Dr. Sandeep vs State Of M.P

This Criminal Revision under Section 397/401 of Cr.P.C. has been filed against the order dated 7/6/2017 passed by the JMFC, Jobat, District Alirajpur

in Criminal Case No.506/2017, by which the charge has been framed under Section 24 of the Ayurvigyan Parishad Adhiniyam, 1987 (in short “the

Adhiniyam of 1987â€​) and Section 420 of IPC.

Challenging the impugned order passed by the trial court, it is submitted by the counsel for the applicant that even if the entire prosecution allegations

are accepted, then no offence under Section 24 of the Adhiniyam, 1987 is made out. It is further submitted that no offence under Section 420 of IPC

would also be made out.

Per contra, it is submitted by the counsel for the State that according to the prosecution case, the complaint was made against the applicant that he is

illegally running his clinic and is practicing on allopathy, although he is not holding the requisite degree and he is holding the degree of BHMS.

Accordingly, a search was carried out in the clinic of applicant where apart from homeopathic medicines, 16 cartoons of allopathic medicines were

also seized. The police after completing the investigation, filed the charge-sheet. It is further submitted that the applicant is not holding MBBS degree

and in utter violation of Section 15 (2) of Medical Council Act, he was practicing on allopathy side and, therefore, the trial court did not commit any

mistake in framing charge under Section 24 of the Adhiniyam, 1987 and under Section 420 of IPC.

Heard learned counsel for the parties.

Before considering the facts of the case, it would be necessary to consider the scope of interference at the stage of framing of charges.

The Supreme Court in the case of Ajay Kumar Parmar vs. State of Rajasthan reported in AIR 2013 SC 633 has held as under:-

“14. The Magistrate, in exercise of its power under Section 190 Cr.P.C., can refuse to take cognizance if the material on record warrants so. The

Magistrate must, in such a case, be satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161 and 164 Cr.P.C.,

if any, do not make out any offence. At this stage, the Magistrate performs a judicial function. However, he cannot appreciate the evidence on record

and reach a conclusion as to which evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is impermissible. The

Magistrate is not competent to weigh the evidence and the balance of probability in the case.â€​

The Supreme Court in the case of Soma Chakravarty vs. State (Th. CBI) reported in 2007 AIR SCW 3683 has held as under:-

“20. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the Court

could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be

proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material

on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a

charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused

was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.â€​

The Supreme Court in the case of P. Vijayan vs. State of Kerala and Anr. reported in 2010 CRI. L.J. 1427 has held as under:-

“10. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be

empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not

sufficient ground for proceeding against the accused†clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the

prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the

prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of

evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the

evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground

would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that

there are suspicious circumstances against the accused so as to frame a charge against him.â€​

The Supreme Court in the case of State of Bihar vs. Ramesh Singh reported in AIR 1977 SC 2018 has held as under:-

“... ...Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the

conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the

accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The

presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in

France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the

Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully

accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the

offence, then there will be no sufficient ground for proceeding with the trial. …. â€​

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the

satisfaction of the Trial Judge in order to frame a charge against the accused.â€​

The Supreme Court in the case of Union of India vs. Prafulla Kumar Samal reported in AIR 1979 SC 366 has held as under:-

“(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and

weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be

fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal

application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise

to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot

act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence

and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge

should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.â€​

The Supreme Court in the case of Niranjan Singh vs. K.S. Punjabi vs. Jitendra Bhimraj Bijjaya reported in AIR 1990 SC 1869 has held as under:-

“Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the

evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists

sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents

constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to

marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to

frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State

of Bihar v. Ramesh Singh(AIR 1977 SC 2018)this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-

evidence which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to

say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of

the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the

accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal (AIR

1979 SC 366) this Court after considering the scope of Section 227 observed that the words ‘no sufficient ground for proceeding against the

accused’ clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial

mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution.

In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and

probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting

the said offence.â€​

The Supreme Court in the case of Amit Kapoor vs. Ramesh Chander & Anr. reported in (2012) 9 SCC 460 has held as under:-

“17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under

Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case†and documents submitted

therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for

presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court

would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a

presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence

is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of

Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to

say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an

approach which is impermissible in terms of Section 228 of the Code.

x x x x x x x

At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an

offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with

the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this

Court in State of Bihar v. Ramesh Singh (1977) 4 SCC 39: (SCC pp. 41-42, para 4)

“4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused

and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the

record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge

has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ‘the Judge considers that there is no sufficient ground for

proceeding against the accused, he shall discharge the accused and record his reasons for so doing’, as enjoined by Section 227. If, on the other

hand, ‘the Judge is of opinion that there is ground for presuming that the accused has committed an offence whichâ€" … (b) is exclusively triable

by the court, he shall frame in writing a charge against the accused’, as provided in Section 228. Reading the two provisions together in

juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence

which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused.

It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would

be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding

regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the

Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his

conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the

conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the

accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The

presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in

France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the

court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully

accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence,

then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one

conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as

to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end

in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation

ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.â€​

20 to 26 x x x x x x x

Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional

distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is

not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this

Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge

either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is

to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the

Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted

therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever

reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in

conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might

be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in

exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution

and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the

offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a

“civil wrong†with no “element of criminality†and does not satisfy the basic ingredients of a criminal offence, the court may be justified in

quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that thecourts have to observe is that it cannot examine the facts, evidence and materials on record to determine

whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations

taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating

agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a

criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by

an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the

record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be

more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a

view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its

jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice

favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of

which alone, the courts exist.

(Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; Madhavrao Jiwajirao Scindia v.

Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 :

AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2

SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate

[(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; Ganesh

Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1

SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC

1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC

234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan

Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 :

AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]; M. 8 MCRC.6606/2015 Krishnan v. Vijay Singh

[(2001) 8 SCC 645 : 2002 SCC (Cri) 19]; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of

Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]).

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of

extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has

been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have

not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

x x x x x x x

In the light of the above principles, now if we examine the findings recorded by the High Court, then it is evident that what weighed with the High

Court was that firstly it was an abuse of the process of court and, secondly, it was a case of civil nature and that the facts, as stated, would not

constitute an offence under Section 306 read with Section 107 IPC. Interestingly and as is evident from the findings recorded by the High Court

reproduced supra that “this aspect of the matter will get unravelled only after a fullfledged trialâ€​, once the High Court itself was of the opinion that

clear facts and correctness of the allegations made can be examined only upon full trial, where was the need for the Court to quash the charge under

Section 306 at that stage. Framing of charge is a kind of tentative view that the trial court forms in terms of Section 228 which is subject to final

culmination of the proceedings.

We have already noticed that the legislature in its wisdom has used the expression “there is ground for presuming that the accused has

committed an offenceâ€. This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are

satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste. A Bench of this Court

in State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 referred to the meaning of the word “presume†while relying upon Black’s

Law Dictionary. It was defined to mean “to believe or accept upon probable evidenceâ€; “to take as proved until evidence to the contrary is

forthcomingâ€. In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are crossexamined by the

defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an

opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and

delivering its judgment. Merely because there was a civil transaction between the parties would not by itself alter the status of the allegations

constituting the criminal offence.â€​

It is well established principle of law that at the time of framing of charges, meticulous appreciation of evidence is not required and even a strong

suspicion is sufficient to frame the charges.

If the facts of the case in hand are considered in the light of scope of interference at this stage, then it would be clear that in the present case, the

allegations are that the applicant is holding BHMS degree, but in spite of that he was found in possession of 16 cartoons of allopathic medicines, which

he had kept in his clinic.

It is submitted by the counsel for the applicant that for taking any action against a doctor registered under the Homeopathic Parishad Adhiniyam, 1976

(in short “the Adhiniyam of 1976â€), consent of the council is necessary and in absence of such consent, the applicant cannot be prosecuted. It is

further submitted that the State Government by amending Section 24 of the Adhiniyam, 1987 has allowed the doctors, who are posted in the

Government Health Centers or Societies to practice on allopathy side also and, therefore, the applicant has not committed any offence even if he was

found to be in possession of 16 cartoons of allopathic medicines.

So far as the amendment in Section 24 of the Adhiniyam, 1987 is concerned, this Court in the case of Dr. Ashish Khare Vs. State of M.P. and

another passed in M.Cr.C. No.1736/2018 at Principal Seat Jabalpur by order dated 7/2/2018 has already considered this amendment in detail and,

therefore, the applicant does not get any assistance from the amendment in Section 24 of the Adhiniyam, 1987. This Court in the case of Dr. Ashish

(supra) has held as under:-

“The applicant has relied upon the M.P. Ayurvigyan Parishad (Sanshodhan) Adhiniyam, 2016, which reads as under :

24(ia) the persons posted in the Government Health Institutions or centers of allopathic system of medicine and possessing graduate degree in

Ayurvedic System and Unani System included in Second Schedule of the Indian Medicine Central Council Act, 1970 (No. 48 of 1970) and registered

with the Madhya Pradesh Board of Ayurvedic and Unani Systems of Medicine and Naturopathy and have undergone training specified by the

Government, from time to time, shall also be eligible to prescribe medicines under modern scientific medicine which is also known as ""Allopathy"" and

such other medical procedures to the extent of training provided under the Madhya Pradesh Ayurvedic, Unani Tatha Prakritik Chikitsa Vyavsayi

Adhiniyam, 1970 (No. 5 of 1971) and shall not be punishable under this Section for prescribing allopathic medicines.

From the plain reading of this provision, it is clear that this provision does not apply to all trained Doctors who are graduates in Ayurved. The opening

words of Section 24(ia) of the M.P. Ayurvigyan Parishad (Sanshodhan) Adhiniyam, 2016 makes it clear that it applies only to those persons who are

posted in the Government Health Institutions or centers of allopathic system of medicine. Undisputedly, the applicant is running his own private

hospital and is not posted in the Government Health Institutions or centre of allopathic system of medicine. Therefore, the applicant is not protected or

is not eligible to prescribe allopathic medicines.â€​

So far as the consent of the council is concerned, the counsel for the applicant could not bring any provision of the Act, to the notice of this Court,

which warrants the consent of the council for prosecution of the doctors registered under the Adhiniyam, 1976. In absence of any such provision, it

cannot be said that the consent under the Adhiniyam, 1976 is required for prosecution of a doctor, who without there being any degree of MBBS is

found practicing on allopathy side in utter violation of Section 15(2) of the Medical Council Act.

In reply, it is submitted by the counsel for the applicant that this Court by order dated 5/2/2009 passed in Writ Petition No.5852/2006 has held as

under:-

“After hearing learned counsel for the parties and taking into consideration that the issue raised by the petitioners, in the three writ petitions, are

such issues, which are arising for consideration before the State Governments all over the country, and are a matter of serious concern, not only for

the practitioners in various systems of medicines, but are also a matter of grave concern for the General Public and its health, it would be proper that

the matter is considered by a Committee of Experts, constituted by the State Government for that purpose. It would be appropriate that the State

Government constitutes the said Committee of Experts, comprising of not only senior persons in the Allopathic System of Medicine, but also persons

of rapute in the Ayurvedic and Unani Systems of Medicines. The controversy with regard to the eligibility/entitlement of the Ayurvedic and Uniani

Practitioners, registered in the said Systems of Medicines, to practice Allopathic System of Medicine, would be examined by the said Committee, after

taking into consideration the pleas raised by all the persons/bodies/practitioners, who are so affected. The pleas raised by the Madhya Pradesh

Ayurvedic and Unani Chikitsa Paddhati and Prakratik Chkitsa Board, Bhopal; pleas to be raised by the State Medical Council and Indian Medical

Council; and of course, on taking into consideration the provisions of various relevant enactments; and the law laid down by the Apex Court from time

to time.

Consequently, the writ petitions are disposed of with the directions to respondent No.1 to constitute a Committee of Experts, as observed above, so

that the entire controversy can be examined and a permanent solution can be found out. Needless to say that on constitution of the said Committee, a

public notice shall be issued by the said Committee, inviting suggestions/objections from all concerned, and in any case, by providing mandatory hearing

to representatives of the Ayurvedic and Unani Practitioners; Madhya Pradesh Ayurvedic, Prakratik and Unani Chikitsa Board; Indian Medical

Council; and the State Medical Council.

It is expected that the aforesaid Committee shall be constituted by the State Government, within a period of six months from the date a certified copy

of this order is presented, in consultation with Indian Medical Council/MP State Medical Council/MP Ayurvedic, Prakritik and Unani Chikitsa Board,

respondent No.3.

Needless to add that the interim protection granted by this Court vide order dated September 27, 2006, passed in Writ Petition No.5855/2006 shall

continue to operate till the matter is finally decided by the aforesaid Committee.â€​

However, the counsel for the applicant could not place any decision of the committee so constituted under the orders of the High Court. This Court by

order dated 5/2/2009 (supra) has merely directed for constitution of a committee to look into the eligibility / entitlement of the Ayurvidic and Unani

practitioners registered in the said System of Medicines to practice Allopathic System of Medicines. In absence of any decision of the committee, so

constituted in compliance of the order dated 5/2/2009 (supra), it cannot be held that the applicant was entitled to practice on allopathy side.

The counsel for the applicant has also relied upon the order dated 26/8/2013 passed in Writ Petition No.5640/2011, from which it is clear that in spite

of repeated orders passed by this Court, no action has been taken by the State Government to constitute High Power Committee as directed by this

Court. This Court by order dated 26/8/2013 passed in Writ Petition No.5640/2011 has observed as under:-

“It appears that inspite of repeated orders passed by this Court, no action has been taken by the State Government to constitute High Power

Committee as directed by this Court, however, since petitioners are registered as Doctor in Ayurvedic with respondent No.3, therefore, if the

petitioners are found practising in violation of the terms and conditions of registration which was issued in their favour then the respondents, at any

point of time, shall be at liberty to lodge complaint about the irregularities committed by the petitioners with the respondent No.3. If such complaint is

made at any point of time, then respondent No.3 shall take appropriate steps against the petitioners for cancellation of their license forthwith.

With the aforesaid, petition stands disposed of.â€​

Thus, it is clear that there is nothing on record to suggest that whether any High Level Committee was constituted or not and if that was constituted,

then what was its recommendations. Further, the order dated 26/8/2013 passed in W.P. No.5640/2011 simply directs for cancellation of license,

therefore, it has no application in case the errant is prosecuted.

So far as the amended provision of Section 24 of the Adhiniyam, 1987 is concerned, that amendment is confined to only those doctors, who are posted

in Government Health Centers / Societies, but the applicant was admittedly not posted in Government Hospital and was found practicing on allopathy

side in his clinic. Thus, it is clear that the applicant, who does not have requisite qualification to practice on allopathy side, was practicing on allopathy

side in an illegal manner. Accordingly, this Court is of the considered opinion that prima facie an offence is made out against the applicant.

It is further submitted by the counsel for the applicant that the charge as framed under Section 24 of the Adhiniyam, 1987 is not clear and is vague.

Even if the submission made by the counsel for the applicant is accepted, then it would not result in his discharge. If the applicant is of the view that

the charge is vague and would be detrimental to the applicant for taking his defence, then he may file an application for alteration or clarification of the

charges under Section 216 of Cr.P.C.

Under these circumstances, this Court is of the considered opinion that the order dated 7/6/2017 passed by the JMFC, Jobat, District Alirajpur in

Criminal Case No.506/2017 does not require any interference.

The Revision fails and is accordingly dismissed.