Karnataka High Court
Dr. Ramakrishna Mane vs Xyz (Identity Of The Respondent Is ... on 21 December, 2021
IN THE HIGH COURT OF KARNATAKA
AT DHARWAD BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.P.NO.102142/2021
C/W
CRL.P.NO.102144/2021
IN CRL.P.NO.102142/2021 :
BETWEEN:
DR.RAMAKRISHNA MANE,
ADDITIONAL CHIEF MEDICAL SUPERINTENDENT,
AGE : 56 YEARS,
CENTRAL HOSPITAL,
SOUTH WESTERN RAILWAY,
GADAG ROAD,
HUBBALLI-580020.
... PETITIONER
(BY SRI AJAY U.PATIL, ADV.)
AND :
XYZ
(IDENTITY OF THE RESPONDENT
IS CONCEALED IN VIEW OF
SECTION 34 OF THE ACT.)
... RESPONDENT
(BY SRI.SOURABH A.SONDUR, ADV.)
THIS PETITION IS FILED UNDER SECTION 482 OF THE
CODE OF CRIMINAL PROCEEDURE PRAYING THIS COURT TO
QUASH THE ENTIRE PROCEEDINGS IN HIV AIDS (P&C) ACT-SPL
C.C.NO.2565/2021 ON THE FILE OF J.M.F.C-II COURT, HUBLI
AND FURTHER BE PLEASED TO REVERSE AND SET ASIDE THE
2
ORDER DATED 28.09.2021 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 37 OF HIV & AIDS (PREVENTION & CONTROL)
ACT, 2017.
IN CRL.P.NO.102144/2021 :
BETWEEN:
DR.C.M.RAVI,
CHIEF MEDICAL SUPERINTENDENT,
AGE : 58 YEARS,
CENTRAL HOSPITAL,
SOUTH WESTERN RAILWAY,
GADAG ROAD, HUBBALLI-580020.
... PETITIONER
(BY SRI AJAY U.PATIL, ADV.)
AND :
XYZ
(IDENTITY OF THE RESPONDENT
IS CONCEALED IN VIEW OF
SECTION 34 OF THE ACT.)
... RESPONDENT
(BY SRI.SOURABH A.SONDUR, ADV.)
THIS PETITION IS FILED UNDER SECTION 482 OF THE
CODE OF CRIMINAL PROCEEDURE PRAYING THIS COURT TO
QUASH THE ENTIRE PROCEEDINGS IN HIV AIDS (P&C) ACT-SPL
C.C.NO.2565/2021 ON THE FILE OF J.M.F.C-II COURT, HUBLI
AND FURTHER BE PLEASED TO REVERSE AND SET ASIDE THE
ORDER DATED 28.09.2021 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 37 OF HIV & AIDS (PREVENTION & CONTROL)
ACT, 2017.
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
3
: COMMON ORDER :
Though the matter is listed for admission, with consent of the learned counsel appearing for the parties, it is taken up for final disposal.
2. The petitioner in Crl.P.No.102142/2021 being accused No.1 and petitioner Crl.P.No.102144/ 2021 being accused No.2 are before this Court seeking to quash the entire criminal proceedings initiated against them in HIV AIDS (P&C) Act Spl.C.C.No.2565/2021 pending on the file of the Court of J.M.F.C-II Court at Hubballi ("the Trial Court"
for short) for the offence punishable under Section 37 of the HIV and AIDS (Prevention and control) Act, 2017 ("the Act" for short).
3. Brief facts of the case are that, the respondent filed a private complaint against accused Nos.1 and 2 alleging commission of the offence violating Section 4 of the Act. It is stated that he is working as Senior Technician in Signal and 4 Telecommunication Department, South Western Railway, Bagalkot and served for 23 years is due for retirement on 30.11.2022. While working in Bagalkot during February-2016, the complainant fell ill and was admitted to Railway Hospital, Hubballi for treatment. They have not provided proper treatment and therefore he got discharged himself and took treatment in District Hospital, Bagalkot. He was diagnosed with ID+VE and gave ART treatment for about two years. Since the complainant had to seek sick leave and he was required to produce medical certificate, he again approached the Railway Hospital where accused Nos.1 and 2 were serving. Accused Nos.1 and 2 have not provided proper medical care. But on the other hand they started spreading roomer that the respondent is an AIDS patient. The complainant was referred to various other hospitals, which made the complainant to spend more than Rs.6.00 lakh. But he had not recovered from his illness.
5
4. It is further stated that, the complainant did not find any recuperation and requested accused Nos.1 and 2 to declare him to be unfit to perform his duties in railways. But accused Nos.1 and 2 with malicious intention denied the health care services, but issued the certificate dated 09.06.2021, wherein it is categorically mentioned that the complainant is having HIV and forwarded the same to Senior Divisional Personal Officer, South Western Railway, Hubballi and Senior Divisional Signal and Tele- Communication Engineer, South-Western Railway, Hubballi and thereby they contravened Sections 3 and 4 which is punishable under Section 37 of the Act. Accordingly prayed the trial Court to take cognizance of the offence and to initiate legal action against both the accused.
5. It is stated that, the Trial Court took cognizance of the offence and issued summons to the accused. Being aggrieved by the issuance of the 6 summons, accused Nos.1 and 2 are before this Court by filing separate petitions.
6. Heard Sri Ajay U.Patil, learned counsel for the petitioners and Sri Sourabh A.Sondur learned counsel for the respondent.
7. Learned counsel for the petitioners submits that the petitioners are qualified doctors who are working in Central Hospital, South Western Railways, Hubballi. The complaint being the patient requested for issuance of certificate to enable him to get necessary benefits from the department. Accordingly a certificate was issued. The complainant was insisting for recuperation certificate, which was not issued by these petitioners. Such a certificate would mean declaration of the complainant to be unfit to discharge their official duty. As the accused have not issued such certificate, a false complaint was came to be filed. Learned counsel also submitted that, as the medical officers, the petitioners are bound to act in 7 accordance with section 3 of the Act. Therefore, it is the contention of the learned counsel for the petitioners that the certificate is question was issued on request of the complainant. In view of Section 3(a)(i) of the Act no offence whatsoever was committed by them which is punishable under Section 37 of the Act. Learned counsel for the petitioners contend that even though the respondent was having medical complication and was under the constant supervision since 2016, his health condition was being referred to in all the medical records as immunodeficiency syndrome on ART. But for the first time, the petitioners disclosed his health condition as HIV+ve.
8. The next contention raised by the learned counsel for the petitioners is that the complainant has not obtained the sanction to prosecute the petitioners who are admittedly the public servants. In the absence of sanction, the Trial Court could not have 8 taken cognizance of the offence against the petitioners.
9. Thirdly it is contended that, the Trial Court has rejected the application filed by the petitioners for grant of certified copies of the documents which are produced along with the complaint. Even the ordered taking cognizance for the purpose of issuance of summons to the petitioners is not also made available. In the absence of any such documents, the petitioners cannot defend the charge against them. Therefore, he prays for quashing of criminal proceeding which is initiated in abuse of process of the Court in the interest of justice.
10. Per contra, learned counsel for the respondent opposing the submission made by the learned counsel for the petitioners submitted that no sanction is necessary in view of Section 42 of the Act, which begins with non-obstinate clause. This special enactment prevails over the general provisions of the 9 Cr.P.C. Disclosure of the status of the patient suffering from a particular ailment covered under the Act, is specifically prohibited under Section 8 of the Act. Therefore, disclosure of such status cannot be under the commission of the duty of the petitioners and petitioners cannot contend that they have discharged their official duty, which is specifically prohibited under the provisions of special enactment. Therefore, no sanction is necessary to prosecute the petitioners.
11. Learned counsel for the respondent has drawn my attention to the certificate of physical fitness of the employee dated 01.02.2021 issued by accused No.1. He does not referred to the exact status of the complainant with which he is suffering. However, in Annexure-XX, i.e., certificate of recommendation for alternative employment on medical grounds (AEMG) issued by South Western Railway Medical Department, Hubli Division , which is 10 signed by both the accused, the specific terms relating to the ailment and the physical condition of the complainant is mentioned, which is said to have been found in the proceedings of the Medical Board, constituted for the purpose. The proceedings of the Medical Board was required to be forwarded in a sealed cover concealing such status of the complainant in compliance of Section 8 of the Act. But accused Nos.1 and 2 knowing fully well about the prohibition are disclosing such status deliberately and issued the certificate and also it to the employer. As a result of which, the memorandum dated 29.06.2021 was issued by the employer i.e., Assistant Personnel Officer, SWR, Hubli, extracting the same wordings from the certificate by accused Nos.1 and 2. Moreover, this memorandum was also ordered to be displayed in the notice board.
12. Learned counsel for the respondent submits that the employer who signed the 11 memorandum dated 29.06.2021 extracting the exact wordings used by accused Nos.1 and 2 herein to disclose the health condition of the complainant is also being prohibited by fling private complaint, which is pending for consideration before the trial court.
13. The learned counsel for respondent submits that Chapter IV of the Act deals with disclosure of HIV status and Section 8(1)(ii) specifically prohibits disclosing such status or any other private information of other person imparted in confidence or in a relationship of a fiduciary nature, except with the informed consent of that other person or a representative of such another person obtained in the manner as specified in Section 5 of the Act. The proviso makes it clear that such informed consent shall be recorded in writing. In the present case, there is violation of this specific provision of the Act and therefore, the petitioners cannot claim that they have acted in discharge of their official duty and they 12 cannot contend that sanction under Section 197 of Cr.P.C. is mandatory.
14. Learned counsel drawn my attention to Section 34 of the Act with request to conceal the identify of the complainant in the present proceedings. He has also drawn my attention to Rule 11 of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Ombudsman and Legal Proceedings) Rules, 2019 framed by the Health and Family Welfare Secretariat, Bengaluru as per the powers conferred by Section 49 r/w Sections 23, 24 and 25 of the Act, which deals with manner of recording pseudonym and providing concealment of identity in legal proceedings.
15. Learned counsel for the respondent placed reliance on the decision of the Hon'ble Apex Court in the case of Union of India vs Ashok Kumar Sharma and Others1 to contend that, when the 1 AIR 2020 SC 5274 13 Legislature in its wisdom conferred express power for disclosure of certain facts, the same cannot given a go bye by contending that the petitioners being the public servants and medical officers are authorized to disclose the same and they have discharged their duties in their official duty and therefore, sanction under Section 197 of Cr.P.C. is a must. Learned counsel would contend that fundamental right conferred under Article 21 of the Constitution of India is in clear violation in view of the act committed by the petitioners and therefore, the petitioners cannot be protected under the provisions of Cr.P.C.
16. He has also placed reliance on the decision of the Hon'ble Apex Court in the case of Choudhary Parveen Sultana vs State of West Bengal and Another2 to contend that the object with which Section 197 of Cr.P.C. was brought into force i.e., to provide a shield to the public servants against the frivolous, vexatious or false prosecution initiated 2 2009 CrI.L.J.1318 14 against them. But such shield cannot be used to protect the erring public servants who misused their authority and acted beyond in violation of the specific provision contained in the special enactment.
17. Therefore, the learned counsel for the respondent would contend that the act committed by the petitioners are not in discharge of their official duties and they have not acted with bona fides, but deliberately they disclosed the proceedings of the Medical Board by issuing a certificate openly in favour of the employer by referring to the exact medical status of the respondent which is specifically prohibited under the Act. Therefore, no sanction is necessary to prosecute the petitioners.
18. He further submitted that when there are specific allegations made against the petitioners for having committed the offence, the petition cannot be quashed at this stage. Petitioners are at liberty to take any of these defences before the trial court 15 during trial. It is for the trial court to give a finding that the petitioners are liable for the offence or not. Hence he prays for dismissal of the petitions as devoid of merits.
19. Perused the material on records.
20. In the light of the rival contentions of the learned counsel for the parties, the point that would arise for consideration of this Court is as follows:
Whether the criminal proceedings
initiated against the petitioners in
Spl.C.C.No.2565/2021 on the file of the Trial Court for the offences punishable under Sections 37 the Act is liable to be quashed under Section 482 of Cr.P.C?
21. My answer to the above point is in he 'negative' for the following:
: REASONS :
22. It is the specific contention of the respondent-complainant that he is diagnosed with 16 ID+ve (Immune Deficiency Positive) and was under
regular treatment both in Central Hospital, South and Western Railway, where the petitioners are working as Chief Medical Superintendent and Additional Chief Medical Superintendent, and also at District Hospital, Bagalkot. When the complainant requested for recuperation, accused Nos.1 and 2 deliberately issued certificate dated 09.06.2021 specifically mentioning that the respondent is having HIV+ve and thereby contravened Sections 3 and 4, punishable under Section 37 of the Act.
23. I have perused the certificate, which is admittedly issued by these petitioners. The certificate for medical fitness of the employee dated 01.02.2021 is issued by petitioner No.1 in his capacity as Additional Chief Medical Superintendent, South- Western Railway, Hublil, wherein there is no reference to the health condition of the respondent, which can be find fault with. However, the certificate 17 of recommendation for alternative employment on medical ground (AEMG), which is in Annexure-XX, both the petitioners have certified that the respondent is having HIV associated dementia as diagnosed by Medical Board of NIMANS of Bengaluru.
24. It is the contention of the respondent that this certificate was not forwarded confidentially to the employer. But on the other hand, it was forwarded as any ordinary communication and as a result of which the information was publicized in the office of the respondent and all other concerned and thereby they have contravened Section 3 and 4 punishable under Section 37 of the Act.
25. Learned counsel for the respondent drawn my attention to the memorandum dated 29.06.2021 issued by the Assistant Personal Officer, South- Western Railway, Hubli where there is reference to the very letter dated 09.06.2021 issued by petitioner Nos.1 and 2 referred to above and extracted the 18 same wordings to say that respondent is having HIV associated dementia as diagnosed by Medical Board, NIMANS, Bengaluru. It is pertinent to note that this memorandum is also ordered to be displayed in the notice board apart from forwarding the copy of it to various other officers.
26. Chapter 4 of the Act deals with disclosure of HIV status and Section 8(1) begins with non obstente clause and Section 8(1) (ii) prohibits a person from disclosing the HIV status or any other private information of other person, who imparted in confidence or relationship to a fiduciary nature. These petitioners being the Medical Offices are definitely in the fiduciary relationship with the respondent. Section 3 of the Act deals with prohibition against discrimination it has protected person and Section 4 deals with act of discrimination. This Section prohibits any representation by way of words either spoken or written, public, propagate, advocate, or communicate 19 any signs or by visual representation against any protected person or disseminate any information. The word protected person is defined in Section 2(s) of the Act to means a person who is (i) HIV+ve. Therefore, it is clear that the respondent is diagnosed HIV+ve and the said fact was disclosed by petitioners herein while issuing the certificate referred to by the respondent and forwarded the same openly to the employer of the respondent, which resulted in issuance of the memorandum by the employer and also displayed of the same in the notice board coupled with forwarding of copies to various other officers.
27. Even though, learned counsel for the petitioners contended that the sanction required under Section 197 of Cr.P.C is not obtained to prosecute the petitioner and therefore, the proceedings against them is to be quashed, the same cannot be up held in view of the fact that the 20 petitioners being the Medical Officers are prohibited under the provisions of the Act, not to disclose the HIV status of the patient and in clear contravention of such specific prohibition, the certificate in question was issued by specifically referring to the HIV status of the respondent. Under such circumstances, the petitioners cannot seek protection under Section 197 of Cr.P.C. At this stage, I do not find it necessary that a sanction to prosecute the petitioners should have been obtained by the respondent to prosecute them. However, if during the course of trial when additional materials are placed before the Court if it finds it proper to consider the requirement of sanction, the trial Court will be at liberty to consider the same.
28. Learned counsel for the petitioners contended that medical certificate referred to by the respondent was in fact sent in a sealed cover and therefore, none of the provisions of the Act were violated. He also contended that the respondent 21 himself referred to his health condition as ID+ve in the communication forwarded by him and therefore, he cannot find fault with, the petitioners in referring to his health condition. I do not find any force in the contention taken by the learned counsel for the petitioners in this regard since, the medical certificate referred to above do not suggest that the same was forwarded confidentially. Moreover, the documents that are highlighted by the learned counsel for the petitioners said to have been written by the respondent disclose his health condition only as ID+ve, but not as HIV+ve. Therefore, I am not inclined to accept the contention of the learned counsel for the petitioners.
29. When such prima-facie materials are available against the petitioners, I am of the opinion that it is not a fit case quash the criminal proceedings. However, the petitioners are at liberty to take necessary defines during trial before the trial 22 Court. Accordingly, I answer the above point in the "negative" and proceeded to pass the following;
ORDER The criminal petitions are dismissed. However, the petitioners are at liberty to take all such defences that are available to them before the trial Court, during trial.
Registry is directed to take note of Section 34(1)(2) of the Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 and Rule 11 of the Rules and taken necessary action for concealment of the identity of the respondent in the legal proceedings before this court.
In view of dismissal of the above petitions, pending applications if any, do not survive for consideration. Accordingly disposed off.
SD/-
JUDGE EM/MBS/AM