Ramesh M S/O. Late Dodda Marappa vs State Of Karnataka
2022 Latest Caselaw 2845 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 21st DAY OF FEBRUARY 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

          CRIMINAL PETITION NO.101920/2021
BETWEEN

RAMESH M. S/O.LATE DODDA MARAPPA,
AGE-52 YEARS, OCC-FORMER,
R/O.12TH WARD NEAR PIRLA MOSQUE,
KUDLIGI TOWN, BALLARI.
                                            ...PETITIONER
(BY SRI SRINIVAS B.NAIK, ADVOCATE)

AND

STATE OF KARNATAKA,
THROUGH KUDLIGI POLICE STATION,
DISTRICT BALLARI,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, 580 011.
                                          ...RESPONDENT.
(BY SRI RAMESH B.CHIGARI, HCGP)

      THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C.
AND PRAYED TO QUASH THE ENTIRE CHARGE SHEET AND
ORDER DATED 28.01.2021 PASSED IN C.C.NO.8/2021 ON THE
FILE OF SENIOR CIVIL JUDGE AND JMFC, KUDLIGI REGISTERED
FOR THE OFFENCES PUNISHABLE UNDER SECTION 19 OF
KARNATAKA PRIVATE MEDICAL ESTABLISHMENT ACT, 2007
AND UNDER SECTION 420 OF IPC.
      THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
                                 2




                            ORDER

Heard Shri Srinivas B.Naik, the learned counsel appearing

for the petitioner. The learned HCGP is directed to accept notice

for the respondent-State and is heard in the matter.

2. The petitioner is before this Court calling in question

the proceedings in Criminal Case No.8/2021 pending on the file

of Senior Civil Judge and JMFC Court, Kudligi, registered for the

offence punishable under Section 19 of the Karnataka Private

Medical Establishment Act, 2007 and Section 420 of the Indian

Penal Code, 1860.

3. It is not in dispute that the said issue stands

covered by the judgment rendered by the co-ordinate Bench of

this Court in Crl.P.No.8166/2015, disposed of on 13.6.2019,

wherein this Court has held as follows:

7. Section 3 of the Act requires prior registration to run any private medical establishment. The said provision reads as under :-

"3. Registration of Private Medical Establishments - On and after the appointed day, No Private Medical Establishment shall be established, run or maintained in the State except under and in accordance with the terms and

conditions of registration granted under the Act.

Provided that a Private Medical Establishment in existence immediately prior to the appointed day shall apply for such registration within six months from the date of commencement of the Karnataka Private Medical Establishments (Amendment( Act, 2012 and pending orders thereon may continue to run or maintain till the disposal of the application and shall comply with the provisions of this Act."

Section 7 of the Act deals with the procedure for disposal of application for registration of private medical establishment. Any person aggrieved by the order passed on the application submitted by him is required to approach the Registration and Grievance Redressal Authority.

Section 19 provides for penalties for violation of the provision of the Act. The Section reads as follows :-

"19. Penalties - (1) Where any person establishes, runs or maintains a Private Medical Establishment without registration granted under Section 7 he shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend upto one lakh rupees.

(2) When a person is convicted under sub- section (1), the Registration and Grievance Redressal Authority shall direct immediate closure of the un-

registered Private Medical Establishment, except where a registration is cancelled

or suspended and an appeal filed against such cancellation or suspension is pending.

(3) Every order made under sub-

section (1) shall contain a direction that the inpatients of such unregistered Private Medical Establishment shall be transferred to such other Private Medical Establishment as may be specified in that order and it shall also contain such other provisions as to the care and custody of such inpatients pending such transfer.

(4) Where any person runs or maintains a Private Medical Establishment in contravention of the conditions or registration or contravenes the provisions of Section 12 or 13, or fails to comply with the direction issued under sub-section (2). he shall, on conviction, be punished with a fine which may extend to twenty five thousand rupees and in the case of a second or subsequent offence with a fine which may extend to fifty thousand rupees.

(5) Where a person contravenes any other provision of this Act or the rules made thereunder he shall, on conviction, be punishable with a fine which may extend to one lakh rupees.

(6) Notwithstanding anything contained in this Act, whoever makes any false and frivolous or vexatious punishable complaint by the under this Registration Act and shall be Grievance Redressal Authority with a fine which may extend to ten thousand rupees.

8. Section 19A of the Act debars the Court from taking cognizance of the offences committed under the Act except on the written complaint by the Registration and Grievance Redressal Authority or any officer authorized in this behalf by the Registration and Grievance Redressal Authority. The Section is extracted here below :-

"19A. Cognizance of offence - No court shall take cognizance of offence under this Act except on a written complaint by the Registration and Grievance Redressal Authority or any officer authorized in this behalf by the Registration and Grievance Redressal Authority;

Provided that nothing in this section shall prevent the aggrieved person to approach the competent court after exhausting the remedies available under this Act and in case the Registration and Grievance Redressal Authority or the authorized officer fails to make written complaint within thirty days from the date of application to make a complaint."

Though the stage of taking cognizance by the Court has not yet reached, yet, in view of the above provision, the jurisdiction of the police to investigate into the alleged violation of the provisions of the Act based on the information lodged by a private person has been impliedly barred. The Act contemplates prosecution of the offenders for the violation of the provisions of the Act only in the manner provided under Section 19A of the Act. When the Act contemplates a particular procedure, the police in exercise of their general powers under Criminal Procedure Code cannot usurp jurisdiction to register the case and

investigate into the matter. Since the FIR in question is registered by the police contrary to Section 19A of the Act, the registration of the case and the consequent investigation thereon has to be held as illegal and hence, to act ex-debito justiae to do real and substantial justice and to prevent the police from abusing their powers and also to secure the ends of justice, it is necessary to exercise the inherent powers under Section 482 of Cr.P.C. to quash the impugned proceedings.

Accordingly, the petition is allowed. The prosecution initiated against the petitioners in Crime No.159/2015 for the alleged offences is quashed. Liberty is reserved to the Officer authorised under the Act to proceed against the petitioners for the alleged contraventions in accordance with law."

4. Later, this Court in Crl.P.No.936/2019, disposed of

on 25.6.2019, has held as follows:

2. Sri.Aruna Shyam M., learned Advocate appearing for the petitioners submits that as per Section 19A of the Karnataka Private Medical Establishment Act, 2007, no Court shall take cognizance of the offence under the said Act except on written complaint by an authorized officer. Therefore, filing a complaint under Section 154 of Cr.P.C. is contrary to law.

3. The said submission on the position of law is not disputed by the learned High Court Government Pleader.

4. In the circumstances, this petition merits consideration and accordingly it is allowed. FIR No.82/2018 pending on the file of Addl. Chief Judge

(Jr.Dn) and J.M.F.C Court, Sira and all further proceedings thereon are quashed, so far as petitioner is concerned.

5. As prayed for by the learned High Court Government Pleader, liberty is reserved to the State Government to initiate action, if they are so advised, in accordance with law.

5. In the light of the issues raised in the subject

petition being identical to the one decided by the co-ordinate

Benches of this Court (supra), the following:

ORDER

i) The criminal petition is allowed.

ii) The proceedings in Criminal Case No.8/2021

pending on the file of Senior Civil Judge and

JMFC, Kudligi, stands quashed qua the

petitioner.

iii) Liberty is reserved to the Officer authorized

under the Act to proceed against the

petitioner for the alleged contraventions in

accordance with law.

SD JUDGE CKK