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3. The facts leading to filing of the present application are as under:

The applicant who has been practicing in the field of Acupuncture arranged camps during the period 5-3-2003 to 15-3-2003 at Buldhana and large number of patients attended the said camp. The applicant charged Rs. 20/- per person. According to the prosecution, the act of practicing in Acupuncture is covered by Section 2(2) of the Maharashtra Medical Practitioners Act, 1961 (hereinafter referred to as "the Act"). It is further the case of the prosecution that the applicant was affixing the title "Dr." before her name on her letterheads and she had also given advertisement in newspaper styling herself as "Dr." and was running Acupuncture Centre at Akola, P.S.I. Buldhana lodged F.I.R. against the applicant at Police Station Buldhana which was registered under Cr. No. 3046/2003. After completing the investigation, the charge-sheet was filed against the applicant for offences under Sections 36 and 37 of the Act. During the investigation, this Court by order dated 2nd May 2003 had granted anticipatory bail to the applicant.

4. In Criminal Case No. 213/2003 before the Chief Judicial Magistrate the applicant contended that Sections 36 and 37 of the Act were not attracted in the present case and further that the practice of acupuncture is not covered by Section 2(2) of the Act. Learned Chief Judicial Magistrate by order dated 26-4-2005 negatived the contentions of the applicant. The Revisional Court concurred with the findings given by learned Magistrate and held that prima facie offences under Section 33(2) read with Section 36(2) of the Act have been made out against the applicant. The applicant has invoked Section 482 of the Code against both judgments and orders.

5. Mr. Dhumale, learned Counsel for the applicant submitted that no prima facie case has been made out against the applicant for offences punishable under Sections 33(2), 36 and 37 of the Act. He further submitted that practice of acupuncture is not covered by Section 2(2) of the Act but on the contrary it is covered by Clause (iii) of Proviso to Section 2(2) of the Act. Mr. Dhumale submitted that practice of acupuncture does not amount to practice of medicine and as such there is no question of the applicant registering her name in the register maintained under the Act. He, therefore, urged that Section 33(2) of the Act is not attracted in the present case as against the applicant. He further submitted that Section 36 of the Act is also not attracted inasmuch as merely affixing title "Dr." would not attract Section 36 of the Act. In support of this submission, Mr. Dhumale relied upon the judgment of this Court in State of Maharashtra v. Paulin P. Picardo 1990 Mh LJ 693 : 1991 Cri LJ 239. He then urged that Section 37 of the Act is not a penal provision and as such the charge-sheet could not have been filed under Section 37 of the Act. Mr. Dhumale further submitted that the applicant is entitled to practice in acupuncture since the applicant holds valid registration issued by Indian Academy of Acupuncture (Science). It was further submitted that the Ministry of Health & Family Welfare (Central) vide order dated 25th November, 2003 has recognized acupuncture as a therapy and practice of acupuncture by registered practitioners or appropriately trained personnel has been allowed. Mr. Dhumale also placed reliance upon certain passages from the book written by Anton Jayasurya & Lasath Wijesinghe as well as an article written by Dr. Swati P. Lohiya Administrator, Indian Academy of Acupuncture Science, Aurangabad, India on Legal Status of Acupuncture in India and Role of Indian Academy of Acupuncture Science, published in a booklet published on the occasion of 5th International Congress of Medical & Cosmetic Acupuncture- Acupressure, 2004, Aurangabad (India). Mr. Dhumale also placed reliance upon passages in book titled "Clinical Acupuncture" authored by Anton Jaya-surya. Mr. Dhumale, therefore, submitted that prosecution against the applicant under the provisions of the Act is not maintainable and, therefore, the proceedings against the applicant in Regular Criminal Case No. 212/2003 pending before the Chief Judicial Magistrate, Buldhana be quashed.

A careful reading of Section 2(2) of the Act makes it clear that a person who holds himself out as being able being able to diagnose, treat, operate or prescribe medicine or other remedy or to give medicine for any ailment, disease etc. shall be deemed to be practiced any system of medicine. In terms of Clause (iii) of Proviso to Section 2(2) of the Act certain therapies have been excluded. In my opinion, the practice of acupuncture is squarely covered by Clause 2(2) of the Act and it is not covered by Clause (iii) of the proviso as contended by Mr. Dhumale. In my opinion, a person practicing acupuncture shall be deemed to be practicing in medicine. Therefore, prima facie, Section 33(2) of the Act is clearly attracted in the present case. Insofar as the opinion expressed by authors Anton Jayasurya and Lasath Wijesinghe are concerned, I am unable to place reliance upon the same. Under Section 45 of the Evidence Act, the Court is entitled to form an opinion based upon the opinion of persons specially skilled in any field or the persons who are experts in the field. In order to attract Section 45 of the Evidence Act, the Court must be first satisfied that the persons whose opinions are relied upon are experts in the said fields. The applicant has not placed any material before this Court to establish that authors whose articles/opinions have been relied upon are experts in the fields. I am, therefore, unable to place any reliance upon the said articles/opinions. Insofar as the order dated 25th November, 2005 issued by the Joint Secretary, Ministry of Health & Family Welfare, Government of India is concerned, the same does not in clear terms say that the practice of acupuncture is not covered under Section 2(2) of the Act. Therefore, the said order does not advance the case of the applicant in view of the clear provisions of the Act.