Bombay High Court
Shri Ravindra Dnyaneshwar Patil vs The Secretary on 18 June, 2013
Author: B.R. Gavai
Bench: B.R. Gavai, P.N. Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.112/2013
1. Shri Ravindra Dnyaneshwar Patil,
aged about 42 Yrs., Occu. Service.
2. Smt. Sangeeta W/o Ravindra Patil,
aged about 37 Yrs., Occu. Household.
Both R/o Narendra Nagar, Nagpur. ..Petitioners.
..V/s..
1.
The Secretary, Ministry of Home,
Mantralaya, Mumnbai 32.
2. The Commissioner,
Nagpur Municipal Corporation,
Nagpur.
3. The Commissioner of Police Nagpur
City, Nagpur.
4. Joint Commissioner of Police Nagpur
City, Nagpur.
5. Police Inspector,
Sitabuldi Police Station,
Nagpur City, Nagpur.
6. The Secretary, Maharashtra Medical
Council, 189-A, Anand Complex,
IInd Floor Sane Gurjui Marg,
Arthor Road, Naka Chinchpokli (West),
Mumbai 11.
7. Dr. Vinay S/o Krishnarao Tule,
aged 52 Yrs., Occu. Consultant,
Geneticist the Proprietor
EUGENIKS' Genetic Laboratory,
office at 106/107/A, Lokmat Bhawan,
Ramdaspeth, Nagpur. ..Respondents.
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Mr. Y.B. Mandpe, Adv. for petitioners.
Mr. R.S. Nayak, Additional Public Prosecutor for State/respondents 1, 3 to 5.
Mr. S.M. Puranik, Adv. for respondent no.2.
(respondent no.6 served.)
Mr. B.G. Kulkarni, Adv. for respondent no.7.
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CORAM : B.R.GAVAI AND
P.N.DESHUMUKH, JJ.
DATE : 18.06.2013
ORAL JUDGMENT (Per B.R. Gavai, J.)
1. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties.
2. Petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for following reliefs :-
i) issue writ of mandamus or any other form of writ or any other direction to the respondent declaring that :-
ii) the certificate issued by respondent no.2 to unqualified Doctors for running a laboratory be declared as null and void.
iii) direct respondent no.2 to verify if there are other Doctors who does not possess requisite qualification and are running the laboratories, and initiate action against the officers involved in granting registration certificate as annexed in Annexure-17 and 18.
iv) direct the respondent nos.3, 4 and 5 to register an FIR and investigate the matter on the report lodged by petitioner on 23-10-2012.::: Downloaded on - 27/08/2013 20:51:46 ::: 3
v) transfer the investigation to Central Bureau of Investigation by registering the FIR.
vi) compensate the petitioner from Doctors who have issued invalid and bogus certificate to the tune of Rs.1 Crore as per Annexure-10.
Vii) any other order this Hon'ble court deems fit and proper under the circumstances of the case may kindly be passed in the interest of justice.
3. It is the contention of the petitioners that when the petitioner no.2 conceived, the blood sample of the fetus was tested by the respondent no.7, who is running a laboratory namely Eugenics Genetic Laboratory, Lokmat Bhawan, Nagpur , to ascertain as to whether the fetus had SS pattern. It is the contention of the petitioners that since both of them are having AS pattern, they suspected that the same may be inherited by the child and therefore, the said test was done. It is the contention of the petitioners that respondent no.7 had given a th certificate on 13 July, 2009 mentioning therein that the child in the womb is not having SS pattern. It is further the case of the petitioners that after the ::: Downloaded on - 27/08/2013 20:51:46 ::: 4 birth of the child, it was noticed that the child was having SS pattern and suffering from sickle cell. It is the case of the petitioners that in an enquiry, it was found that the respondent no.7 was not having a requisite qualification in Genetics Science, as required under Indian Medical Council Act, 1956. The petitioners, thereafter, had approached the respondent police authority for registration of F.I.R., however, since same was not done, the petitioners have approached this Court invoking extraordinary jurisdiction for grant of aforesaid reliefs.
4. Mr. Mandpe, the learned counsel appearing on behalf of the petitioners, relying on the judgment of the Division Bench of Gujarat High Court in case of Association of Pathologist of Bhavnagar and 17 V/s.
Secretary Health Department & 8 (Special Civil Application No.7999/1998 and others) submits that unless the respondent no.7 had a registration with the Medical Council of Maharashtra, he could not have started the Genetic Laboratory. The learned counsel relying on the circular issued by the Director, Central ::: Downloaded on - 27/08/2013 20:51:46 ::: 5 Government Health Scheme, submits that unless a person is M.D. or D.N.B. in Pathology or holds diploma in Clinical Pathology, he is not entitled to open a pathological laboratory. The learned counsel relying upon a download from Internet regarding Entrance Exams 2013 Education and Career in India in Government Colleges for DM in Medical Genetics , submits that unless the ig qualification prescribed thereunder is obtained, a person cannot open a pathological laboratory. Mr. Mandpe further submits that the respondent no.7 though is not entitled to run a clinical laboratory is running it illegally and thereby fooling various persons. He submits that on account of a false certification by the respondent no.7, the petitioners have given birth to a child, who is suffering from sickle cell decease. It is the contention of the petitioners that the respondent no.7 might have given the report to the petitioners on the basis of sample of some other person. The learned counsel, therefore, submits that in the larger public interest, it is necessary to suspend or cancel the registration of the respondent no.7, to direct the ::: Downloaded on - 27/08/2013 20:51:46 ::: 6 police authorities to register the F.I.R. and also payment of compensation to the petitioners to the tune of Rs.1 Crore.
5. Mr. B.G. Kulkarni, the learned counsel appearing on behalf of the respondent no.7, on the contrary, submits that the laboratory, which is being run by the respondent no.7, is the one which is registered under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. It is submitted that the respondent no.7 is having the requisite registration from the appropriate authority. The learned counsel, therefore, submits that the petition is without any merit.
6. The Parliament has enacted the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, (for short, hereinafter referred to as the Act ), with an object for providing for the prohibition of sex selection before or after conception and regulation of pre-natal diagnostic techniques for the purposes of detecting ::: Downloaded on - 27/08/2013 20:51:46 ::: 7 genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. It can, thus, be seen that said Act has been enacted basically, for the avowed purpose of prohibition of sex selection. The aim of the Enactment is also for detection of various genetic abnormalities or metabolic disorders etc. In the present case, the purpose of the petitioners for undergoing the test was to ascertain as to whether the fetus contained any genetic abnormalities or metabolic disorders etc. or not.
7. For considering rival submissions, it would be relevant to refer to the clause (e) and (g) of Section 2 of the said Act.
(e) Genetic Laboratory means a laboratory and includes a place where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for pre-natal diagnostic test.
[Explanation For the purposes of this ::: Downloaded on - 27/08/2013 20:51:46 ::: 8 clause, Genetic Laboratory includes a place where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used;] [(g) medical geneticist includes a person who possesses a degree or diploma in genetic science in the fields of sex selection and pre-natal diagnostic techniques or has experience of not less than two years in any of these fields after obtaining -
(i) any one of the medical qualifications recognized under the Indian Medical council Act, 1956 (102 of 1956); or
(ii)a post-graduate degree in biological sciences;] It can, therefore, be seen that clause (e) of Section 2 defines a Genetic Laboratory which means a laboratory and includes a place where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for pre-natal diagnostic test. The perusal of definition of medical geneticist , as provided in clause (e) of Section 2, reveals that a medical geneticist includes a persons who possesses a degree or diploma in genetic science in the fields of sex selection and pre-natal diagnostic techniques or has experience of not less than two years ::: Downloaded on - 27/08/2013 20:51:46 ::: 9 in any of these fields after obtaining one of the medical qualifications recognized under the Indian Medical Council Act, 1956 or a post-graduate degree in biological sciences.
8. Section 3 of the said Act provides that on and from the commencement of the Act (1) no Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to pre-natal diagnostic techniques.
Sub-section 2 of said Section provides that no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess the qualification as may be prescribed. Sub-section 3 of said section prohibits of conducting the activities mentioned therein at the place other than the place registered under the said Act.
9. Section 4 of the said Act provides and ::: Downloaded on - 27/08/2013 20:51:47 ::: 10 specifies the categories in respect of which the pre-natal diagnostic tests can be done. Except what has been mentioned therein, all other tests are prohibited by the said section. Sub-section (3) of said section provides for the various conditions which are required to be satisfied before a pre-natal diagnostic technique is to be used.
10. Section 17 of said Act provides for appointment of an Appropriate Authority and Advisory Committee. Sub-section (4) of the said Section provides for various functions of Appropriate Authority including grant, suspension or cancellation of registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and to investigate the complaints of breach of the provisions of the Act or the Rules made thereunder. Sub-section (1) of Section 18 provides that no person shall open any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless the same is duly registered under the said Act. Sub-section (2) of said Section provides for an application to be made for the purposes of ::: Downloaded on - 27/08/2013 20:51:47 ::: 11 registration. Sub-section (3) provides that every person running such a center shall apply for registration within a period of sixty days from the date of such commencement. Sub-section (4) of said section provides that after the expiry of six months from the date of commencement of the Act unless such Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic is registered, shall cease to conduct any such activities stated therein. Sub-section (5) of the said section prohibits the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic being registered, unless Appropriate Authority is satisfied that such Centre, Laboratory or Clinic is in a position to provide such facilities, maintain such equipment and standards as may be prescribed.
11. Section 19 of the said Act provides for an enquiry being conducted by the Appropriate Authority before arriving at the conclusion that the applicant has complied with all the requirements of the Act and Rules made thereunder before grant of certificate of registration. Sub-section (3) of the said section ::: Downloaded on - 27/08/2013 20:51:47 ::: 12 provides for renewal of the license whereas sub-section (4) provides for displaying the certificate at the conspicuous place. Section 20 of the said Act provides for cancellation or suspension of registration.
Sub-section (2) of the said Section provides that the Appropriate Authority upon being satisfied that there is a breach of the provisions of the Act or the Rules made thereunder, may suspend the registration. This is again without prejudice to any criminal action that may be taken against the said centre. Sub-section (3) of said Section provides for suspending the license without notice in an emergent situation. Section 21 of said Act provides for an appeal against the order of an Appropriate Authority.
12. Chapter VII of the said Act deals with the offences and penalties. Section 27 of the said Act provides that every offence under the Act shall be cognizable, non-bailable and non-compoundable.
However, Section 28 of said Act prohibits the cognizance of an offence being taken unless a complaint is made by an Appropriate Authority or any Officer ::: Downloaded on - 27/08/2013 20:51:47 ::: 13 authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority or a person who has given notice of not less than 15 days in the manner prescribed to the Appropriate Authority of the alleged offence of his intention to make a complaint to the Court.
13. It will also be relevant to refer to the certain provisions as prescribed in the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.
14. The perusal of Rule 3(2)(a) would show that any person having adequate space and being or employing (i) a Medical Geneticist and (ii) a laboratory technician, having a B.Sc. degree in Biological Sciences or a degree or diploma in medical laboratory course with at least one year experience in conducting appropriate pre-natal diagnostic techniques, tests or procedures, may set a up a genetic laboratory.
Rules 4, 5 and 6 thereof deal with the procedure for application and registration etc. Rule 7 provides for ::: Downloaded on - 27/08/2013 20:51:47 ::: 14 the validity of registration for five years from the date of its issuance. Rule 8 provides regarding renewal of registration.
15. The perusal of the aforesaid provisions, therefore, would reveal that for running a Clinical Laboratory either a person who is running that laboratory shall be a Medical Geneticist or a Laboratory Technician, having a B.Sc. degree in Biological Sciences or a degree or diploma in medical laboratory course with at least one year experience in conducting appropriate pre-natal diagnostic techniques, tests or procedures. For being a medical Geneticist either one has to have a medical qualification as recognized under the Indian Medical Council Act, 1956 or post graduate degree in biological sciences. In the present case, undisputedly, the respondent no.7 is having a post graduate degree in Micro Biology. Apart from that, he is having Ph.D. Degree in Bio-Chemistry.
The respondent no.7 has produced various certificates on record which would show that he also possess the requisite experience. However, we need not go into that ::: Downloaded on - 27/08/2013 20:51:47 ::: 15 aspect of the matter.
16. As already discussed herein above, an Appropriate Authority has been entrusted with the function of arriving at a conclusion as to whether a person applied has the prescribed qualification and as to whether the facilities in the clinic provided are as per the requirements of the Statute. Undisputedly, perusal of the documents on record would reveal that the respondent no.7 is having the certificate of registration as provided under the said Act and the st Rules w.e.f. 1 August, 1996. Prior to that, respondent no.7 was having registration under the Maharashtra Regulation of use of Pre-natal Diagnostic Techniques Act, 1988. The registration in favour of the respondent no.7 was renewed from time to time and last of such certificate, which is produced on record, th certifies renewal of registration from 26 August, 2008 th to 25 August, 2013.
17. The perusal of the said Act along with Rules would reveal that it is a complete Code in itself. The ::: Downloaded on - 27/08/2013 20:51:47 ::: 16 said Act provides for the pre-natal diagnostic tests which are permissible, which are prohibited, the requirements of registration, the qualification of the persons who can run the laboratories, clinic counselling centres etc., the Authorities who are entitled to grant or refuse the registration, their functions, powers and duties, the offences and penalties.
18. Section 28 of the said Act provides that no Court can take cognizance unless the complaint is made by the Appropriate Authority or any Officer authorized in that behalf by the Central Government, State Government or the Appropriate Authority or by a person who has given notice of not less than 15 days in the manner prescribed to the Appropriate Authority of the alleged offence and his intention to make a complaint to the Court.
19. Insofar as the judgment of the Gujarat High Court on which the learned counsel for the petitioners relies is concerned, the same pertains to running of ::: Downloaded on - 27/08/2013 20:51:47 ::: 17 pathological laboratories by Laboratory Technicians.
The Division Bench therein was considering the provisions of Indian Medical Council Act, 1956. In the present case, there is a special Statute providing for running of the Genetic Counselling Centres, Genetic Laboratories or Genetic Clinics etc. In that view of the matter, the said judgment would not be of any assistance to the case of the petitioners.
20. Insofar as the circular issued by the Director, Central Government Health Scheme is concerned, the said circular is issued inviting the applications for registration of the private clinics under the C.G.H.S. scheme. The Director of C.G.H.S. scheme may prescribe for qualification for registration under the scheme, however, that qualification cannot be read as a requirement under the Statute. In that view of the matter, the said circular would also be of no assistance to the case of the petitioners. Insofar as the download from Internet regarding the requirement for said test is concerned, for the same reasons, in our view, is also of no assistance to the case of the ::: Downloaded on - 27/08/2013 20:51:47 ::: 18 petitioners.
21. Admittedly, in the present case, the petitioners have not complied with the requirements of sub-section (2) of section 28 of the said Act and the complaint to an Appropriate Authority with an intention to file the same has not been made. Apart from this, there is another angle of the matter. The Apex Court in case of Aleque Padamsee and others V/s. Union of India and others reported in (2007) 6 SCC 171 had an occasion to consider the case of complainant who had approached the police authorities for lodging an F.I.R.
and on refusal thereof had approached the Apex Court under Article 32 of the Constitution of India for a direction to register the cases. The Apex Court after considering the scheme under the Criminal Procedure Code and also earlier judgments observed thus :-
7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in ::: Downloaded on - 27/08/2013 20:51:47 ::: 19 All India Institute of Medical Sciences case2 and reiterated in Gangadhar case3 the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences case2, Gangadhar case3, Hari Singh case5, Minu Kumari case4 and Ramesh Kumari case1, we find that the view expressed in Ramesh Kumari case1 related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari case1 the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences case2, Gangadhar case3, Minu Kumari case4, and Hari Singh case5. The view expressed in Ramesh Kumari case1 was reiterated in Lallan Chaudhary v. State of Bihar6. The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences case2, Gangadhar case3, Hari Singh case5 and Minu Kumari case4.
The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to their notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code. It appears that in the present case initially the case was tagged by order dated 24.2.2003 with WP (C) No. 530 of 2002 and WP (C) No. 221 of 2002. Subsequently, these writ petitions were delinked from the aforesaid writ petitions.
It can, thus, be seen that whenever an
information is received by the police about the
alleged offence which is cognizable, there is duty to ::: Downloaded on - 27/08/2013 20:51:47 ::: 20 register the F.I.R. The Apex Court goes on to further observe that, however, if the police authorities refuse to do so, the modalities to be adopted are set out in Section 190 read with Section 200 of Criminal Procedure Code.
22. The Apex Court in case of Kunga Nima Lepcha & Ors. V/s. State of Sikkim & Ors. reported in AIR 2010 SC 1671 also had an occasion to consider the similar issue. It is relevant to refer to paragraphs 8, 9 and 10 of the said judgment.
8. It is of course true that this Court has copious powers under Article 32 of the Constitution for the purpose of enforcing the rights enshrined in Part III of the Constitution. Over the years, this Court has creatively expanded its writ jurisdiction to provide redress against the infringement of fundamental rights and concurrently relied on Article 142 to do complete justice in the matters before it. As explained by J.S. Verma, C.J., in Vineet Narain v. Union of India (1998) 1 SCC 226 (Para. 49): (AIR 1998 SC 889 : 1998 AIR SCW 645)
49. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been ::: Downloaded on - 27/08/2013 20:51:47 ::: 21 recognized and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role...
9. However, the remedies evolved by way of writ jurisdiction are of an extraordinary nature. They cannot be granted as a matter of due course to provide redressal in situations where statutory remedies are available. It is quite evident that the onus is on the petitioners to demonstrate a specific violation of any of the fundamental rights in order to seek relief under writ jurisdiction. In the present petition, the petitioners have made a rather vague argument that the alleged acts of corruption on part of Shri Pawan Chamling amount to an infringement of Article 14 of the Constitution of India. We do not find any merit in this assertion because the guarantee of `equal protection before the law' or `equality before the law' is violated if there is an unreasonable discrimination between two or more individuals or between two or more classes of persons. Clearly the alleged acts of misappropriation from the public exchequer cannot be automatically equated with a violation of the guarantee of `equal protection before the law'.
10. Furthermore, we must emphasise the fact that the alleged acts can easily come within the ambit of statutory offences such as those of `possession of assets disproportionate to known sources of income' as well as `criminal misconduct' under the Prevention of Corruption Act, 1988. The onus of launching an investigation into such matters is clearly on the investigating agencies such as the State Police, Central Bureau of Investigation (CBI) or the Central Vigilance Commission (CVC) among others. It is not proper for this court to give directions for initiating such an investigation ::: Downloaded on - 27/08/2013 20:51:47 ::: 22 under its writ jurisdiction. While it is true that in the past, the Supreme Court of India as well as the various High Courts have indeed granted remedies relating to investigations in criminal cases, we must make a careful note of the petitioners' prayer in the present case. In the past, writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing investigations from one investigating agency to another. Such directions have been given when a specific violation of fundamental rights is shown, which could be the consequence of apathy or partiality on part of investigating agencies among other reasons. In some cases, judicial intervention by way of writ jurisdiction is warranted on account of obstructions to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful interests. In all of these circumstances, the writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. However, it is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is upto the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation. It must also be borne in mind that there are provisions in the Code of Criminal Procedure which empower the courts of first instance to exercise a certain degree of control over ongoing investigations. The scope for intervention by the trial court is hence controlled by statutory provisions and it is not advisable for writ courts to interfere with criminal investigations in the absence of specific standards for the same.
23. In aforesaid case the Apex Court has held ::: Downloaded on - 27/08/2013 20:51:48 ::: 23 that in the extraordinary jurisdiction when glaring case is made out, the writ court may exercise its powers. However, the powers to be exercised by the writ Court are to be of a corrective role to ensure that the integrity of investigation is not compromised. It has been further held that it is not viable for a writ court to order the initiation of an investigation. It has further been held that function clearly lies in the domain of the executive and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation. It is also held that there are provisions of the Criminal Procedure which empower the courts of first instance to exercise a certain degree of control over ongoing investigations.
24. In the present case, if according to the petitioners, the respondent no.7 has breached any of the provisions of the said Act or the Rules, they had ample opportunities to take recourse to the remedies provided under the said Statute under Section 28 itself. The petitioners could have made complaint to ::: Downloaded on - 27/08/2013 20:51:48 ::: 24 an Appropriate Authority, which is empowered to consider the same. If the petitioners were aggrieved, they could have filed complaint before the competent authority i.e. Court of Judicial Magistrate First Class after giving notice of not less than 15 days to the Appropriate Authority of the alleged offence and their intention to make the complaint to the Court.
Admittedly, the petitioners have done nothing of that sort. As already discussed herein above, the petitioners could have very well taken recourse to Section 190 read with Section 200 of the Criminal Procedures Code and approached the competent Judicial Magistrate First Class. However, the petitioners have rushed directly to this Court for various reliefs including direction to lodge an F.I.R.
25. In the light of aforesaid discussion let us examine the prayers made by the petitioners in the petition.
26. Prayer clause (ii) prays for a direction to the respondent no.2 for a declaration that the ::: Downloaded on - 27/08/2013 20:51:48 ::: 25 certificate issued by unqualified doctor for running a laboratory be declared as null and void. It can, thus, be seen that a very omnibous prayer is sought without there being any details as to whether any of the certificates issued are issued without following requirements of the Statute or as to whether the persons holding such certificates are not possessing the requisite qualification. In our considered opinion, therefore, such a declaration cannot be granted.
27. Prayer clause (iii) seeks a direction to the respondent no.2 to verify if there are other doctors who does not have requisite qualification and are running the laboratories and initiate action against the officers involved in granting registration certificate as Annexures 17 and 18. Shri Mandpe, the learned counsel for the petitioners, fairly conceded that this is not a public interest litigation but a personal interest litigation. In a lis, which even according to the petitioners is a private lis, we do not find that such a generic direction can be given to ::: Downloaded on - 27/08/2013 20:51:48 ::: 26 the respondent no.2 and that too without there being any material to establish that there exists certain doctors who are running a laboratory without possessing the requisite qualification.
28. Insofar as the prayer clause (iv) is concerned, it seeks direction to the respondents 3, 4 and 5 to register the F.I.R. However, in view of the judgment of the Apex Court in case of Aleque Padamsee and others V/s. Union of India and others (cited supra), in our considered view, such a direction cannot be granted. If the petitioners feels so, they can very well file a complaint to the Appropriate Authority in view of the provisions of Section 190 read with Section 200 of the Criminal Procedure Code read with Section 28 of the Act.
29. Insofar as the prayer clause (v) regarding direction to transfer the investigation to Central Bureau of Investigation is concerned, the same also, in our considered view, cannot be granted as no case is made out.
::: Downloaded on - 27/08/2013 20:51:48 ::: 2730. Insofar as the prayer clause (vi) is concerned, it is regarding compensation to the petitioners from doctors who have issued invalid and bogus certificate to the tune of Rs.1 Crore. The prayer is as vague as it could be. The petitioners have not even named the doctor from whom the compensation is sought. In any case, the questions as to whether any doctor has committed negligence and as to whether on account of such negligence the petitioners have sustained any loss or not, are not the questions which can be gone into by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India. If the petitioners are so advised, they can very well file a suit for damages and compensation by naming the persons, who according to them, have committed medical negligence or if permissible in law, approach the appropriate Consumer Forum.
31. In the totality of the circumstances, the petition is devoid of substance and is liable to be dismissed.
::: Downloaded on - 27/08/2013 20:51:48 ::: 2832. Rule is, therefore, discharged with no order as to costs.
JUDGE JUDGE
Tambaskar.
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