Orissa High Court
Kamurul Haque vs State Of Orissa on 2 January, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 3090 OF 2012
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with G.R. Case No.3433 of 2002
pending on the file of learned S.D.J.M., Bhubaneswar.
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Kamurul Haque ......... Petitioner
-Versus-
State of Orissa ......... Opposite party
For Petitioner: - Mr. H.N. Mohapatra
A. Samantray
For Opposite Party: - Mr. Deepak Kumar Pani
Addl. Standing Counsel
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 07.10.2016 Date of Judgment: 02.01.2017
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S. K. SAHOO, J.The petitioner Kamurul Haque has filed this application under section 482 of the Cr.P.C. challenging the order dated 05.09.2003 of the learned S.D.J.M., Bhubaneswar passed in G.R. Case No. 3433 of 2002 in taking cognizance of offence under section 420 read with section 34 of the Indian Penal Code and issuance of process against him. The said case arises out of Mancheswar P.S. Case No.182 of 2002.
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2. On 25.10.2002 one Smt. Aswini Pattnaik, Inspector of Police, CID, CB, Orissa, Cuttack lodged the First Information Report before the Inspector in charge, Mancheswar Police Station stating therein that accused Raj Kishore Nayak, President, Managing Body, Orissa Medical College of Alternative Medicines, (hereafter for short "OMCAM") along with the petitioner who was the Principal of OMCAM were managing the educational institution in the name and style as OMCAM, Hospital and Research Centre, Bhubaneswar, At/PO- Naharkanta in the district of Khurda which was registered under Societies Registration Act. Both the accused represented that their institution was registered by Govt. of Orissa and any student after completion of four and half years course can open his own clinic which according to the informant was found to be a clear case of fraud and misrepresentation of facts. As the study and practice of medical science relates to human life and safety, there was clear instruction to private medical colleges to obtain approval from Medical Council of India and Government before admission. The courses of study of alternative medicines have not been approved by Director, Medical Education and Training, Orissa or Medical Council of India and it was detected during inquiry that there was no hospital of the institution and even after lapse of 3 five years, OMCAM did not succeed in getting either approval of Government or of the Medical Council of India.
According to the further prosecution case as per the F.I.R. that such fraudulent misrepresentation of facts were intended to induce the students to deposit money as admission, development, tuition and examination fees for the four and half years course to become a doctor of alternative medicine. The two accused persons not only got the contribution of its forty students but also tried to get aid of rupees five crores from Rajiv Gandhi Foundation through deceitful means.
On receipt of such First Information Report, the Inspector in charge of Mancheswar Police Station registered Mancheswar P.S. Case No.182 of 2002 under sections 420/34 of the Indian Penal Code on 25.10.2002 and directed S.I. R.N. Nayak to take up investigation of the case. During course of investigation, the Investigating Officer examined the informant and visited the spot. By virtue of office order No.302/CID dated 22.11.2002 of Addl. D.G. of Police, CID, CB, Orissa, Cuttack, investigation of the case was taken over by Inspector Gagan Chandra Das of CID, CB. It was found out during investigation of the case that the OMCAM was neither recognized by Govt. of India nor the State Govt. and the same was not even affiliated to any University of India and as such OMCAM had no right to 4 award degree to the students as per section 3 of the Indian Medical Degrees Act, 1916 and section 22 of the University Grants Commission Act, 1956. The students passing from the institution cannot practise as a medical practitioner as per section 17(2) of the Indian Medicine Central Council Act, 1970. It was further found out during investigation that the accused persons as college authorities printed on the cover page of the prospectus as "Registered by I.G.R., Government of Orissa vide Registration No.20456/98-1999", which was misleading and meant to deceive the students and public in general. The College authorities also cheated the students by false representation of fact in the prospectus that after getting degrees and passing from the institution, they can open clinics and practise. The accused persons also induced the students to deposit Rs.34,750/- at the time of admission from 1997 to 2000 and thereby collected huge amount. Since 2001, the amount was increased to Rs.8000/- each for each of the nine semesters i.e., Rs.72,000/- in total. As a result of dishonest inducement, the students deposited money causing wrongful loss to them and prosecuting their studies at OMCAM to become degree holder in medical science. The Director, Indian Medicines and Homeopathy, Bhubaneswar proved that the Governing Body of OMCAM was intimated that the Government decided not to grant 5 recognition to OMCAM, Hospital and Research Centre, Naharkanta. The relevant documents like admission register, cash book, money receipt book along with other registers and documents of OMCAM were seized and released in the zima of the President, OMCAM. On finding prima facie case against the accused persons Raj Kishore Nayak and the petitioner Kamurul Haque, charge sheet was placed against them by Sri Gagan Chandra Das, Inspector of Police, CID, Crime Branch, Cuttack on 05.04.2003 under sections 420/34 of the Indian Penal Code.
3. The learned counsel for the petitioner Mr. H.N. Mohapatra challenging the impugned order contended that the President of the OMCAM namely Rajkishore Nayak is dead and the present petitioner was the Principal of OMCAM and he was in no way connected with the college establishment and he was duly appointed in the said institution by a recruitment process. Moreover the petitioner got post graduate degree by prosecuting his study in Medical College of Alternative Medicine, Canal Street, Kolkata, which is duly affiliated with the Open International University for Complementary Medicine, Colombo, Srilanka and Council of Alternative System of Medicine is affiliated to the said University. Like the Medical College of Alternative Medicine, Kolkata, the OMCAM, Hospital and Research Centre, Naharkanta was established since 1997 and has been duly registered under 6 Government of Orissa under the Societies Registration Act, 1860 bearing Regd. No. 20456/6 of 1998-99. The said institution was also affiliated with the Open International University for Complementary Medicine (Medicina Alternativa), Srilanka and it was accorded recognition for conducting examination, issue certificates and certificates for registration for students. The learned counsel placed Annexure-2, the Memorandum of Association of OMCAM, Hospital and Research Centre and contended that it specifically reveals that the aim of the institution was to inculcate the spirit of knowledge in the line of treatment in Alternative Medical Science mainly on AIDS and Cancer and Contraception methods in family planning and also to admit students in different faculties to teach, examine and issue degree to the successful candidates in affiliation with the Open International University for Complementary Medicine, Colombo, Srilanka. He placed clause 3.C.(iii) of the Rules and Regulations to indicate that the Governing Body shall have power to accept any trust, fund or endowment in which OMCAM, Hospital and Research Centre is interested and to raise funds for the College by gift, donation or otherwise raise loan etc. More particularly, the guardians of the students of the College are the general body members of the institution. According to Mr. Mohapatra, when the State Government has accepted the memorandum as well as 7 bye-law and allowed the institution for registration, lodging of the F.I.R. under section 420 of the Indian Penal Code and allowing the prosecution to continue on the basis of such F.I.R. is not permissible in eye of law.
According to the learned counsel for the petitioner, the Open International University for Complementary Medicine, Srilanka, which has affiliated the OMCAM, Hospital and Research Centre, Naharkanta to make Alternative Medicine popular, was established under the Medicina Alternativa, Colombo and recognized as a Deemed University by the authority of the President of Democratic Society Republic, Srilanka, which is internationally recognized by the United Nations and it is duly recognized by Government of India on 3rd December, 1981 as signatory to the International agreement for establishment University for Peace. The said International University is cross- affiliated by the Oxford International University.
According to the learned counsel for the petitioner, alternative medicine is a system, which is contrary to the modern system of medicine based on antibiotics and chemical compound and it is devoid of medicine made by chemical. Complementary medicine caters in general for people whom scientific medicine cannot or does not help. The system of alternative medicine is now well recognized all over the world. It 8 was pointed out that the United Nations, in order to fight the health problem of the world has approved and recognized the Graduate and Post Graduate Classes of the Open and Complementary Medicine and inter-University academic co- operation for providing medicines to mankind of all sorts of healing process. The said Council tried in its small way to help the sufferings of humanity when the Allopathic system, Ayurvedic system and other recognized system failed to reach to the majority of the people in India. The Society imparts and trains its members, students through the trained persons in the matter of different therapy namely Naturopathy, Bach Flower remedies (BFRs), Acupuncture, Electro Homeopathy and Herbal Product etc. According to Mr. Mohapatra, OMCAM, Hospital Research Centre, Naharkanta was imparting medical education in various disciplines such as Bachelor of Naturopathy and Yogic Science (B.N.Y.S.), Bachelor of Integrated Medicine & Surgery (B.I.M.S.) and Bachelor of Electro Homeopathy, Medicine & Surgery (B.E.M.S.). Under the courses of studies, the said College was imparting studies on the subjects like Anatomy, Physiology, Biochemistry, Pathology, E.N.T., Surgery, Obstetrics and Gynecology. So far as the study of surgery is concerned, if the Alternative Medicine practitioner finds that the patient 9 requires surgery, the patient will be referred to the surgeon. The study regarding surgery only deals with to ascertain whether the patient requires surgery or by utilizing alternative medicine, he can be cured. Nowhere in the courses of study, it is mentioned that the student under Alternative Medicine course can do surgery nor the investigation revealed that the students or the teachers conducted surgery in view of the said courses of studies.
He further contended that in Chhattisgarh, the Alternative Medical College is recognized by the Chhattisgarh Government and the same course was taught in the OMCAM, Hospital and Research Centre, Naharkanta and Indian Medical Council has also not accorded permission to those Colleges at Chhattisgarh since it is not coming under the purview of Indian Medical Council Act.
It is the contention of the learned counsel for the petitioner that the OMCAM, Hospital and Research Centre has a right to impart education on the alternative system of medicine and action of the State by lodging F.I.R. and interfering with the practice or education is in the teeth of fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. There is no prohibition in practising alternative medicine or imparting education on alternative medicine or getting education 10 in such medicine and it does not contravene the Indian Medical Council Act, 1956 and the OMCAM, Naharkanta has not issued any degree certificate and the University which has affiliated the institution can issue degree certificate and therefore, no offence under section 420 of the Indian Penal Code is made out.
Learned counsel for the petitioner placed reliance in the case of The Council of Alternative Systems of Medicine and another -Vrs.- State of West Bengal and others reported in 1991 (Vol.II) Calcutta Law Journal 173 wherein while quashing the first information report, it was held as follows:-
"16. It may be mentioned that the alternative system of medicine is a system devoid of medicine made by chemicals. It is a system to get cured by controlling diet, sense and breathing. If any disease is cured by a practise of Yogo, it cannot be said that such system contravened any of the provisions of law and it is an offence to get training in Yogo and to advise the people and to follow the system of Yogo. Yogo is not a recognized system of treatment by the Legislator and/or the Parliament but it is practised and propagated through T.C. by the Government. Similarly, the alternative system of medicine clearly indicates that it is a system which is contrary to the 11 modern system of medicine based on antibiotics and chemical compound.........The system of medicine cannot be said to be confined and limited to allopathy or homeopathic system of medicine..... It is needless to point out that the Legislator has right to make laws for regulating the system of medicine and education but certainly it has no right to stop a person from finding out any other alternative system of medicine. It cannot stop a person from getting cured from systems not recognized by the Legislator.....Government had not recognized the degree/diploma conferred by the authorities but certainly the Government cannot stop the people from getting education in the system which is an alternative system of medicine.....The person concerned who had got training and who may get training under the system, may not practise like an allopathy or homeopathy doctor, but certainly they have right to pursue this system and can prescribe the same to the people.
17.......There is no bar for opening any School or College and imparting education on any system but the degrees and diplomas cannot be recognized unless there is a law recognizing the same but that does not mean that nobody can read and get himself trained in any system of education not recognized by law. The activities of the said Council cannot be illegal or wrongful activities.12
18........The petitioner is the society registered under the Societies Registration Act and it is carrying on its activities on the basis of the aims and objects of the said Association. The aims and objects are legal and cannot be said to be against public policy. The said institution is also registered by the Government of West Bengal under Central Government Act XIV based on Literal and Scientific Act, 1864 and affiliated with the Council of Alternative System of Medicine registered under the Societies Registration Act. It is firmly established principle that if the First Information Report does not disclose any offence, in that event the First Information Report must be quashed.......The complaint lodged by the State Government and the F.I.R. of the police and the report of the police to the Registrar which is Annexure-1 are set aside and the respondents are restrained from initiating and continuing any criminal prosecution on the basis of the aforesaid lodged complaint."
Learned counsel for the petitioner further placed reliance in a decision of the Hon'ble Madhya Pradesh High Court in the case of Dr. Mukesh Shrivastava -Vrs.- The State of M.P. wherein while disposing of a batch of writ applications vide W.P.(C) No. 5021/99, 1633/98, 3108/98, 4622/98 etc., it was held as follows:-
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"9. Thus the only statutory provision which has been invocated to prohibit practice in alternative systems of medicine is under section 21 of the Act which in my opinion being contended to the Allopathic system of Medicine. I am of the opinion that respondent cannot take recourse to the aforesaid provision to stop practice in the alternative system of medicine. It is the stand of both sets of practitioner that they are practising and imparting education in alternative systems of medicine which is not regulated by any of the statute and hence they cannot be stopped from carrying out the practice in alternative systems and teaching in the said system in view of Article 19(1)(g) of the Constitution of India. It is that Article 19(1)(g) of the Constitution of India gives right to all citizens to practise any profession, or to carry on any occupation, trade or business but in view of Article 19(6), it does not prevent the State Government from making any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business."
The learned counsel for the petitioner placed further reliance on a decision of the Delhi High Court in CWP No. 4015 of 1996 titled Wing Commander (Retd.) H.M. Sethi -Vrs.- Ministry of Human Resources wherein the right to practise 14 Electro-homeopathy/ Electropathy was raised. In the said writ petition, Delhi High Court on 18.11.1998 issued various directions including a direction to the Central/State Governments to consider making legislation prescribing grant of licence to the existing and new institutes conducing course in Electropathy and other alternative systems of medicines. It also directed that the private respondents before the said Court and such like institutes shall not award any degree in the courses conducted by them. The said Division Bench of Delhi High Court has held that in terms of Section 22 of the University Grants Commission Act, 1956, no educational institute in the country, except the University as defined in the said Act, is entitled to award degrees. Therefore, it was held that it is not permissible to award degrees by any of the private respondents in the writ petitions. The Special Leave Petition against the said order was dismissed.
Learned counsel for the petitioner while concluding his argument contended that the impugned order of taking cognizance and issuance of process suffers from non-application of mind and therefore, it is a fit case to invoke the power under section 482 of Cr.P.C. to quash the proceeding.
4. The learned counsel for the State Mr. Deepak Kumar Pani on the other hand contended that the petitioner's institution 15 claims to provide teaching, treatment and research facilities, epidemics and mainly on AIDS and Cancer to the students coming from Orissa and outside the State and look upon to the treatment of patients on the line of alternative medical science. The rules and regulations of the Governing Body of the institution reflects that it has power to conduct examination and prepare candidates for degrees and post graduation degree on alternative medical science. The petitioner's institution also offers courses in "Bachelor of Integrated Medicines and Surgery"
(B.I.M.S) and also "Bachelor of Electro Homeopathy Medicine and Surgery" (B.E.M.S). The petitioner's institution is registered under the Societies Registration Act, 1860. More than fifty students were prosecuting their studies in the institution in Medical Degree Courses on Alternative Medicines since 1997. The petitioner was working as Principal and he is the ex-officio Secretary of the College. The petitioner is not only the founder member of the Governing Body but also working as Secretary of the institution. The Secretary is in charge of the management of the funds, properties and hospital and research centre. It is further contended that in view of the admitted fact that the institution offers courses on surgery and as the aim and object of the institution was to issue certificates on such courses, the same is in clear violation of Indian Medical Council Act, 1956.16
The institution has no registration, permission or recognition by the Government to establish and run a Medical College and to issue certificates on degrees of medicines. The admissions of the students were taken by misrepresenting them that the certificates issued would be genuine and institution was recognized by the Government. Since the courses offered by the institution include surgery, it has to obtain permission for establishment of the college from the Central Government which they do not have. Accordingly, neither the institution nor the certificates issued by the institution have got any value. The institution in its prospectus misrepresented to the students to take admission in the institution so that they can open clinics after passing out from the institution which is not permissible. By such misrepresentations, the institution was able to collect huge amount towards fees from the students. It is contended that the ingredients of the offence under sections 420/34 of the Indian Penal Code are clearly made out and therefore, the impugned order of cognizance passed by the learned S.D.J.M. is quite justified and should not be interfered with invoking inherent power under section 482 of Cr.P.C.
5. Section 420 of the Indian Penal Code deals with cheating and dishonestly inducing delivery of property. For establishing the offence of cheating, the prosecution is required 17 to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. The deception can not only be made by express words but also by conduct or implied in the nature of transaction itself. Inducement to a person to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false is called deception.
6. Law is well settled that cognizance is taken of an offence and not of an offender. It connotes to take judicial notice of an offence by the Magistrate with a view to initiate proceedings in respect of such offence and it is a step towards determination of the cause or matter judicially. At this stage, the application of judicial mind is limited to the extent as to whether there is prima facie material for proceeding with the offence alleged or not. Whether there is sufficient ground for conviction or supporting materials to that effect cannot be looked into at such stage. Adequacy of evidence is to be considered at the stage of trial.
7. In order to invoke the inherent power under section 482 of Cr.P.C. for quashing the order of cognizance, the High Court has to see whether the allegation made in the First Information Report or the complaint and the materials collected during investigation or during inquiry even if taken at their face 18 value and accepted in its entirety, makes out any offence or not. Such power should not be exercised to stifle a legitimate prosecution. Order of taking cognizance cannot be quashed considering the possible defence that the accused may take in the course of trial.
8. The Indian Medical Council Act, 1956 (hereafter '1956 Act') was enacted to provide for the reconstitution of the Medical Council of India, and the maintenance of a medical register for India and for matters connected therewith. Section 10-A of the 1956 Act provides that for establishing a new medical college or opening a new or higher course of study or training including a post-graduate course of study or training or to increase its admission capacity in any such course of study or training, the previous permission of the Central Government is necessary. The 1956 Act defines 'approved institution', 'council', 'medical institution', 'medicine' and 'university' in section 2 of the said Act. 'Approved institution' as per section 2(a) of the 1956 Act means a hospital, health centre or other such institution recognized by a University as an institution in which a person may undergo the training, if any, required by his course of study before the award of any medical qualification to him. 'Medicine' as per section 2(f) of the 1956 Act means modern scientific medicine in all its branches and includes surgery and obstetrics 19 but does not include veterinary medicine and surgery. Section 15 of this Act prohibits any person other than a medical practitioner enrolled on a State Medical Register to practise medicine in any State.
Section 2 (f) of the University Grants Commission Act, 1956 (hereafter 'UGC Act, 1956') defines "University" which means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act. Section 22 of the UGC Act, 1956 indicates that the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act or Parliament to confer or grant degrees. It further provides that save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree. For the purposes of the section 22, 'degree' means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the official Gazette. 20
The first of Statute governing medical education in India i.e. The Indian Medical Degrees Act, 1916 (hereafter '1916 Act') was enacted to regulate the grant of title implying qualifications in Western Medical Science and the assumption and use by unqualified persons of such titles. Section 2 of 1916 Act defines "Western Medical Science" which means the western methods of Allopathic medicine, Obstetrics and Surgery, but does not include the Homeopathic or Ayurvedic or Unani system of medicine. Section 3 of 1916 Act prescribes that the right of conferring, granting or issuing degrees, diplomas, licenses, certificates or other documents in the States stating or implying that the holder, grantee or recipient thereof is qualified to practise Western Medical Science, shall be exercisable by the authorities specified in the Schedule, and by such other authority as the State Government may, by notification in the Official Gazette, and subject to such conditions and restrictions as it thinks fit to impose, authorise in this behalf. Section 4 of the 1916 Act prohibits that no other person than authorized under Section 3, is competent to confer, grant or issue any degree.
Section 17(2) of the Indian Medicines Central Council Act, 1970 provides that no person other than a practitioner of Indian medicine who possesses a recognised medical qualification and is enrolled on a State Register or the Central 21 Register of Indian Medicine, (a) shall hold office as Vaid, Siddha, Hakim or physician or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority; (b) shall practice Indian medicine in any State; (c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner; (d) shall be entitled to give evidence at any inquest or in any Court of law as an expert under section 45 of the Indian Evidence Act, 1872 (1 of 1872) on any matter relating to Indian medicine.
9. The contention of the learned counsel for the petitioner that the petitioner was in no way connected with the establishment of the institution and he was simply discharging his duties as a Principal of the institution being duly appointed under a recruitment process is not acceptable. The materials available on record indicate that the petitioner was not only the Principal but also the ex-officio Secretary of the institution and the role of the Secretary have been enumerated in detail in the Rules and Regulations of the Governing Body of OMCAM, Hospital and Research Centre, Naharkanta. The multifarious duties assigned to the post of Secretary like in charge of the management of funds, property and affairs of the institution, 22 being the paying and disbursing authority of the society, sign, execute all papers and documents of the society etc. falsifies the submissions made that the petitioner was in no way connected with the establishment of the institution.
The learned counsel for the petitioner contended that if the alternative medicine practitioner finds that the patient requires surgery, he will refer the patient to the surgeon but the practitioner cannot himself conduct surgery and the study regarding surgery only deals with to ascertain whether the patient requires surgery or not. Such a contention is not acceptable inasmuch as the courses offered by the institution as per the prospectus like B.I.M.S. and B.E.M.S. include surgery and therefore by mentioning the same in the prospectus, the students became more and more attracted to the institution and were thereby induced to take admission in the institution. Section 2(f) of 1956 Act defines 'medicine' which means modern scientific medicine in all branches and includes surgery and obstetrics. A surgeon is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. It requires an in-depth understanding of the subject as well as practical experience. Since no medical college can be established without 23 the previous permission of the Central Government, establishing and running an institution like OMCAM, Health and Research Centre and offering courses on surgery is clearly illegal and deceptive in nature. If alternative medicine is a system devoid of medicine made by chemicals and contrary to the modern system of medicines based on antibiotics and chemical compound then admitting students in different faculties like surgery and to teach and examine them on such subject and issue degree to the successful candidates is beyond the scope of alternative medicine.
It is not disputed at the Bar that OMCAM was neither recognized by Govt. of India nor by the State Govt. and the same was not even affiliated to any University of India and as such the institution has got no right to award degree to the students as per section 3 of the 1916 Act. Section 22 of the UGC Act, 1956 indicates as to who shall exercise the right of conferring or granting degrees. Since OMCAM is not a University established or incorporated by or under a Central Act or a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act or Parliament to confer or grant degrees, mentioning in the memorandum of association under the heading of aim and objects of the Society that the institution would issue degree to 24 the successful candidates is nothing but reflects that the accused persons had fraudulent or dishonest intention at the time of making promise or representation which they knew or believed to be false but induced the students to believe it to be true. The institution imparting knowledge, training or course leading to issuance of degrees or certificates in alternative medicine is not recognized to grant such degrees or certificates under the UGC Act, 1956. Alternative medicine is not recognised by Medical Council of India. Alternative medicine is also not a recognised course in any recognized medical college. A person passing out the course on alternative medicine cannot be registered as doctor. The contention of the learned counsel for the petitioner that OMCAM has not issued any degree certificate and only the University which has affiliated the institution can issue degree certificate is nothing but an attempt to cover up the illegalities committed by the institution in mentioning in the memorandum of association regarding issuance of degree to the successful candidates and thereby misrepresenting the students that the certificates issued would be genuine. The misrepresentation made to the students that after completion of four and half years' course, they can open their clinics is nothing but act of deception.
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The students of the institution have stated in their statements recorded under section 161 of Cr.P.C. that in the Bachelor of Integrated Medicine course, combined courses of modern Indian medicines (Allopathy), Homeopathy and Ayurvedic are included and they were taught about the combined treatment of three branches of medicines. Not only the institution was not authorised to impart such education but by way of misrepresentation in the prospectus, huge amount of fees were collected from different students causing wrongful loss to them and causing wrongful gain to the institution. The valuable time of the students have been taken by the institution in promising them to conduct degree courses in various disciplines of Alternative Medicines like B.I.M.S. and B.E.M.S. and for providing them teaching facilities in the various medical subjects such as surgery and obstetrics which come within the definition of 'medicine' as per section 2 (f) of the 1956 Act and no person can practise such 'medicine' in any State unless he is enrolled as a medical practitioner on a State Medical Register. The application submitted by the petitioner to recognize the Alternative Medical Degree courses offered by OMCAM, Hospital & Research Centre was rejected by the Directorate of Indian Medicines & Homeopathy, Orissa vide letter dated 09.07.2001. The petitioner was advised to obtain clearance of Govt. of India 26 or of any statutory body authorised by the Govt. of India in support of the activities of the institution and submit the same to the Directorate. No such clearance was obtained by the institution. It was also not intimated to the students about the rejection of the application for recognition of the institution rather it was printed on the cover page of the prospectus of the institution as "Registered by I.G.R., Govt. of Orissa vide Registration No.20456/98-1999". The act of the institution was therefore not only misleading and meant to deceive the students but also to the public in general.
The fundamental right conferred by clause (1)(g) of Article 19 of the Constitution of India is not an absolute right but one which is liable to be restricted under clause (6). The restriction must be in the interests of general public, an expression which is very wide one and includes public health, public safety etc. Therefore, right to establish an institution like OMCAM, Hospital and Research Centre and offering various degree courses like B.I.M.S. and B.E.M.S. and providing teaching facilities in the various medical subjects like surgery and obstetrics by such institution and right to practise alternative medicine can be restricted by the State.
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The decisions relied on by the petitioner does not relate to any course of Surgery for which the same is distinguishable and has no bearing in this case.
In case of Electrohomoepathic Doctor's Association -Vrs.- State of Punjab reported in (2010) ILR 1 Punjab and Haryana 1 where the decision of the Central Government dated 25.11.2003 and the directions issued by the Punjab Government on 29.10.2004, 1.3.2007 and consequent proceedings initiated against the petitioners either for practising the Electro-homeopathy system of medicine and/or establishing the institutes imparting courses in Electro-homeopathy system of medicines was challenged, a Division Bench of Punjab & Haryana High Court held as follows:-
"22. In view of the decision of the Constitutional Bench of Supreme Court in Khoday Distilleries Ltd. and Ors.-Vrs.- State of Karnataka and Ors. reported in (1995) 1 Supreme Court 574, the restriction or prohibition as contemplated by clause (6) of Article 19(1)(g) can be placed by a subordinate legislation as well. Therefore, the decision of the Central Government in the absence of any other statute would be a decision taken by the executive in exercise of the executive power of the State. It may be noticed that a Division Bench of Delhi High Court has directed the Central/State 28 Government to consider the legislation permitting practise in Electropathy system of medicine. The executive order dated 25.10.2003 was passed in compliance of the said directions. The Central Government was considering the fact whether any legislation is to be enacted in respect of Electropathy system of medicine. The Central Government came to the conclusion that legislation is not required. The said decision of the Central Government whether to legislate or not is, in fact, an order in exercise of executive power of the State contemplated under Article 73 of the Constitution of India. In view of the aforesaid discussion, none of the judgments referred to by the learned Counsel for the petitioners are applicable to the facts of the present case for the proposition that prohibition to practise alternative system of medicine could be only by a law enacted by the Parliament or the State Legislature. Such proposition is not supported either by statutory provisions or by the precedents referred to above."
In the case of Shri Vidyasagar Educational and Cultural Society -Vrs.- The Union of India and Ors. passed in Writ Petition No. 6975 of 2014 decided on 10.08.2016 where the impugned communication dated 27th June, 2014 issued by Respondent No. 4 rejecting the proposal sent by the petitioner seeking permission to start Electrohomeopathy diploma course 29 was challenged with direction to the Respondents to allow the petitioner to conduct the course of Electropathy, Electrohomeopathy, a Division Bench of Bombay High Court (Aurangabad Bench) held as follows:-
"9. We have given careful consideration to the submissions advanced by the learned counsel appearing for the petitioners, the learned A.G.P. appearing for the Respondent/State and the learned counsel appearing for Respondent Nos. 4 and 5. With their able assistance, we have perused the pleadings in the petition, annexures thereto, reply filed by Respondent No. 1 and also the order passed by the Hon'ble Supreme Court of India in S.L.P. (C) No. 23572 of 2009 dated 22nd January, 2015. Upon careful perusal of the order passed by the Government of India dated 25th November, 2003, it is abundantly clear that the Government of India constituted a committee of Experts' under the Chairmanship of Director General, Indian Council of Medical Research and members were drawn from various fields of medicine to consider and give its recommendations to the Government on the efficacy/merits of various streams of alternative medicine and also examine feasibility of making legislation as suggested by the Hon'ble Court.
The Committee developed essential and desirable criteria for grant of recognition to a new stream of medicine and analysed the 30 different streams of 'Alternative Medicine viz. Ayurveda, Siddha, Unani, Homeopathy, Yoga & Naturopathy, Electropathy/electro-homeopathy, Acupuncture, magneto therapy, Reiki, Reflexology, Urine Therapy/Autourine Therapy, Hypnotherapy, Aromatherapy Colour Therapy, Pranic Healing, Gems & Stone Therapy and Music Therapy. The Committee did not recommend recognition to any of these alternative medicines except the already recognized traditional systems of medicines, viz; Ayurveda, Sidha, Unani, Homeopathy and Yoga & Naturopathy which were found to fulfil the essential and desirable criteria developed by the Committee for recognition of a system of medicine. The committee has, however, recommended that certain practices as Acupuncture and Hypnotherapy which are qualified as modes of therapy, could be allowed to be practiced by registered practitioners or appropriately trained personnel. As seen from the order dated 25th November, 2003 issued by the Government of India, Ministry of Health and Family Welfare, the Committee further suggested that all those systems of medicine not recognized as separate systems should not be allowed to continue full time Bachelor and Master's degree courses and the term "Doctor"
should be used only by practitioners of Systems of Medicine recognized by the Government of 31 India. Those considered as Mode of Therapy can be conducted as Certificate courses for registered medical practitioners to adopt these modes of therapy in their practice, whether modern medicine or Indian Systems of Medicine and Homeopathy.
10. Accordingly after examining the recommendations of the committee, the Government accepted the recommendations of the Committee and it was requested to the State/UT Government to give wide publicity to the decision of the Government of India. It was also instructed that the State Governments shall ensure that the institutions under the State/UT should not grant any degree/diploma in the stream of medicine which have not been recommended for recognition and the term "Doctor" should be used by practitioners of recognized system of medicine. There is further order passed by the Government of India and the Ministry of Health and Family Welfare Department of Health Research on 5th May, 2010. In the said order also, it is stated thus:-
"In accordance with Orders of the High Court & Supreme Court quoted here, 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 the Order No. R 14015/25/96-U & H(R)(Pt) dated 25th November, 2003."32
11. There is 3rd order issued by the Government of India, Ministry of Health and Family Welfare, Department of Health Research dated 21st June, 2011, wherein in clause (3) it is stated thus:-
"3. As per the directions of the Hon. Lucknow bench of the High Court of Judicature at Allahabad, the representation has been considered. It is clarified that the MH & FW Order No. R.14015/25/96-U & H(R)(Pt.) dated 25.11.2013 and No. V.25011/276/2009 - HR dated 05.05.2010 would be treated as instructions of the Government of India related to practice, education and research with regard to alternative systems of medicine like electropathy, electro-homeopathy, etc."
12. Therefore, there is no departure by the Government of India from the order passed on 25th November, 2003. Therefore, the petitioner's request to allow it to start Electropathy and Electro-homeopathy diploma courses has rightly been turned down by the Government of Maharashtra.
13. The Division bench of Allahabad High Court in the case of Indian Electro Homeopathy medical Council and Another Vs. State of U.P. and another in Writ-C No. 7698 of 2012 has considered the similar fact-situation and also the orders issued by the Union of India on 25th November, 2003. In para 6, there is reference to the Petition filed by Electro 33 Homeopathic Practitioners' Association of India and Anr. vs. A.P. Verma, Chief Secretary, Govt. of U.P. and others, 2004(2) ESC (All.) 1241 and also the Division Bench has reproduced paras 13 to 36 from the said judgment of the Division bench affirming the order passed by the learned Single Judge in the aforementioned case. It appears that the petitioner therein assailed the order by filing the Special Leave to Appeal (Civil) No. 16312 of 2004 against the judgment in Special Appeal No. 624 of 2004 decided on 28th May, 2004 by the Division Bench of Allahabad High Court.
However, the Hon'ble the Supreme Court dismissed the said S.L.P. Therefore, the Division Bench in detail has discussed about the orders issued by the Government of India from time to time. There is reference to the order dated 5th May, 2010 issued by the Department of Health, Research, Ministry of Health and Family Welfare, Government of India in para 13, and after considering the order passed by the Union of India on 25th November, 2003 and subsequent order dated 5th May, 2010 ultimate conclusion is reached in para 15. Paras 15 to 18 of the judgment of the Division Bench of Allahabad High Court read thus:-
"15. The order of the Ministry of Health and Family Welfare, Government of India dated 5th March, 2010 can in no way be interpreted to 34 allow the electrohomeopaths to teach, confer Degrees, Diplomas or Certificates or to practice Electrohomeopathy. The Electrohomeopathy has not been found by the Committee of Experts to qualify as system of medicine. No recognition has been given to the Electrohomeopathy as a system of medicine nor any system, for recognition of any course in Electrohomeopathy has been recognised by the Ministry of Health, Government of India. The permission of development and research of Electrohomeopathy cannot be treated as permission of the Central Government to teach, confer Degrees, Diplomas or certificates, practice Electrohomoepathy as a system of medicine.
16. This Court has repeatedly held that the Electrohomeopathy is not recognised system of medicine and cannot be practiced for curing the diseases or for any purpose. It is also well known principle of law of Human Rights that the medical research cannot be permitted on human beings, unless it is done under strict supervision of the experts and with permission by Indian Council of Medical Research. There is no such permission given to Electrohomeopathy. On the contrary the representative of ICMR present in the committee constituted by the Central Government, had not accepted Electrohomeopathy as system of medicine.35
17. We strongly deprecate the efforts made by the Electro homeopaths, who have been warned time and again not to approach this Court for continuing with the practice of un- recognised system of medicine, which is nothing but quackery.
18. We once again remind all the respondent authorities that the right to health recognised by Art. 21 enjoins the State to protect the general public from the practitioners of the unrecognised systems of medicine, which have no known methods of medical practice nor their systems have been recognised by the Ministry of Health, Government of India, or are regulated by any legislation."
14. In the light of discussion in the foregoing paragraphs, we are of the considered view that the prayer of the petitioner to allow the petitioner to conduct the course of Electropathy and Electro-homeopathy cannot be considered. Merely because the affidavit-in-reply filed by the Union of India before the Hon'ble the Supreme Court in S.L.P. (C) No. 23572 of 2009 (G.G.S. Med. Inst. of & Hosp. of Elect. & Anr. Vs. Union of India and others) complains that there is no ban on the medical Practice of Electro Homeopathy, it cannot be a ground to entertain the prayer of the petitioner to allow the petitioner to conduct the course of 36 electropathy/Electro-homeopathy. There are elaborate reasons given by the Division Bench of Allahabad High Court in the case of Indian Electro Homeopathy Medical Council and another (supra). We do not see any reason to take a different view than that has been taken by the Division Bench of Allahabad High Court."
10. In view of the above discussions, I am of the view that the impugned order of taking cognizance of offence under section 420 read with section 34 of the Indian Penal Code and issuance of process against the petitioner cannot be faulted with and it does not suffer from any unreasonableness, arbitrariness or unfairness and therefore, I am not inclined to interfere with the same invoking inherent power under section 482 of Cr.P.C.
Accordingly, the CRLMC application being devoid of merits stands dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 2nd January 2017/Pravakar