Bombay High Court

State Of Maharashtra vs Tamanna Baburao Kurbetti on 21 February, 2018

Bench: S. K. Shinde

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

               CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPEAL NO. 769 OF 2001



The State of Maharashtra                     ....Appellant
                                            (Orig. Complainant)
      V/s.
Tamanna Baburao Kurbetti,
Age-26 years.,
R/at. Malli Galli, Gadhinglaj,
Hebbal Jaldyal, Tal.,Gadhinglaj
Dist. Kolhapur.                             ....Respondent
                                            (Orig. Accused)

                          *****
Mr. K.V. Saste, Additional Public Prosecutor for the State,
appellant.

None for the respondent.


                 CORAM :-        SANDEEP K. SHINDE, J.

                 DATE :-         21ST FEBRUARY, 2018.




JUDGMENT :-

1. The State has preferred this Appeal against the

order of acquittal dated 25th June, 2001 recorded by the

Learned Additional Sessions Judge, Gadhinglaj in

Criminal Appeal No. 3 of 2000, whereby the order of

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conviction passed by the Judicial Magistrate First Class,

Gadhinglaj in R.C.C. No. 17 of 1998 convicting the

respondent of the offence punishable under Section 33(2)

of the Maharashtra Medical Practisioners Act, 1961 was

set aside.

2. Section 33(1) of the Maharashtra Medical

Practisioners Act, prohibits practice in medicine by a

person other than a Registered Medical Practitioner. Sub-

Section 2 thereof, is a penal provision, which provides,

any person who acts in contravention of any of the

provisions of sub-section (1) of Section 3 shall on

conviction, be punished for the first offence with a

rigorous imprisonment which is not less than two years

and for the subsequent offence for a term which may

extend to 10 years with a fine.

3. Section 37 of the said Act reads as under :-

"Notwithstanding anything contained in this Chapter, a person may practise medicine in any rural area-

(i)If he has commenced practice in any

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village in the said area prior to a date on which a practitioner registered under the Bombay Medical Act, 1912, or under the Bombay Medical Practitioners Act, 1938 (or any law corresponding thereto) or, under the Bombay Homeopathic Act, 1951 (or other law in relation to the qualifications and registration of Homeopathic or Biochemic Practitioners) for the time being in force, has commenced, and is in regular practice of medicine in that village, and

(ii) So long as he continues to practise in that village as his principal place of practice."

(It may be stated, provisions of Section 37 now stands deleted by Mah.40 of 2005.s2)

4. Thus, the provisions of Section 37 permits a

person to practice medicine in any rural area, if such

practice he has commenced prior to the date on which a

Registered Medical Practitioner has commenced practice

in medicine in that Village.

5. In the case in hand, the respondent, accused

has commenced his practice in Village- Hebbal, Taluka-

Gadhinglaj, District- Kolhapur in 1993. It appears, the

P.W.1 who is a Medical Practitioner in the adjoining

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Village- Mungurwadi lodged a complaint with Nesari

Police Station that the respondent, accused being not a

Registered Medical Practitioner, is practising in the

Medicine in contravention of the provisions of Section

33(1) of the Maharashtra Medical Practitioners Act. On

this report, in March, 1996 by Dr. Chandrakant Patil, the

offence came to be registered against the respondent and

he was tried in R.C.C. No.17 of 1998.

6. The Learned Judicial Magistrate First Class,

Gadhinglaj vide judgment and order dated 5 th October,

2000 convicted the respondent of the offence punishable

under Section 33(2) of the Maharashtra Medical

Practisioners Act, 1961 and directed to suffer rigorous

imprisonment for 2 years and pay fine of Rs.2,000/-.

7. Aggrieved by the conviction as aforesaid, the

respondent had preferred Criminal Appeal No.3 of 2000

in the Court of Additional Sessions Judge, Gadhinglaj. The

Appeal was allowed by the Learned Sessions Judge by

judgment and order dated 25th June, 2001 and acquitted

the respondent, accused against which the present Appeal

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is preferred by the State.

8. Heard Learned APP for the State. None

appears for the respondent, though served.

9. Perused the records and proceedings. Section

37 of the Maharashtra Medical Practitioners Act, 1961

had an overriding effect as could be seen from the

terminology of the said Section. On the plain reading of

Section 37, it is manifest that, a person was permitted to

practice in Medicine in a Village, if there was no

Registered Medical Practitioner in the said Village before

he had commenced practice.

10. Here, it is the prosecution's case that, since

before 1993, there was Registered Medical Practitioner in

Village- Hebbal and thus accused deserves no protection

in view of the provisions of Section 37 of the Act.

11. Mr. Saste, the Learned APP has taken me

through the evidence of P.W.1 Dr. Chandrakant Patil, the

complainant. His evidence shows that, he is a resident of

Village- Mungurwadi and not of Village- Hebbal, where the

accused was practising Medicine. The evidence of Dr. Patil

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has not established a fact that, he was a Registered

Medical Practitioner since prior to 1993 and further that

he was practising in Village- Hebbal since before that. He

has merely stated that, he holds a Degree from A.M.

Shaikh Homeopathic Medical College, Belgaum having

Registration No. 16797. His evidence certainly falls short

of requirement to establish a fact that since prior to 1993

he was practising Medicine in Village-Hebbal. Thus, in my

view, the evidence of Dr. Patil was of no assistance to the

prosecution.

12. The prosecution has relied on the evidence of

P.W.3, one Umajai Yemagekar. His evidence shows that,

his son is a Practising Doctor and holds the degree of

B.A.M.S at Village-Hebbal. His evidence was recorded in

1999 wherein, he has stated that his son had started

practise in the Village-Hebbal, hardly six months before.

In other words, the evidence of this witness did not

establish a fact that, there was any other Registered

Medical Practitioner practising in Medicine prior to 1993.

13.              It     appears    from    the    record          that,       the




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prosecution had placed on record a Certificate issued by

the District Health Officer to prove that, Sub-Centre of

Primary Health Centre was functional at Village- Hebbal.

However, after going through the evidence, it appears

that the Primary Health Center was functional not at

Village- Hebbal but in Village- Mungurwadi as could be

seen from the evidence of P.W.1. That even otherwise, the

Certificate issued by the District Health Officer, has not

been proved by the prosecution by examining either the

said officer or any other said person from the said office.

14. Be that as it may, the fact remains that the

prosecution has not proved a fact that, prior to 1993