Delhi District Court
State vs . Shankar Prasad on 16 November, 2018
IN THE COURT OF Ms. SHIVALI SHARMA CHIEF METROPOLITAN MAGISTRATE EAST: KARKARDOOMA COURT: DELHI FIR No. : 401/04 PS : Kalyanpuri U/S : 27 DMC Act STATE Vs. Shankar Prasad JUDGMENT :
A Unique ID No. of the New No. 11435/16 case B Name of the Dr. S.K. Khatri, Secretary and Registrar complainant Delhi Medical Council C Name of the accused persons & their parentage and Shanker Prasad s/o Sh. Keshav Prasad addresses r/o 19/16, Kalyanpuri, Delhi D Offence Complained of 27 Delhi Medical Council Act. E Date of commission of 21.04.2003 offence. F Date of Institution 21.06.2007 G Offence Charged 27 Delhi Municipal Council Act H Plea of the accused Pleaded not guilty I Order Reserved on 16.11.2018 Date of Pronouncement 16.11.2018 K Final Order Acquitted. FIR No.401/04 State vs. Shanker Prasad Page 1 of 11
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The story of the prosecution is that on 21.04.2003 at Savitri Clinic 19/16 Kalyanpuri Delhi, accused Shanker Prasad was found practising modern scientific system of medicine (Allopathy) without being a medical practitioner as defined in section 2 (7) of Delhi Medical Council Act, 1997 (hereinafter referred to as DMC Act) . Thereby he is alleged to have committed offence punishable u/s 27 of DMC Act.
FIR 2 On the basis of the said allegations and on the basis of complaint Ex. PW 2/C and directions issued by Ld. MM on the application u/s 156 (3) Cr.P.C. filed by complainant Dr. SK Khatri, Secretary and Registrar, Delhi Medical Council (DMC) which is Ex. PW 2/D, present FIR Ex. PW 1/A, bearing number 401/04 u/s 27 DMC Act was lodged on 19.08.2004. NOTICE 3 After investigation, chargesheet under section 173 Cr. P.C was filed on 21.06.2007.
FIR No.401/04 State vs. Shanker Prasad Page 2 of 114 On the basis of the chargesheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 27 DMC Act was framed against accused Shankar Prasad and read out to him, to which he pleaded not guilty and claimed trial on 13.03.2008.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 08 witnesses in all:
6 PW1 is a formal witness being the duty officer who proved the registration of present FIR which is Ex. PW 1/A. 7 PW 2 is the complainant Dr. SK Khatri who deposed that on 07.03.2003, he was posted as Registrar and Secretary of DMC and was informed by the Director, Health services, Govt. of NCT of Delhi vide letter dated 07.03.2003 (mark X) that accused Shankar Prasad of Savitri Clinic 19/16, Kalyanpuri Delhi was found practising allopathic system of medicine without requisite qualifications. Based on the said information, he issued a show cause notice dated 21.04.03 (Ex. PW 2/A) to the accused directing him to appear before him on 06.05.03 to explain why he was doing so. Pursuant to the said show cause notice accused appeared before him on 06.05.2003 at 2.30 pm and stated that he was not possessing any medical qualification which entitled him to practice allopathic system of medicine.FIR No.401/04 State vs. Shanker Prasad Page 3 of 11
The reply given by accused is Ex. PW 2/B. Thereafter he made a complaint before Ld. CMM on 02.07.03 which is Ex. PW 2/C alongwith an application u/s 156 (3) Cr.P.C. which is Ex. PW 2/D on the basis of which present FIR was registered. He identified the accused.
8 PW 3 Chander Mohan Mittal is a pharmacist who had conducted raid on the Savitri Clinic as per the case of the prosecution. He deposed that in the year 2004 he alongwith Dr. Sudhir Prasad / PW 6 office of CDMO East Distt, DHS, Delhi Govt had visited the clinic of accused Shanker Prasad and asked him to produce certificate for practicing as medical practitioner. The accused produced photocopy of the certificate which is mark A and same was submitted by PW 6 in the office of CDMA. He identified the accused.
9 PW 6 Dr. Sudhir Prasad is the second witness who had conducted raid at the clinic of the accused as per the case of the prosecution. He also did not tell the date of visit to the clinic but stated that in the year 2003, he alongwith PW 3 Chander Mohan Mittal, Pharmacist had visited the clinic of the accused Shanker Prasad. They asked the persons sitting n the clinic as presumed doctor to produce the certificate as medical practitioner on which accused produced photocopy of certificate mark A. The said certificate and other documents given by the accused were submitted in the office of CDMO Incharge East FIR No.401/04 State vs. Shanker Prasad Page 4 of 11 Distt, Delhi. He identified the accused.
10 PW 4 Ct. Vindyanchal is a formal witness being witness to the arrest and personal search of the accused vide memos Ex. PW 4/B and 4/C. He also deposed that disclosure statement of the accused Ex. PW 4/A was recorded by the IO in his presence. He identified the accused.
11 PW 5 Retd.SI Harpal Singh is one of the IO of the case to whom the investigation was marked on 14.10.06. He deposed that during investigation he recorded statement of PW Jai Singh on 14.03.2007. Since the investigation was already completed, he prepared the charge sheet in the matter. 12 PW 5A Inspector Pawan Kumar is another IO of the case who was marked the investigation on 19.08.04 but could not make any investigation due to his suspension on the same day. 13 PW 7 Inspector Manoj Kumar Mishra is the first IO of the present case. He deposed that he was handed over the investigation in April 2005. During investigation he issued a notice to Directorate of Health Services, KKD for providing the original documents regarding the Savitri Clinic which was being run by accused Shanker Prasad. He received a letter Ex. PW 7/A dated 05.10.05 alongwith the document, Proforma A Anti Quackery DriveStrengthening of Surveillance work which is Ex. PW 7/B which was filled up by accused Shanker Prasad. He FIR No.401/04 State vs. Shanker Prasad Page 5 of 11 also issued notice to Directorate of Health Service for providing names of members of raiding party and the reply to the same was received vide letter dated 02.08.06 which is Ex. PW 7/C. 14 During the course of investigation he arrested and personally searched the accused vide memo Ex. PW 4/B and C and also recorded his disclosure statement. Thereafter he was transferred from the PS. 15 One public witness namely Jai Singh was also named in the list of witnesses but he could not be examined due to his demise.
STATEMENT OF ACCUSED 16 Statement of accused was recorded u/s. 313 Cr.P.C. on 16.11.2018 wherein the entire incriminating evidence proved on record against him was put to him. He stated that he was innocent and falsely implicated in the present case. He denied having ever practiced in allopathy system of medicine. He also denied having received any show cause notice from PW 2. He stated that all the documents were fabricated in order to falsely implicate him in this case.
DEFENCE EVIDENCE 17 The accused did not lead any evidence in his defence. 18 Final arguments have been heard and record carefully FIR No.401/04 State vs. Shanker Prasad Page 6 of 11 perused.
JUDICIAL RESOLUTION 19 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused persons to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
20 Section 27 of the DMC Act 1997 provides punishment to any person who falsely assumes that he is a medical practitioner or practitioner as defined in clause (7) of Section 2 of the Act and practices the modern system of medicine without being so. 21 Section 2(7) of DMC Act defines the term Medical Practitioner or Practitioner to mean a person who is engaged in the practice of modern scientific system of medicine and all its branches and have qualifications as prescribed in the first, second or third schedule to the Indian Medical Council Act 1956. 22 The ScheduleI appended to the Medical Council Act 1956 FIR No.401/04 State vs. Shanker Prasad Page 7 of 11 provides the list of recognised medical qualifications granted by universities or medical institution in India. The Second Schedule provides the list of recognised medical qualifications granted by medical institutions outside India. While the Third Schedule provides the list of medical qualification granted by Medical institutions not included in the first schedule. 23 A comprehensive regarding of these schedules with section 2 (7) of DMC Act makes it clear that a medical practitioner is a person who is duly qualified from a recognised university or medical institution as described in the said schedule. 24 Section 27 provides punishment for a person who is not a medical practitioner in terms of section 2(7) yet he assumes himself to be a qualified medical practitioner. 25 In the present case as per original complaint Ex. PW 2/C, the case of the prosecution is that the accused has been found to be practicing allopathic system of medicine from Savitri Clinic, 19/16, Kalyanpuri Delhi without possessing the requisite qualifications for being a medical practitioner and accordingly he is guilty of committing offence u/s 27 DMC Act. 26 In order to prove its case the prime fact which was required to be proved by the prosecution was that the accused was found practicing allopathic system of medicine. The question whether he was qualified for the same or not comes after the fact of him practicing allopathic system of medicine is proved on record FIR No.401/04 State vs. Shanker Prasad Page 8 of 11 beyond any reasonable doubt.
27 As per the case of the prosecution there were two witnesses who had visited the Savitri Clinic and found the accused to be practicing allopathic system of medicine from Savitri Clinic, 19/16 Kalyanpuri, Delhi. As per the letter dated 02.08.2006 of Dr. B. Nath, CMO, HQ (HOO) addressed to the IO of the present case, SI Manoj Kumar/ PW 7 which is proved as Ex. PW 7/C, the Savitri Clinic was inspected on 13.12.2002 by Dr. Sudhir Prasad , CMO and Mr. Chander Mohan Mittal, Pharmacist. These two witnesses have been examined by the prosecution as PW 6 and 3 respectively. These witnesses are the prime witnesses to prove the allegations of prosecution regarding practicing of allopathic medicine by the accused at Savitri Clinic.
28 While PW 3 / Chander Mohan Mittal stated that he had visited the clinic of accused Shanker Prasad in the year 2004, as per the testimony of PW 6/ Dr. Sudhir Prasad, the said visit was made in the year 2003. None of these witnesses have given any specific date of the said visit or inspection. The year given by them are contradictory amongst themselves and also contradictory to the letter Ex. PW 7/C referred to above wherein the date of inspection is mentioned as 13.12.2002. In addition, as per PW 3 they had visited the clinic and asked accused Shanker Prasad to produce a certificate for practicising as FIR No.401/04 State vs. Shanker Prasad Page 9 of 11 medical practitioner on which he produced photocopy of a certificate issued by Board of Electro Homeopathy System of Medicine which is mark A. As per PW 6 also on asking the accused he had produced photocopy of the certificate Mark A. none of these witnesses have deposed that at the time of their visit, they had found the accused practicing allopathic system of medicine. Neither any photograph of the clinic had been taken nor any documents such as prescription slips, letter head etc have been seized by them. They also did not examine any person or alleged patient to whom the accused was giving allopathic medicine or treating as per the allopathic system of medicine. Accused, on the other hand has given them his registration certificate for practicing homeopathic system of medicine. In the absence of any specific deposition by these two inspecting witnesses to the effect that accused was found practiicing allopathic system of medicine, there is nothing on record to presume the same. In these circumstances, the prosecution has miserably failed to prove the fact that accused was found practicing allopathic system of medicine at Savitri Clinic.
29 In the absence of any evidence on the aspect that accused had assumed himself to be a medical practitioner (practicing allopathic medicine) without the requisite qualifications, he cannot be convicted for offence u/s 27 DMC Act as charged FIR No.401/04 State vs. Shanker Prasad Page 10 of 11 against him. In my opinion the evidence as brought on record is highly insufficient for giving a finding of guilt against the accused.
30 Considering the above mentioned reasons, I have no hesitation in holding that the prosecution has miserably failed to prove the offences charged against the accused beyond any reasonable doubt. The accused Shanker Prasad is accordingly acquitted for offences U/s 27 DMC ACt as charged against him giving him the benefit of doubt.
Digitally signed by SHIVALI SHARMA ANNOUNCED IN THE OPEN COURT SHIVALI Location: East District ON 16.11.2018 Karkardooma Courts SHARMA Delhi Date: 2018.11.16 16:22:59 +0530 (SHIVALI SHARMA) CMM (EAST)/KKD/16.11.2018
Certified that this judgment contains 11 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM (EAST)/KKD/16.11.2018 FIR No.401/04 State vs. Shanker Prasad Page 11 of 11