Kerala High Court
Dr.Padmakumar vs State Of Kerala on 9 March, 2020
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941
Crl.Rev.Pet.No.125 OF 2020
(AGAINST THE ORDER DATED 05-12-2019 IN CRL.M.P.NO.786 OF 2016 IN CC
NO.20/2013 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
ARISING OUT OF CRIME NO VC 5/09/ERK OF VIGILANCE AND ANTI
CORRUPTION BUREAU, EASTERN RANGE, KOTTAYAM)
REVISION PETITIONER/PETITIONER/ACCUSED:
DR.PADMAKUMAR
AGED 54 YEARS
S/O.CHELLAPPAN, (FORMERLY LECTURER, DEPARTMENT OF
ORTHOPAEDICS, MEDICAL COLLEGE HOSPITAL, KOTTAYAM)
NANDANAM HOUSE, GANDHINAGAR POST, KOTTAYAM
DISTRICT, PIN- 686008.
BY ADV. SRI.P.K.RAVI SANKAR
RESPONDENT/SRRESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN- 682031.
SPL.PP SRI.A RAJESH
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 09.03.2020, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.Rev.Pet.No.125 OF 2020
2
ORDER
The petitioner herein is the sole accused in CC.No.20/2013 on the file of the Enquiry Commissioner and Special Judge, Kottayam for offences punishable under Sections 7, 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988.
2. The allegation of the prosecution is that the petitioner being a public servant employed as Lecturer (Ortho), Medical College Hospital, Kottayam, who was not authorised to treat or operate a patient other than those admitted in Medical College Hospital as per the service conditions, voluntarily treated CW1 and performed operation on him on 30.06.2006 at a private hospital and he had obtained an amount of Rs.12,000/- (Rupees twelve thousand only) from CW1 on 28.06.2006. Alleging that he had committed criminal misconduct by misusing his official position as a public servant during 2006 and obtained undue pecuniary Crl.Rev.Pet.No.125 OF 2020 3 advantage, prosecution was lodged. After investigation, final report was laid. The petitioner thereafter filed an application as Crl.M.P.No.786/2016 under Section 239 of Cr.P.C, seeking discharge. The learned Special Judge by the impugned order dismissed the application, which is under challenge in the present proceedings.
3. Essential facts are not in dispute. It seems that during the relevant time, guidelines were issued by the Government restricting private practice of Government doctors, but permitting private practice after duty hours. They were also not permitted to do private practice in private hospitals. The crux of the prosecution allegation is that the petitioner treated a patient for back pain and performed surgery on him, in a private hospital. Materials gathered by the prosecution show that during the relevant time the petitioner was employed as a Lecturer (Ortho) in the Government Medical College Hospital, Kottayam and also that during the relevant day, he had performed his surgery at the private hospital. The statement of the persons, who Crl.Rev.Pet.No.125 OF 2020 4 were associated with the surgery have also been recorded by the investigating agency.
4. The crucial question that arises before this court is whether performing surgery while being in Government service and receiving remuneration for that will amount to misconduct and a corrupt practice as provided under the Prevention of Corruption Act 1988. The contention of the learned counsel for the petitioner is that even assuming that the petitioner had performed the surgery, at the most, that will only be a misconduct warranting action if any, under the service rules and no criminal prosecution would lie and that the above act will not amount to corrupt practice or misconduct as contemplated under the provisions of the Prevention of Corruption Act.
5. To substantiate the above contentions, the learned counsel for the petitioner relied on the decision in Kanwarjit Singh Kakkar and Another Vs. State of Punjab and Another 2011 KHC 4417. That was a Crl.Rev.Pet.No.125 OF 2020 5 case wherein two doctors serving as Government doctors were prosecuted for receiving charges from patients for checking their blood pressure and also for giving them medicine. The court considered whether the conduct will amount to corrupt practice as defined under Section 7 of the Prevention of Corruption Act. It was held by the Supreme Court that corruption was acceptance or demand of illegal gratification for performing an official act. It was held that it would be preposterous to hold that if a doctor charges fee for extending medical help and is doing that by way of his professional duty, the same would amount to illegal gratification as that would be even against plain common sense. However, the situation would be different, if it was alleged that while the doctor doing private practice as a Government doctor indulged in malpractice in any manner, as for instance, took money by way of illegal gratification for admitting the patients in the Government hospital or any other offence of criminal nature like prescribing unnecessary surgery for Crl.Rev.Pet.No.125 OF 2020 6 the purpose of extracting money by way of professional fee and a host of other circumstances, the same obviously would be a clear case to be registered under the Indian Penal Code as also under the Prevention of Corruption Act. The Hon'ble Supreme Court concluded that the conduct of the appellants therein was that they indulged in private practice while holding the office of Government doctor and hence public servant at the most, could be proceeded with for departmental proceeding under the Service Rules, but it would not constitute an offence either under the Prevention of Corruption Act or under the Indian Penal Code.
6. In Sathyan Naravoor Vs. Union of India and Others 2017 KHC 162, one IPS officer who was granted leave for writing of two research articles as a part of his Doctoral programme study. During that period, he allegedly worked as the Director of the private management college and received remuneration. VACB which conducted discreet enquiry alleged that he had committed criminal misconduct Crl.Rev.Pet.No.125 OF 2020 7 punishable under Sections 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act. In the proceeding that came up before the Division Bench, it was held that the action of the above officer in accepting employment in the institution without obtaining previous sanction of the Government and receiving remuneration granted by the institution will not amount to criminal misconduct as contemplated under the provisions under Section 13 (1) (d) of the prevention of Corruption Act. In the absence of the intention, the corrupt or illegal act or misconduct alleged against him will not amount to criminal misconduct falling under Section 13 (1) (d) of the Prevention of Corruption Act.
7. Evidently, the facts of the present case fall within the ambit of the law laid down by the Supreme Court in Kanwarjit Singh Kakkar's case (supra). This was followed in Sathyan Naravoor's case (supra) also. Having considered this, I feel that an offence under Section 13 (2) and Section 13 (1) (d) of Crl.Rev.Pet.No.125 OF 2020 8 the Prevention of Corruption Act, cannot be attributed to the petitioner herein in the facts and circumstances of the case. Consequently, the finding of the court below that the petitioner is not entitled for discharge does not appear to be correct. Having considered this, I am inclined to set aside the impugned order and the petitioner stands discharged. Accordingly, Crl.R.P stands allowed and the impugned order in Crl.M.P.No.786/2016 stands set aside.
Sd/-
SUNIL THOMAS, JUDGE
R.AV
//True Copy// PS to Judge