Madhya Pradesh High Court
Smt. Rita Kushwah W/O Shri Naveen ... vs The State Of Madhya Pradesh on 10 May, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 10 th OF MAY, 2024
MISC. CRIMINAL CASE No. 13595 of 2024
BETWEEN:-
SMT. RITA KUSHWAH W/O SHRI NAVEEN KUSHWAH
D/O SHRI RAMEHARAN KUSHWAH, AGED ABOUT 45
YEAR S , R/O 101, LAXMI RESIDENCY, BANSHI KI
BAGIYA, RAJ RAYGA ROAD, LASHKAR, GWALIOR
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI GAGAN SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH THE
CHIEF MEDICAL AND HEALTH OFFICER (PARVEKSHI
ADHIKARI M.P UPCHARYAGRAH TATHA ANUGYAPAN)
ADHINIYAM 1973 DISTRICT GWALIOR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUSHANT TIWARI - PUBLIC PROSECUTOR)
This application coming on for admission this day, the court passed the
following:
ORDER
The present petition under Section 482 of Cr.P.C. has been directed against the order dated 08.09.2021 passed by Judicial Magistrate First Class Gwalior whereby the cognizance has been taken against the present petitioner under Section 3 r/w 8 of The Madhya Pradesh Upcharyagriha Tatha Rujopchar Sambanchi Sthapnaye (Registrikaran And Anugyapan) Adhiniyan 1973 (hereinafter referred as to "Adhiniyam, 1973"). The petitioner is further aggrieved by the order dated 10.02.2024 passed by VIIIth Additional Sessions Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 14-05-2024 01:55:37 PM 2 Judge Gwalior in Criminal Revision No.184/2021 whereby the order passed by learned court below taking cognizance in the aforesaid sections has been affirmed and criminal revision has been dismissed.
2. Learned counsel for the petitioner at the very outset fairly stated that earlier one M.Cr.C. No.2870/2021 was filed challenging the private complaint on the basis of which the cognizance has been taken, was dismissed as withdrawn with the liberty to raise all the defenses which may be available to the petitioner at the time of hearing during trial and since the cognizance has now been taken against the order taking cognizance, a criminal revision was preferred and after its dismissal, the present petition under Section 482 Cr.P.C. has been preferred.
3. Learned counsel for the petitioner vehemently argued that as per Section 3 of the Adhiniyam, 1973, it is only in the cases where nursing homes or clinical establishments are opened and carried out without registration and licence, the offence under the said Act and section shall be made out and in consequence thereof, a person can be penalized as per Section 8 of the Adhiniyam, 1973, but herein case, the only allegation which has been levelled against the present petitioner is that she had given consultation to one patient in regard to termination of her pregnancy and for that had charged Rs.300/- towards fees and as the question of running of nursing home or clinical establishment is not made out against the petitioner, therefore, cognizance taken under Section 3 of Abhiniyam, 1973 is per se illegal.
4. Learned counsel for the petitioner has taken exception to schedule 3 Part B of Madhya Pradesh Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registrikaran Tatha Anugyapan) Rules, 1997 wherein certain Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 14-05-2024 01:55:37 PM 3 norms are required for establishing a nursing home as well as reference has been made of the requirements for a clinical establishment and has argued that none of the requirements of a nursing home or clinical establishment was found at the residence of petitioner, who was at that very moment living in a Government accommodation and was working as "Demonstrator" in G.R. Medical College Gwalior and since prima facie the fact of the establishment of any nursing home or clinical establishment was not found at the residence of the petitioner, therefore, the order by which cognizance was taken against the petitioner under Section 3 of Adhiniyam, 1973 is perverse and deserves to be quashed.
5. It was further submitted that learned Revisional Court without considering this aspect in Para 9 of its order had just went on to affirm the order passed by learned trial Court and concluded that from bare reading of the complaint and the statements of witnesses, panchaytnama recording of present petitioner and decoy lady, it prima facie appears that offence under Section 3 of the Adhiniyam, 1973 is made out which is without any discussion and without any reasoning and therefore, deserves to be quashed.
6. To bolster his submissions, he has placed reliance in the judgment rendered by the Hon'ble Apex Court in the case of Kanwarjit Singh Kakkar Vs. State of Punjab and another (2011) 13 SCC 158 and while referring to Para 29, it is contended that at the most the act of the petitioner could be covered under professional misconduct, as she could be said to have been indulged in private practice while holding the office of Government Doctor without permission and at the most could only be proceeded for departmental proceedings under the service Rules but no offence under the IPC could be registered against her. Thus, it was submitted that the present petition deserves to be allowed and the impugned order for taking cognizance by the learned Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 14-05-2024 01:55:37 PM 4 counsel trial Court as well as its affirmation by the learned Revisional Court deserves to be quashed.
7. Per contra, Shri Tiwari, learned Public Prosecutor on advance notice, submits that so far as the question of taking cognizance under Section 3 of the Adhiniyam, 1973 is concerned, it is not only running for nursing home without any registration and licence that would attract the provision of Section 3, it would also be attracted in a case where clinical establishment is running without registration and licence. He further placed reliance on the definition of "Clinical Establishment" as provided under Section 2 (aa) of the Adhiniyam, 1973 which provided that "Clinical Establishment" means a medical laboratory, a physico- therapy establishment, a clinic or an establishment analogous to any of them and since the petitioner was running a clinic at the house which comes within the definition of "Clinical Establishment", the cognizance taken under Section 3 of Adhiniyam, 1973 cannot be said to be perverse or illegal.
8. It was further submitted that as per dictionary meaning of "clinic", it is a a building or part of a hospital where people go for medical care and advice. and as per oxford dictionary word "clinic" means " a small hospital or a part of hospital where you got to receive special medical treatment or where a doctor sees patients and gives special treatment or advice. " Thus, from the very definition of word "clinic", it can very well be said that the petitioner was operating clinic and was giving consultation to the patients which is included in the definition of clinical establishment. Thus, on the basis of aforesaid, it was submitted that the present petition being devoid of merits and substance, deserves to be dismissed.
9. Heard learned counsel for the parties and perused the record.
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 14-05-2024 01:55:37 PM 510. Learned trial Court on the basis of private complaint had taken cognizance against the present petitioner under Section 3 r/w 8 of the Adhiniyam, 1973. Section 3 of the said Adhiniyam, 1973 provides for registration or obtaining licence for running a nursing home or clinical establishment. For reference, Section 3 of the Adhiniyam, 1973 is quoted below:-
"3. Nursing home or clinical establishment not to be opened, kept or carried on without registration and licence - No person shall open, keep or carry on a nursing home or a clinical establishment without being registered in respect thereof and except under and in accordance with the terms of a licence granted therefor"
11. The aforesaid section apart from nursing home also deals with clinical establishments and specifically lays down that no person shall open, keep or carry apart from a nursing home, a clinical establishment without being registered in respect thereof and except under and in accordance with the terms of a licence granted therefor and so far as term "clinical establishment" is concerned, it is defined under Section 2 (aa) of the Adhiniyam, 1973 and reads as under:-
"Clinical Establishment" means a medical laboratory, a physical-therapy establishment, a clinic or an establishment analogous to any of them, by whatever named called;"
12. The term "Clinical Establishment" includes in its purview "a clinic"
which means a place for giving medical advice or care and also includes an establishment analogous to it. Thus, at this juncture, it cannot be said that the provision of Section 3 of the Adhiniyam, 1973 is not attracted in the present Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 14-05-2024 01:55:37 PM 6 matter as the very allegation levelled against in the private complaint made against the present petitioner is that she had given advice to a patient for abortion and in that regard had charged a fee of Rs.300/-.
13. So far as reliance placed by learned counsel for the petitioner on Rule 18 and Schedule 3 of Madhya Pradesh Upcharyagriha Tatha Rujopchar Sambandi Sthapanaye (Registrikaran Tatha, Anugyapan) Rules, 1997 is concerned, the requirement of clinical establishment whether fulfilled or not, would be a matter of evidence and the same could be established by either of the parties during trial. Thus, this aspect cannot be gone into at this juncture.
14. So far as reliance placed by learned counsel for the petitioner in the matter of Kanwawrjit Singh Kakkar (supra), this Court finds that in the said matter offence punishable under Section 13 (1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 and Section 168 of IPC was registered against the petitioner and the allegation against the petitioner, who was medical officer working with State Government of Punjab, was that he was doing private practice in the evening and was charging Rs.100/- in cash per patient as prescription fee and the contents of FIR were that as per the government instructions, the government doctors are not supposed to charge any fee from the patients for checking them as the same was contrary to the government instructions. In view of the allegations, a raid was conducted at the premises of doctors and they were trapped receiving Rs.100/- as consultation charges from the complainant and in that context, the Hon'ble Apex Court in Para 29 of the said judgment has held that the conduct of the appellant therein who was alleged to have indulged in private practice while holding the office of government doctor and hence could be said to be a public servant, at the most, could be proceeded with for departmental proceedings under the Service Rules but Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 14-05-2024 01:55:37 PM 7 insofar as making out of a offence either under the Prevention of Corruption Act or under IPC, would be difficult to sustain as it was already observed that examination of patients by doctors and thereby charging professional fee, by itself, would not be an offence.
15. Further in Para 30 of the said judgment, it has been observed by the Hon'ble Apex Court that the appellant therein even as per the FIR as it stands, can be held to have violated only the government instructions which itself has not termed private practice as "corruption" under the Prevention of Corruption Act merely on account of charging fee as the same in any event was a professional fee which could not have been charged since the same was contrary to government instructions. The said act clearly would fall within the ambit of misconduct to be dealt with under the Service Rules but would not constitute criminal offence under the Prevention of Corruption Act and IPC.
16. In the present matter, offence punishable under the Prevention of Corruption Act and IPC have not been registered, rather offence under Section 3 r/w 8 of Adhiniyam, 1973 is registered which is altogether different offence. Thus, the said judgment cited by the petitioner has no applicability with the present matter.
17. In view of the aforesaid, this Court finds that learned trial Court as well as Revisional Court had not committed any illegality or perversity in taking cognizance in the matter.
18. Accordingly, present petition sans merits stands dismissed.
(MILIND RAMESH PHADKE) Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 14-05-2024 01:55:37 PM 8 JUDGE ojha Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 14-05-2024 01:55:37 PM