Crl.M.C. No.1545/2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933** **Crl.MC.No. 1545 of 2011() ------------------------------------CRIME NO.1129/2010 OF PUNALOOR POLICE STATION, KOLLAM** ## **PETITIONER/ ACCUSED** **------------------------------------** **DR.NOEL DAS LAZARUS EASTER RAJ, S/O.LATE EASTER RAJ, PODANUR VILLAGE, 15 D PODANUR, COIMBATORE,PRESENTLY LIVING IN GOPAVANAM, 63 PH NAGAR, THOLICODE, PUNALUR, KOLLAM DISTRICT** **BY ADV. SRI.SIRAJ KAROLY** ## **RESPONDENT/ COMPLAINANT** **----------------------------------------------** **THE INSPECTOR OF POLICE, PUNALUR POLICE STATION, KOLLAM, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN-682 031** **BY PUBLIC PROSECUTOR SRI.JAYASURYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **CRMC.NO.1545/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX .1: COPY OF THE FIR ANNEX.2: COPY OF THE MBBS CERTIFICATE DATED 15/11/1974 ANNEX.3: COPY OF THE MEDICAL REGISTRATION CERTIFICATE NO.22992 DATED 09/11/1972. ANNEX.4: COPY OF THE TNMC IDENTIFICATION CARD DATED 19/02/2004 AND 02/08/2010 ANNEX.5: COPY OF THE MBBS SYLLABUS-MCI ANNEX.6: COPY OF THE MBBS SYLLABUS AT THE AIIMS DATED JULY 2005. ANNEX.7: COPY OF THE INDIAN MEDICAL PROFESSIONAL CONDUCT ETIQUETTE AND ETHICS) REGULATIONS, 2002.** ## **RESPONDENT'S ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **THOMAS P. JOSEPH, J.** **-------------------------------------Crl.M.C. No.1545 of 2011 -------------------------------------Dated this the 20[th] day of June, 2011.** ## **ORDER** Petitioner is a medical practitioner having MBBS degree and claims to have obtained diploma in ophthalmology and diabetes. He was working as ophthalmologist in New Bharath Eye Hospital, Punalur. While so, a complaint was received by the Circle Inspector of Police, Punalur alleging that petitioner, without necessary qualification is engaging in ophthalmic treatment, the hospital authorities making patients believe that petitioner is an eye specialist is inviting patients and they are being treated for eye diseases. It is also alleged that petitioner has neither registered with the Kerala Medical Council nor the Indian Medical Council and that he has exhibited degrees which he actually does not possess. As directed by the Circle Inspector, Punalur Police registered Crime No.1129 of 2010 initially for offence punishable under Section 420 of the Indian Penal Code (for short, “the IPC”) against petitioner and the hospital authorities. In the course of investigation, the Police submitted a report stating that offences under Sections 468 and 471 of the IPC are also involved and accordingly, investigation is being continued for the said offences as well. Petitioner challenges registration of the case and further proceeding against him on various grounds. Learned counsel, Shri C. Devasikhamani has contended that allegations are false and no offence punishable under Section 420 and much less Sections 468 and 471 of the IPC are involved. It is contended that **Crl.MC No.1545/2011** 2 petitioner is a medical practitioner with MBBS qualification and hence is entitled to practice in ophthalmology as well. The further contention is that if at all petitioner has not either registered with the Medical Council or has used any degree which is not recognized by the Government of India or the State Government, proper course open is to prosecute petitioner as provided under the Indian Medical Degrees Act, 1916 and not to prosecute him for offences under the IPC referred to above. Learned counsel submitted that it is not for the Police or court to decide as to whether a person is medically qualified to engage in medical profession and placed reliance on the decisions in **Sanjeev** **Gupta and others v. Union of India and another (AIR 2005 SC** **300), Jacob Mathew v. State of Punjab and another ((2005) 6 SCC 1)** and **Martin F. D’Souza v. Mohd. Ishfaq ((2009) 1 SCC (Cri.)** **958)** . Learned Public Prosecutor has submitted that on the facts and circumstances made out in the investigation, offences as attributed to the petitioner are prima facie revealed and hence there is no reason to interfere with the on going investigation. It is also submitted by the learned Public Prosecutor that as per Section 38 of the Travancore-Cochin Medical Practitioners Act (for short, “the Act”), a medical practitioner could practice medicine in the State of Kerala only if he has registered himself under the provisions of the said Act. It is pointed out that petitioner has not obtained any registration as medical practitioner in the State of Kerala. **Crl.MC No.1545/2011** 3 2. To understand the rival contentions it is necessary to refer to the relevant documents produced by either side and the CD file produced by the learned Public Prosecutor. Annexure-1 is the FIR registered by the Punalur Police initially for offence under Section 420 of the IPC alleging that petitioner and accused 2 to 4 with intent to cheat the public and make unlawful game for themselves, petitioner engaged in treatment of eye diseases without necessary qualification. Annexure-2 is the certificate of Faculty of Medicine from the University of Madras awarding petitioner degree of Bachelor of Medicine (MBBS). Annexure-3 is the medical registration certificate issued by the Tamil Nadu Medical Council. That registration was granted to the petitioner on 09.11.1972. Annexure-5 is the syllabus for MBBS. It is seen from Annexure-5 that during third year the subjects which students for MBBS are to be appear for, are ophthalmology, ENT and Community Medicine. It is stated that the broad goal of teaching of students in ophthalmology is to provide such knowledge and skills to the students that shall enable them to practice as a clinical and as a primary eye care physician and also to function as a community health leader to assist in the implementation of National Programme for prevention of blindness and rehabilitation of visually affected. Annexure-6 is the syllabus for MBBS issued from All India Institute of Medical Science (AIIMS). 3. I have gone through the CD file concerning the investigation conducted so far. It contains a complaint allegedly preferred by one Ciby John to the Circle Inspector of Police, Punalur based on which the case was registered. The Police conducted a search in New Bharath Eye Hospital, **Crl.MC No.1545/2011** 4 Punalur (for short, “the hospital”) where petitioner was engaged in treatment in ophthalmology. It refers to the relevant records seized from the hospital concerning the qualification of petitioner as well as treatment given to various persons. At page 43, there is a letter dated 23.06.2010 from the TravancoreCochin Council of Modern Medicine and addressed to the Circle Inspector, Punalur. In that letter, it is stated that petitioner is not registered with the said Council with registration No.22992 (the registration number shown in the relevant records of petitioner) and that the said registration belongs to Dr.Jayan Kallupuram Gangadharan who was registered with the Tranvancore-Cochin Council of Modern Medicine. It is also stated in that letter that as required under Section 38 of the Act referred to above, persons who have not obtained registration under the said Act shall not practice medicine in the State of Kerala. (In Annexure-4, identity card issued by the Tamil Nadu Medical Council, registration number of petitioner is given as 22992.) Page 45 is a letter from the same Council dated 06.07.2010 also addressed to the Circle Inspector of Police, Puralur. There, it is stated that qualification of DOMS and P.G. Course in Ophthalmology awarded by the University of Vienna to the petitioner are not seen included in the list of recognized qualifications under the Medical Council Act. The photocopy of identity card issued to the petitioner by the Tamil Nadu Medical Council stated that petitioner is having qualification of B.Sc, MBBS and DOMS. Page 47 contains letter dated 21.07.2010 from the Tamil Nadu Medical Council. That Council has stated that petitioner is a registered medical practitioner (registration number is 22992) and that he has not registered any **Crl.MC No.1545/2011** 5 ophthalmology degree DOMS with Tamil Nadu Medical Council. DOMS and diploma of petitioner are not recognized and registered under the Tamil Nadu Medical Council as well (It is reported so in letter dated 21.07.2010). 4. Page 51 contains letter dated 27.07.2010 issued by the District Medical Officer (H), Kollam to the Circle Inspector of Police, Punalur. The subject matter referred to therein is verification of qualifications of petitioner. It is stated in the said letter that conducting ophthalmic surgery is irregular, a certificate can be issued (by petitioner) only with relation to his MBBS degree and that to display any degree which is not recognized by the Medical Council of Kerala is illegal. Page 69 is the report dated 31.07.2010 to incorporate Sections 468 and 471 of the IPC. It is also seen at page 91 that the Investigating Officer has seized certain certificates allegedly issued by petitioner and prepared an inventory. In the certificates issued for visual standards for driving allegedly issued by the petitioner, his degree is given as B.Sc, MBBS (ZO Vienna), DOMS. Dip. in DIAP with registration No.22992. Those certificates were required to be issued by an ophthalmologist with a registered post graduate qualification in ophthalmology. I also find the statements of certain (alleged) victims of treatment by petitioner. 5. Now the question is whether registration of case against petitioner is to be quashed. Learned counsel contends that even with the basic MBBS degree, petitioner is entitled to give treatment for eye diseases and as revealed by Annexure-5. But, it is relevant to note that even Annexure-5 only refers to the holder of MBBS degree engaging himself in clinical examination of **Crl.MC No.1545/2011** 6 eye diseases and not to engage in surgery. Prima facie, petitioner could not have, with MBBS degree conducted surgery for eye disease. The question also arises whether petitioner had any mala fide intention in exhibiting registration No.22992 while he was engaged in giving treatment at Punalur, in Kerala State, (a registration number which was issued by the Tamil Nadu Medical Council) while petitioner had not obtained any such registration under the Act and Section 38 of the Act prohibited him from acting as medical practitioner in the State of Kerala without such registration. Petitioner could have used the said registration only for treatment in Tamil Nadu. Learned counsel has invited my attention to the Indian Medical Degrees Act, 1916 and contended that petitioner, if at all has assumed any degree which is not recognized by the Central or State Government or the respective Medical Council, petitioner could be prosecuted only under Section 6 of the said Act which is punishable with fine of `.250/- and for any subsequent conviction with fine which may extend to `.500/-. Learned counsel contended that going by the nature of punishment for the said offence it is non-cognizable in nature and hence the Police could not register a case and investigated the said offences without permission of jurisdictional Magistrate under Section 155(2) of the Code of Criminal Procedure (for short, “the Code”) which has not happened in this case. It is submitted by learned counsel that under Section 7 of the said Act no court shall take cognizance of an offence punishable under the said Act except upon a complaint made by the order of State Government or or upon complaint made with the previous sanction of the State Government. I must bear in mind that here is a case where the offence **Crl.MC No.1545/2011** 7 alleged against petitioner is not one coming under the provisions of the Indian Medical Degrees Act, 1916. 6. Learned counsel has placed reliance on the Supreme Court decisions which I have referred to above. In **Sanjeev Gupta and others v. Union of India and another** (supra) the Supreme Court has considered validity of medical degree issued by a foreign university, viz. the erstwhile USSR. Question considered was whether students who applied for registration for medical practice after 15.03.2001 were required to qualify the screening test (to be conducted in India) notwithstanding the foreign degree the students have obtained. There, according to the learned counsel, the Supreme Court has found that it is not for the court to decide who is qualified to practice medicine. That is not the issue involved in the present case where the allegation is of cheating and other offences. The other decisions relied by learned counsel related to the question when a medical practitioner could be booked for negligence in the course of discharge of his professional duty which has no bearing on the facts and circumstances of the case. 7. It is argued that at any rate no offences punishable under Sections 468 and 471 of the IPC are attracted. According to the prosecution, petitioner has issued certificates for visual standards for driving which are required to be issued only by an ophthalmologist with registered post graduate qualification in ophthalmology (while the degrees petitioner is said to have obtained from foreign university are not recognized or registered in this country). The Investigating Officer has to consider the question whether, assuming that **Crl.MC No.1545/2011** 8 certificates with false recitals have been issued by petitioner, that would amount to offence as defined under Section 464 of the IPC so that it could be said that petitioner has committed forgery. Assuming that offence of forgery would not stand, it is also to be considered whether it is relevant in concluding whether petitioner has committed the offence of cheating. Since the matter is in the course of investigation and it is within the realm of Investigating Officer to look into those aspects and submit final report accordingly, it is not necessary for me, at this stage, to pronounce verdict. I leave that matter to be looked into by the Investigating Officer and at any rate by the jurisdictional Magistrate. 8. Having regard to the circumstances which I have stated above, I am not inclined to think that the FIR and on going investigation against petitioner are to be quashed. With the observations made above, this Criminal Miscellaneous Case is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**