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CR.MA/9545/2001 7/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9545 of 2001
With
CRIMINAL
MISC.APPLICATION No. 9546 of 2001
With
CRIMINAL
MISC.APPLICATION No. 9547 of 2001
With
CRIMINAL
MISC.APPLICATION No. 9548 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AMITBHAI
J PANCHAL & 8 - Applicant(s)
Versus
MAHENDRABHAI
SHANKARBHAI PATEL & 2 - Respondent(s)
=========================================================
Appearance
:
MR
GAURANG H BHATT for
Applicant(s) : 1 - 9.
MR EE SAIYED for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) : 2,
MR KP RAVAL, APP for
Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 16/04/2010
ORAL
JUDGMENT
In
all the matters, as common question arise for consideration, they
are being considered by this common order.
The
short facts of the case appears to be that the complaints have been
filed by the original complainant respondent No.1 in the
concerned matters being representative of North Gujarat Pathologist
Association in the concerned Court of the Judicial Magistrate for
the offence punishable under Section 30 and 33 of the Gujarat
Medical Practitioner Act and for the offence punishable under
Sections 465, 468 and 420 of IPC. The accusation made in the
complaint is that the accused in the complaint are running
pathological laboratories without holding requisite qualification
and, therefore, the offence under Section 30 read with Section 33 of
the Gujarat Medical Practitioner
Act has been committed. The additional allegation in the complaint
is that merely because the accused are holding certain qualification
for laboratories technicians, the same is not sufficient to run
pathological laboratory/centre and, therefore, the damage is being
caused professionally to the complainant and the members of the
association of the complainant and is also cheating the patients and
the public at large and, therefore, the offences are committed under
Sections 465, 468 and 420 of IPC. It appears that the learned
Magistrate directed for investigation of the complaint under Section
156(3) of Cr.P.C. Under these circumstances, the present petitions
for quashing of the complaints concerned in the respect petitions.
Heard
Mr.B.P. Tanna, learned Counsel appearing with Mr.Bhatt, learned
Counsel for the petitioners, Mr.Saiyed, learned Counsel for original
complainant and Mr.K.P. Raval, learned APP for the respondent State
and Police Officers.
None
of the complaints has been filed by any patient or any person, who
was made to believe that the accused were holding necessary
qualification for running pathological laboratories, which has led
the patient or the person concerned to engage him for getting
services of the pathological laboratories, nor there is any
allegation in the complaints that any patient or the person was
issued a certificate of pathologist, which was signed by any of the
pathologists. Mere allegation of adverse effect on the profession
of the doctors, who are holding the degree of pathologists or
original complainant association would not be sufficient to attract
the provisions of Sections 465, 468 and 420 of IPC. Since the
complaint is not filed by or on behalf of any person, who has been
cheated, nor there is any allegation in the complaint that the
Centre or any pathologist is not genuine when a certificate issued
by such pathological laboratory, it can be said that the allegation
in the complaint, if considered as it is, would not constitute the
commission of offence under Sections 465, 468 and 420 of IPC.
Therefore, the complaint to that extent deserves to be quashed and
consequently the investigation so ordered by the learned Magistrate
qua that part of the complaint also would not survive, if the
complaint to that extent is quashed.
However,
so far as the accusation made in the complaint
for running of the pathological laboratories by the accused for the
offence under Sections 30 and 33 of the Gujarat Medical
Practitioner Act is concerned, the learned Counsel appearing for the
original complainant relied upon the decision of the Apex Court in
the case of Medical Council of India v. State of
Rajasthan, reported in 1996(7) SCC, 731 (AIR 1996 SC 2073)
and another decision in the case of Mukhtar Chand v. State
of Punjab and Haryana, reported in 1998(7)SCC, 579 (AIR 1999 SC,
468) and also the decision of
High Court of Madhya Pradesh in the case of Smt. Kamla
Patel v. State of M.P. & Ors., reported in AIR 2004 Madhya
Pradesh, 159 and the interim
order dated 28.4.2004 passed by the High Court of Allahabad in Civil
Misc. Contempt Petition No.820 of 2002 in the case of Rajesh
Kumar Shivastav v. Shri A.P. Verma & Ors.,
and it was contended that in all the matters, the observations were
made to the effect that if one is to run an independent
pathological laboratory, it has to be in the supervision of doctor
having degree of M.D. Pathology and mere degree of laboratory
technician, who is not
registered under the provisions of Gujarat Medical Practitioner Act
is not sufficient. It was submitted that the directions were also
issued by the other High Court in the respective States for
verification of the said aspects and the consequential orders and,
therefore, when the matter is at the stage of investigation by the
police under Section 156(3) of Cr.P.C., this Court may not exercise
the power for quashing of the complaint under Section 482 of
Cr.P.C., and at that stage qua the allegation, offence under Section
30 read with Section 33 of the Gujarat Medical Practitioner Act.
Whereas
the learned Counsel appearing for the petitioners, contended that
the petitioner-accused are not practising any medicines and they are
only conveying the laboratory analytical reports to the person, who
takes their services. In the submission of the applicants, such
would not constitute offence under Sections 30 or 33 of the Gujarat
Medical Practitioner Act, since no opinion is given by them for any
medicines or on the results of the machines. Therefore, it was
submitted that this Court may quash the complaint, even for the
alleged offence under Sections 30 and 33 of the Gujarat Medical
Practitioner Act.
It
appears that whether the accused are giving opinion about the
analytical report of the machines or not and whether the accused are
running analytical centre or pathological laboratory or not is an
essential aspects, which may be required to be investigated.
Further, if the accused are running pathological laboratories
independently where there is supervision of a doctor having
qualification of M.D. Pathology or not will also be an aspect to be
examined in the investigation. It is only after the investigation,
the matter can be concluded as to whether the offence under Section
30 or Section 33 of Gujarat Medical Practitioner Act prima facie is
committed or not. Under these circumstances, I find that it would
not be a case for exercise of the power to quash the complaint at
this stage for the alleged offence under Section 30 and 33 of the
Gujarat Medical Practitioner Act.
In
view of the above, the complaint is quashed in part for the alleged
offence punishable under Sections 465, 468 and 420 of IPC, but the
prayer for quashing of the complaint for the alleged offence
punishable under Sections 30 and 33 of the Gujarat Medical
Practitioner Act is not granted.
The
petitions are partly allowed to the aforesaid extent. Rule made
absolute to the aforesaid extent only. The present order shall not
operate as a bar to the complainant for withdrawal of the complaint,
if he is so desirous after undergoing the process in accordance with
law.
16.4.2010 (Jayant
Patel, J.)
vinod
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