Sudhakar S/O Sakhahari Tidke And ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 1937 Bom

                                                  1447.2016 Cri.WP.odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

               CRIMINAL WRIT PETITION NO.1447 OF 2016  

          1.       Sudhakar s/o. Sakhahari Tidke,  
                   Age-45 years, Occ: Electropathy & 
                   Naturopathy, 
                   R/o. Dedgaon Balaji, Tq. Newasa, 
                   District : Ahmednagar.  

          2.       Sanjay s/o. Sampatrao Taware
                   Age- 44 years, Occ: Electropathy & 
                   Naturopathy
                   R/o. Shirasgaon, Tq. Newasa,  
                   District : Ahmednagar.  

          3.       Annasaheb s/o Sukhdeo Deshmukh 
                   Age- 41 years, Occ: Electropathy & 
                   Naturopathy 
                   R/o. Deogaon, Tq.Newasa, 
                   District : Ahmednagar.  

          4.       Rajiv s/o. Bhanudas Deshmukh, 
                   Age-44 years, Occ: Electropathy & 
                   Naturopathy,  
                   R/o. Koradgaon, Tq.Pathardi,  
                   District : Ahmednagar.  

          5.       Balasaheb s/o. Sheshrao Gade, 
                   Age-43 years, Occ: Electropathy & 
                   Naturopathy,  
                   R/o.Manik Daundi, Tq. Pathardi, 
                   District : Ahmednagar.  

          6.       Arun s/o.Raosaheb Rajale,  
                   Age- 45 Years, Occ: Electropathy & 
                   Naturopathy, 
                   R/o. Shahar Takali, Tq. Shevgaon, 
                   District: Ahmednagar.  




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          7.       Kisan Gangadhar Gaikwad,  
                   Age-43 years, Occ: Electropathy & 
                   Naturopathy 
                   R/o.Salabatpur, Tq. Newasa, 
                   District : Ahmednagar.  

          8.       Suresh s/o. Kakasaheb Arle,  
                   Age-40 years, Occ: Electropathy & 
                   Naturopathy,  
                   R/o. Old Dahifal, Tq. Shevgaon, 
                   District : Ahmednagar.       PETITIONERS 

                           VERSUS 

          1.       State of Maharashtra,  
                   Through its Principal Secretary,  
                   Home Ministry, Maharashtra State,  
                   Mantralaya, Mumbai-32.  

          2.       Superintendent of Police,  
                   Police Headquarters, Ahmednagar,  
                   District : Ahmednagar.  

          3.       The Principal Secretary,  
                   Health Department,  
                   Mantralaya, Mumbai- 400 032.  
                   [Amended as per Court's order 
                   dtd.06.02.2017]              RESPONDENTS

                               ...
          Mr.P.R.Patil, Advocate for the Petitioners 
          Mr.S.G.Karlekar, APP for the Respondent Nos.1 
          to 3/State
                               ...

                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 18.04.2017 Pronounced on : 24.04.2017

1447.2016 Cri.WP.odt

JUDGMENT: (Per S.S.Shinde, J.):

1. This Petition under Article 226 of

the Constitution of India is filed with the

following prayers:

(A) By writ of mandamus, directions or orders in the nature of mandamus, the respondents be restrained from taking any adverse action for practicing in Electropathy / Electro-Homeopathy.

(A-1)By writ of certiorari or directions or orders in the nature of certiorari, the order dated 25.01.2016 (Exhibit-H, page 65), be quashed and set aside and it be further directed that no adverse action be taken against the petitioners without giving any opportunity of hearing to them.

2. The learned counsel appearing for

the petitioners submit that, the petitioners

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are from rural areas and their family members

are involved in agriculture, attending the

cows, buffaloes and she-goats. After

completing their 12th standard examinations,

the petitioners completed Electropathy /

Naturopathy course. It is submitted that,

Electropathy was not causing any harmful

effect to the health, therefore, it was

excluded from the definition of "practicing

medicine" as per Section 2 (2) of the

Maharashtra Medical Practitioners Act, 1961

[for short 'Act of 1961']. However, without

taking into consideration this important

aspect, the police machinery started

arresting indiscriminately the practitioners

in Electropathy. The Division Bench of the

Bombay High Court in the case of Nageshwar

Basantram Dubey Vs. Union of India & others1

gave appropriate directions in respect of

Electropathy trained persons. The State

1 2007 [3] Mh.L.J. 275

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Government was pleased to issue directions

from time to time for identifying the

practitioners who are not legally entitled to

practice. It is submitted that, even the

State Government has also started course a

titled as 'Advanced Diploma in Electro-

Homeopathy'. It is submitted that, in the

case of Nageshwar Basantram Dubey

[supra] and also in SLP (C) No.23572/2009

[G.G.S. Med.Inst.of & Hosp.of Elect.& Anr.

Vs. Union of India & Ors.], the stand taken

by the Union of India in the judicial

proceedings before the Supreme Court would

clearly show that, there is no ban on the

Medical Practice of Electro Homoepathy.

3. It is further submitted that,

petitioner no.2 Mr.Taware received notice on

25th January, 2016, issued by the Taluka

Health Officer, Panchayat Samiti, Newasa,

stating that, as per the order of the

Collector dated 2nd January, 2016, he was

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asked to close down his Dispensary. It is

submitted that, such drastic action is

without notice and without hearing

petitioner no.2, deserves to be quashed and

set aside.

4. It is submitted that, petitioner

no.2 had submitted his documents to the

concerned authorities, however, till date

there is no response from the concerned

authorities. It is submitted that, choosing

any profession and practice the same is

fundamental right of the petitioners

enshrined under Article 19 (1) (g) and

Article 21 of the Constitution of India.

Therefore, the learned counsel appearing for

the petitioners submits that, the Petition

may be allowed.

5. On the other hand, the learned APP

appearing for the respondent - State, relying

upon the affidavit-in-reply filed on behalf

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of respondent no.1, made following

submissions:

6. The instant Petition is filed by the

petitioners on the apprehension of adverse

action against the petitioners, who although

holding certificate of Electropathy and

Naturopathy are alleged to be practicing

Allopathy. Pursuant to the judgment of the

Bombay High Court reported in 2007 [3]

Mh.L.J. 275 [Nageshwar Basantram Dubey Vs.

Union of India and others], the persons

holding degree or diploma in Electropathy or

Homeo-Electropathy are permitted to practice

in Electropathy or electrotherapy without

requirement of registration as Medical

Practitioner in view of the provisions of

Section 2 (2) of the Act of 1961. In the

light of the said judgment, the persons such

as the petitioners holding degree or diploma

in electropathy and electrotherapy are not

entitled to practice allopathy or claim to be

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Medical Practitioners, Doctors etc. nor they

are entitled to use any title like Dr. or any

abbreviation prefixing or suffixing which may

indicate that they are Doctors or Medical

Practitioners and on such attempt they are

liable to be prosecuted for violation of the

provisions of the Act of 1961.

7. It is further submitted that, the

Writ Petition is filed seeking blanket

protection without any cause of action but in

anticipation, and therefore, the claim in the

petition does not merit consideration. It is

submitted that, it is true that, the notice

is issued to petitioner no.2, which is

challenged in the Petition by way of

amendment. It is submitted that, in the

entire Ahmednagar District, many complaints

were received from various villagers,

alleging therein that, the persons like the

petitioners although possessing degree /

diploma in Electropathy, Electrotherapy were

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practicing allopathy and also using title as

Dr. and who, for such acts, are treated as

bogus Doctors. It is submitted that, although

notice, which is under challenge in the

present petition, is bereft of any details as

regards illegal acts of the petitioners, but

during inquiry by the medical authority,

documents in the nature of communications,

affidavit etc. presented by few of the

petitioners and more particularly petitioner

nos.1, 2 and 7 are traced, wherein, the said

petitioners have on their own accord titled

themselves as Doctors and as such there is

violation of the provisions of the Act of

1961, and which may result in prosecution of

such petitioners and others who indulged in

such violation. Considering the various

complaints received in the Ahmednagar

District, a team from Health Department has

been taking search of such persons who are

attempting to practice allopathy and are

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styling themselves as Doctors which as per

the reported judgment referred herein above,

is violation of the provisions of the Act of

1961. Considering the allegations of

violation of provisions of the Act of 1961,

as regards practice of allopathy and posing

as medical practitioners/Doctors; a raid was

conducted against one A.R.Wabale from Kukana,

Taluka Newasa and on the basis of the said

panchanama, the First Information Report is

registered against the said person Anil

Abasaheb Wabale being FIR No. I-293/2016

registered against Ganesh Clinic at Kukana,

Taluka Newasa, District Ahmednagar on

27.10.2016 under Section 420 of the IPC and

under Section 33 [1] of the Maharashtra

Medical Practitioners Act, 1961.

8. It is further submitted that, the

petitioners, who are indulged in such illegal

acts on getting knowledge of lodgment of the

FIR against the said person A.R. Wabale, have

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with a mala fide intention approached this

Court for seeking blanket protection in their

bid to continue such illegal acts under the

garb and protection of orders of this Court.

Immediately on lodgment of FIR against

A.R.Wabale, the practitioners as like the

petitioners have downed their shutters for

which reason the Officers of the Health

Department could not conduct search for

initiating prosecution against them. It is

submitted that, the authorities of the Health

Department have never taken action against

any person claiming to hold degree or diploma

of electropathy or electrotherapy and who are

practicing in that field and who are not

titling them as Doctors nor making any

efforts to pose as Medical Practitioners,

Doctors, etc. Therefore, the learned APP

submits that, the Petition is devoid of any

merits, and the same may be dismissed.

9. We have heard the learned counsel

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appearing for the petitioners and the learned

APP appearing for the respondent - State at

length. With their able assistance, perused

the pleadings and the grounds taken in the

Petition, annexures thereto, and the

affidavit-in-reply filed by respondent no.1.

It appears that, petitioner no.2 herein

addressed a letter to the Taluka Health

Officer, Health Department, Panchayat Samiti,

Newasa. Upon careful perusal of the said

letter, the same is signed by the petitioner

no.2. He has mentioned his name as 'Dr.Sanjay

Sampatrao Taware'. Therefore, it is

abundantly clear that, the petitioner no.2

though not entitled to prefix the word 'Dr.'

to his name, he is using the same, and

therefore, the action was taken against him.

In the case of Nageshwar Basantram Dubey

[supra] in para 31 it is held thus:

31. For the aforesaid reasons, we find no merit in the present

1447.2016 Cri.WP.odt

petitions. Therefore, all the petitions stand dismissed. However, it is made clear that as far as the petitioners, who claim to hold degree or diploma in Electropathy or Homeo-Electropathy, may practice in Electropathy or Electrotherapy without registration as medical practitioners in view of proviso to sub-section (2) section 2 of the Maharashtra Medical Practitioners Act. At the same time it is also made clear that they will not be entitled to practice as or claim to be medical practitioners, doctors etc. nor they are entitled to use any title, like Dr. or any abbreviations prefixing or suffixing their names which may indicate that they are Doctors or Medical Practitioners. If they violate the provisions of law, necessary action including prosecution may follow as per the provisions of Maharashtra Medical Practitioners Act, 1961.

10. In that view of the matter, we do

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not see any reason to entertain the Petition

so far as petitioner no.2 is concerned. So

far as other petitioners are concerned, at

present, there is no any cause of action for

filing the petition. The contention of the

counsel appearing for the petitioners that,

before initiating any action or taking

drastic action, the petitioners should be

afforded reasonable opportunity of filing

their reply/hearing is a matter which can be

considered and would fall within the domain

of the State Government for consideration.

In that respect, the petitioners are free to

approach the State Government. In case the

petitioners wish to approach for redressal of

their above-mentioned grievance, in that case

we grant liberty to the petitioners to file

the representation within four weeks from

today. In case such representation is filed

within aforesaid period, the concerned

Department or the Competent Authority to

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consider and decide the same within twelve

weeks from filing such representation.

11. With above observations, the Writ

Petition stands disposed of.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                     JUDGE  

After pronouncement of the judgment,

the learned counsel appearing for the

petitioners prays for continuation of the ad-

interim relief. Prayer is vehemently opposed

by the learned counsel appearing for the

respondents.

We do not see any reason to continue

ad-interim relief which was in force during

the pendency of the Criminal Writ Petition.

Hence, said prayer stands rejected.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC