed. The criminal proceedings against the applicant are hereby set aside and he is discharged from the charge punishable under Section 24 of M.P. Ayurvigyan Parishad Adhiniyam, 1987. The impugned order dated 20.2.2020 passed by the Court of Judicial Magistrate First Class, Barwah and the order dated 7.9.2021, passed by the Court of 3rd Addl. Sessions Judge, Barwah, District Mandleshwar in Cr. Rev. No.6/2021 are accordingly also set aside.