Kanwarjit Singh
Kakkar Vs. State of Punjab & ANR.
Dr. Rajinder Singh
Chawla Vs. State of Punjab & ANR.
J U D G M E N T
GYAN SUDHA MISRA, J.
1.
Leave
granted.
2.
These
appeals by special leave had been filed against the order dated 2.4.2009 passed
by the High Court of Punjab and Haryana at Chandigarh in two Criminal
Miscellaneous Petitions Nos. M-15695/2007 and 23037-M of 2007 for quashing FIR No.13
dated 9.4.2003 which was registered for offences punishable under Section 13(1)(d)
read with Section 13(2) of the Prevention of Corruption Act, 1988 and under Section
168 of the Indian Penal Code, at Police Station, Vigilance Bureau, Ludhiana but
were dismissed as the learned single Judge declined to quash the proceedings
against the appellants.
3.
Relevant
facts of the case under which the two cases were registered against the appellants
disclose that the appellants are Medical Officers working with the State
Government of Punjab against whom first information report was registered on
the statement of informant/Raman Kumar alleging that he knew the appellants Dr.
Rajinder Singh Chawla who was posted as Government Doctor at Dhanasu and Dr. Kanwarjit
Singh Kakkar who also was serving as Government Doctor in Koom Kalan in District
Ludhiana.
It was alleged that
both the doctors were doing private practice in the evening at Metro Road, Jamalpur
and charged Rs.100/- in cash per patient as prescription fee. While Dr. Rajinder
Singh Chawla checked the blood pressure of the patients Dr. Kanwarjit Singh issued
prescription slips and medicines to the patients after checking them properly and
charged Rs.100/- from each patient. The complainant Raman Kumar got medicines
from the two doctors regarding his ailment and the doctor had charged Rs.100/- as
professional fee from him.
The informant further
stated in his FIR that as per the government instructions, the government doctors
are not supposed to charge any fee from the patients for checking them as the same
was contrary to the government instructions. In view of this allegation, a raid
was conducted at the premises of both these doctors and it was alleged that
they could be nabbed doing private practice as they were trapped receiving Rs.100/-
as consultation charges from the complainant. On the basis of this, the FIR was
registered against the appellants under Section 13(1)(d) read with Section 13(2)
of the Prevention of Corruption Act and under Section 168, IPC which has
registered at Police Station Vigilance Bureau, Ludhiana.
4.
As
already stated, the appellants felt aggrieved with the case registered against them
and hence filed two Criminal Miscellaneous Petitions for quashing FIR No.13 1dated
April 9, 2003 before the High Court of Punjab and Haryana at Chandigarh wherein
counsel for the appellants contended that no offence is made out from the
allegations in the FIR even as it stands. Substantiating the arguments, it was
submitted that neither any medical instrument was recovered nor any apparatus or
blood pressure checking machine or even thermometer was recovered from the
residence of the appellants. It was explained that the complainant had come to
the house of Dr. Kanwarjit Singh Kakkar which was under renovation and requested
for treatment. It was added that on humanitarian grounds, the appellant just scribbled
down the prescription on a plain paper which does not even bear the signature of
the appellant.
5.
It
was also contended by learned counsel for the appellants that there is no law prohibiting
government doctor from doing any act on humanitarian ground and the appellants could
be alleged to have indulged in private practice only if they have deviated from
the rules laid down by the State Government in this regard. In the alternative,
it was contended that even if there is a deviation from these rules prohibiting
private practice by government doctors contrary to the government instructions,
it could warrant initiation of departmental proceeding and the punishment under
the Punjab Civil Services (Punishment and Appeal) Rules and not under IPC much
less under the Prevention of Corruption Act.
6.
The
learned single Judge, however, was pleased to dismiss the Criminal
Miscellaneous Applications refusing to quash the FIR relying on Rule 15 of the Punjab
Civil Medical (State Service Class I) Rules, 1972. As per Rule 15 of the said Rules,
the Government may by general or special order permit any member of the Service
to engage in private service on such terms and conditions and subject to such
restrictions and limitations as may be specified in the order provided that such
practice does not in any way interfere with the discharge of his or their official
duties. Rule 15 of the aforesaid Rules states as follows: "15. Private Practice:
(1) The Government may, by general or special order, permit any member of the Service
to engage in private practice on such terms and conditions and subject to such restrictions
and limitations as may be specified in the order, provided that such practice does
not in any way interfere with the discharge of his or their official duties. (2)
Nothing contained herein shall be construed to limit or abridge the power of
the Government at any time to withdraw such permission or to modify the terms
on which it is granted without assigning any cause and without payment of
compensation."
7.
The
relevant question which requires determination in these appeals is whether a government
doctor alleged to be doing practice can be booked within the ambit and purview of
the Prevention of Corruption Act or under Indian Penal Code, or the same would amount
to misconduct under the Punjab Civil Medical(State Service Class I) Rules, 1972
under Rule 15 which has been extracted above.
8.
Learned
counsel for the appellants submitted that the FIR was fit to be quashed as the case
against the appellants who admittedly are government doctors could not have been
registered under IPC or the Prevention of Corruption Act as Section 7 of the
Prevention of Corruption Act explains `corruption' as acceptance or `demand' illegal
gratification for doing any official act'. It was submitted that the demand/receipt
of `fee' while doing private practice is not an illegal gratification for official
duties. It was further submitted that even Section 13(1)(d) of the Prevention
of Corruption Act does not apply since the main ingredients of this Section
are:(a) the accused must be a public servant at the time of the offence; (b) he
must have used corrupt or illegal means and obtain for himself or for any other
person any valuable or pecuniary advantage; or (c) he must have abused his
position as a public servant and have obtained for himself and for any other person
any valuable thing or pecuniary advantage; or(d) while holding such office he
must have obtained for any other person any valuable thing or pecuniary advantage
without any motive.
9.
Learned
counsel for the respondents however repelled the arguments advanced in support
of the plea of the appellants and it was contended that the provisions of
Prevention of Corruption Act clearly apply as the government doctors in the State
of Punjab have been specifically prohibited to carry private practice under the
departmental rules and as such the act of the appellants were illegal.
10.
By
way of a rejoinder, it was again submitted by the counsel for the appellants that
it is the `departmental rules' which bar private practice by a government
doctor, hence action if any, is liable to be initiated/taken under the
departmental rules which in the present case are the Punjab Civil Services
(Punishment and Appeal) Rules. Rule 15 of the Punjab Civil Medical (State
Service Class I) Rules, 1972 states that a government doctor may engage in
practice with prior permission from the government. It was still further submitted
that the FIR against the appellant has also been registered under Section 168 of
the Indian Penal Code which states as follows: "
Public servant unlawfully
engaging in trade.--Whoever, being a public servant and being legally bound as such
public servant not to engage in trade, engages in trade, shall be punished with
simple imprisonment for a term which may extend to one year, or with fine, or
with both."It was submitted that this Section makes it amply clear that `private
practice' cannot be termed as `trade', as accepting of `fee', does not involve
profit making which is an essential ingredient of the term `trade' as held in
State 1of Gujarat vs. Maheshkumar Dheerajlal Thakkar1. The counsel further took
assistance from the Punjab Government Vigilance Department ( Vigilance -3 Branch)
which vide Memo No. 53/168/02-54/20094dated 23.12.2004 (T) instructed the Chief
Director, Vigilance Bureau, Punjab, Chandigarh on 19.1.2005, that the cases
pending against the government teachers for holding tuition classes should be withdrawn
as these cases do not come within the purview of the Prevention of Corruption Act
as fees demanded/accepted by a teacher in view of teaching private tuition classes
can neither be termed as a corruption nor can it be said to be a demand for
remuneration for some official act. It was submitted that this principle needs
to be applied on all professionals on the basis of the principle of equity.
The counsel also submitted
on the merit of the case given out in the FIR, by urging that the appellants
although wrote down the prescription on a plain paper for the complainant who had
approached him for medical assistance at about 8.30 p.m. on 9.4.2003, he
obliged him merely on humanitarian grounds and the raid which was conducted on the
appellant's premises, no 1 AIR 1980 SC 1167 1recovery of medical instruments or
medical apparatus was made. It was, therefore, contended that the impugned
order of the High Court refusing to quash the FIR against the appellants is
liable to be set aside and the FIR against the appellants should be quashed as the
FIR alleging private practice by the government doctors/appellants herein is not
criminal in nature but at the most would amount to a deviation from the departmental
rules and hence at the most, it could be dealt with under the Punjab Civil
Services (Punishment and Appeal) Rules only.
11.
On
a critical analysis of the arguments advanced in the light of the definition of
`corruption' defined under the Prevention of Corruption Act in its Preamble and
under Section 7 of the Act, it clearly emerges that `corruption' is acceptance or
demand of illegal gratification for doing an official act. We find no difficulty
in accepting the submission and endorsing the view that the demand/receipt of
fee while doing private practice by itself cannot be held to be an illegal gratification
as the same obviously is the amount charged towards professional remuneration. It
would be preposterous in our view to 1hold 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 the plain
common sense.
If however, for the
sake of assumption, it were alleged that the doctor while doing private practice
as 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 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 IPC as also under the Prevention of Corruption Act which is not the case
in the instant matter. The FIR sought to be quashed, merely alleges that the
appellants were indulging in private practice while holding the post of government
doctor which restrained private practice, and charged professional fee after
examining the patients.
12.
We
however, came across a case of Raj Rajendra Singh Seth alias R.R.S. Seth vs. State
of Jharkhand And Anr.2, wherein a doctor who had demanded Rs.500/- for giving
proper medical treatment to the complainant's father resulted in conviction of the
doctor as it was held in the circumstances of the said case that all the requisites
for proving demand and acceptance of bribe were clearly established and the appellant
therein was held to have been rightly convicted. However, the prosecution
version in the said case disclosed that a written complaint was made to SP., CBI,
Dhanbad that on 1.9.1985 one Raju Hadi, a Safai Mazdoor of the Pathological Laboratory
Area -9, BCCL, Dhanbad, alleged therein that he had visited Chamodih Dispensary
in connection with the treatment of his father who was examined by Dr. L.B. Sah
who referred him to Central Hospital, Dhanbad.
The complainant's
father was admitted in the Central Hospital and the complainant visited his
ailing father who complained of lack of proper treatment and he requested him to
meet the doctor concerned. The complainant met Dr. R.R.S. Seth who was treating
the complainant's father. It was alleged by the complainant therein that Dr.
R.R.S. Seth demanded a sum of Rs. 500/- from the complainant for giving proper
2 (2008) 11 SCC 681 1medical treatment to his father and also insisted that the
amount be paid to the doctor on 1.9.1985. The doctor also told the complainant Raju
Hadi that in case he was not available in the hospital, he should pay the
amount to his ward boy Nag Narain who would pass the amount to him. Since the complainant
Raju Hadi was not willing to make the payment of bribe amount to the doctor and
ward boy, he lodged a complaint to the SP, CBI, Dhanbad for taking necessary
action.
13.
On
the basis of this complaint, which was finally tried and resulted into conviction,
came up to this Court (Supreme Court) challenging the conviction. This
conviction was upheld by this Court as it was held therein that there is no
case of the accused that the said amount was received by him as the amount which
he was legally entitled to receive or collect from the complainant. It was, therefore,
held that when the amount is found to have been passed to the public servant, the
burden is on public servant to establish that it was not by way of illegal
gratification. This Court held that the said burden was not discharged by the accused
and hence it was held that all the requisites 1for proving the demand and acceptance
of bribe had been established and hence interference with the conviction and
sentence was refused. The learned Judges in this matter had placed reliance on the
case of B. Noha vs. State of Kerala3, wherein this Court took notice of the
observations made in the said case at paras 10 and 11 wherein it was observed
as follows: ".............When it is proved that there was voluntary and conscious
acceptance of the money, there is no further burden cast on the prosecution to prove
by direct evidence, the demand or motive. It has only to be deduced from the facts
and circumstances obtained in the particular case."
14.
The
learned Judges also took notice of the observations made by this Court in Madhukar
Bhaskarrao Joshi vs. State of Maharashtra,4 (2000) 8 SCC 571 at 577, para 12 wherein
it was observed that "The premise to be established on the facts for drawing
the presumption is that there was payment or acceptance of gratification. Once the
said premise is established, the inference to be drawn is that the said gratification
was accepted "as motive or reward" for doing or forbearing to do any official
act. So the word "gratification" need not be stretched to mean reward
because reward is the outcome of the presumption which the court has to draw on
the factual premise that there was payment of gratification. .............................................
.....
If acceptance of any valuable
thing can help to draw the presumption that it was accepted as motive or reward
for doing or forbearing to do official act, the word "gratification" must
be treated in the context to mean any payment for giving satisfaction to the public
servant who received it." This decision was followed by this Court in M. Narsinga
Rao vs. State of A.P5..Thus in all the cases referred to hereinabove, the amount
received was held to be by way of gratification as there could be no escape from
the conclusion that it would amount to corruption within the meaning of Prevention
of Corruption Act as also the offence under the IPC.
15.
But
the most important and vital check before a public servant can be booked under the
Prevention of Corruption Act, the ingredients of the offence will have to be deduced
from the facts and circumstances obtained in 5 (2001) 1 SCC 691 the particular
case. Judging the case of the appellants on this anvil, it is not difficult to notice
that in the case at hand, the amount that is alleged to have been accepted even
as per the allegation of the complainant/informant was not by way of
gratification for doing any favour to the accused, but admittedly by way of professional
fee for examining and treating the patients. However, no presumption can be
drawn that it was accepted as motive or reward for doing or forbearing any
official act so as to treat the receipt of professional fee as gratification much
less illegal gratification.
The professional fee even
as per the case of the complainant/informant was that this act on the part of the
accused appellants was, contrary to the government circular and the circular
itself had a rider in it which stated that the government doctor could do private
practice also, provided he sought permission from the government in this regard.
Thus the conduct of the appellants who are alleged to have 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 in so far as making out of an offence either under the
Prevention of Corruption Act or under the IPC, would be difficult to sustain as
we have already observed that examination of patients by doctor and thereby charging
professional fee, by itself,
would not be an offence
but as per the complaint, since the same was contrary to the government circular
which instructed that private practice may be conducted by the government
doctors in the State of Punjab provided permission was sought from the
Government in this regard, the appellants were fit to be prosecuted. Thus, the appellants
even as per the FIR as it stands, can be held to have violated only the government
instructions which itself has not termed private practice as `corruption' under
the Prevention of Corruption Act merely on account of charging fee as the same
in any event was a professional fee which could not have been charged since the
same was contrary to the government instructions.
Thus, if a particular
professional discharges the duty of a doctor, that by itself is not an offence but
becomes an offence by virtue of the fact that it contravenes a bar imposed by a
circular or instruction of the government. In 1that event, the said act clearly
would fall within the ambit of misconduct to be dealt with under the Service
Rules but would not constitute criminal offence under the Prevention of
Corruption Act.
16.
However,
the question still remains whether the indulgence in private practice would
amount to indulgence in `trade' while holding the post of a government doctor
and hence an offence under Section 168 of the IPC, so as to hold that it
constitutes a criminal offence in which case that FIR could be held to have
made out a prima facie case against the appellants under Section 168 of the IPC
on the ground that the appellants who are public servants unlawfully engaged in
trade. In our view, offence under Section 168 of the IPC cannot be held to have
been made out against the appellants even under this Section as the treatment of
patients by a doctor cannot by itself be held to be engagement in a trade as
the doctors' duty to treat patients is in the discharge of his professional duty
which cannot be held to be a `trade' so as to make out or constitute an offence
under Section 168 of the IPC.
As already stated,
there may be cases of doctors indulging in cases of 1medical negligence, demand
or accept amount in order to incur favour on the patients which would amount to
illegal gratification and hence `corruption', and in such cases offence can most
certainly be held to have been made out under the Prevention of Corruption Act also.
Cases of unlawful engagement in trade by public servants can also be held to be
made out under Section 168 of the IPC if the facts of a particular case
indicate that besides professional discharge of duty by the doctor, he is indulging
in trading activities of innumerable nature which is not expected of a medical
professional as was the fact in the case referred to herein before. But if the
medical professional has acted in a manner which is contrary only to the government
instructions dehors any criminal activity or criminal negligence, the same
would not constitute an offence either under the IPC or a case of corruption
under the Prevention of Corruption Act. In our considered view, the allegation
even as per the FIR as it stands in the instant case, do not 1constitute an offence
either under the Prevention of Corruption Act or under Section 168 of the IPC.
17.
For
the reasons discussed hereinbefore, we are pleased to set aside the impugned orders
passed by the High Court and quash the FIR No.13 dated 9.4.2003 registered
against the appellants as we hold that no prima facie case either under Section
168 of the IPC or Section 13 (1)(d) read with 13(2) of the Prevention of
Corruption Act is made out under the prevailing facts and circumstances of the
case and hence proceeding in the FIR registered against the appellants would ultimately
result into abuse of the process of the Court as also huge wastage of time and
energy of the Court. Hence, the respondent - State, although may be justified
if it proceeds under the Punjab Civil Services (Punishment and Appeal) Rules against
the appellants initiating action for misconduct, FIR registered against them under
IPC or Prevention of Corruption Act is not fit to be sustained. Consequently, both
the appeals are allowed.
..................................J
(MARKANDEY KATJU)
..................................J
(GYAN SUDHA MISRA)
New
Delhi,
April
28, 2011
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