Madhya Pradesh High Court
Rishikesh Saraf vs The State Of Madhya Pradesh on 7 October, 2020
-:1:-
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.7972/2020
(Rishikesh Saraf Vs The State Of Madhya Pradesh and others)
Jabalpur, Dated 07/10/2020
Shri Paritosh Gupta, learned counsel for the petitioner.
Shri Swapnil Ganguli, learned Dy. A.G. for the respondent Nos.1
to 5/State.
Shri R.K. Sanghi, learned counsel for the respondent No.6.
This P.I.L. (Public Interest Litigation) has been filed to direct the respondents No.1 to 6 to take action against those persons who are doing the practice of Allopathy and running their clinics but not possessing any recognised qualification as per law under the concerning system of medicine i.e. Allopathy.
During the hearing of this petition vide order dated 26.06.2020, it was directed that if any other matter pertaining to quacks (Jholachhap Doctors) is filed, the same shall be listed before Division Bench-I and vide order dated 06.07.2020, this Court directed that the anticipatory bail applications filed by the Quacks (Jholachhap Doctors) and pending before trial Courts shall be forwarded to this Court. It was also directed that the State counsel shall point out regarding the pendency of the Public Interest Litigation to the trial Court.
These orders have resulted in transfer of all the anticipatory bail applications filed by the persons (quacks) against whom police registered crime under the provision of M.P. Ayurvigyan Parishad -:2:- Adhiniyam, 1987 (for short "Adhiniyam, 1987") and other relating Acts including offences punishable under the Indian Penal Code by Sessions Judges of various districts of M.P. for disposal.
Objections are being raised as regard to transfer of bail applications by virtue of above orders. Reference has been made to provisions contained under Section 438 of Cr.P.C. It is contended that Section 438 of Cr.P.C. provides for concurrent jurisdiction to entertain anticipatory bail application to the Sessions Court and the High Court. It is urged that, it is the person concerned who has a right to approach in appropriate forum which cannot be taken away even by judicial order, more particularly, in the matter like the present one which is a Public Interest Litigation for a direction to the State to strictly regulate the stipulations contained in the Adhiniyam, 1987 and other statutory provisions to prevent the practice of Quacks in the State of Madhya Pradesh.
Though an attempt is made on behalf of the State of Madhya Pradesh that since the practice of Quack in the State of M.P. is rampant and the police is taking action against such practitioner, it is in the larger interest that the applications filed for anticipatory bail before various Sessions Judges be heard at one place.
We take note of the submission on behalf of the State and rejected outright.
Section 438 of Cr.P.C. mandates that "Where any person has reason to believe that he may be arrested on accusation of having -:3:- committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail."
Thus, in a given case, where an incumbent moves the Sessions Court, he cannot be forced to appear before High Court merely because Public Interest Ligation is pending and an order has been passed to transfer the application before High Court. Even before the High Court, jurisdiction as per the High Court Rules lay with learned Single Judge and not with the Division Bench.
In view whereof, we recall the order dated 26.06.2020 and order dated 06.07.2020 to the extent the direction that all anticipatory bail applications filed before respective District and Sessions Judges be transferred and linked with present writ petition.
In view whereof, the bail applications which are being sent by District and Sessions Judges to the Registry be sent back to the concerned District and Sessions Judge with the direction that the same be decided in accordance with law.
Henceforth, the respective cases in respect of quack matter be listed in accordance with listing policy of the High Court.
The sealed envelopes produced by the Advocate General office be returned to the Advocate General under due acknowledgment.
-:4:-Let a copy of this order be sent to respective District and Sessions Judges.
List the matter in the week commencing 01.12.2020.
(Sanjay Yadav) (Rajeev Kumar Dubey)
Acting Chief Justice Judge
as/-
Digitally signed by
ANURAG SONI
Date: 2020.10.09
10:46:35 +05'30'