Smt Kalpana Arella vs The State Of Telangana
2022 Latest Caselaw 2315 Tel

  THE HONOURABLE SRI JUSTICE K. LAKSHMAN

      CRIMINAL PETITION No. 9042 OF 2021

ORDER:

Heard Sri S. Tulasiram, learned Counsel for the

petitioners and the learned Public Prosecutor.

2. This petition is filed under section 482 of

Code of Criminal Procedure to quash the proceedings

in C.C.No.6533 of 2021 pending on the file of XII

Additional Chief Metropolitan Magistrate, Hyderabad.

3. The petitioners herein are accused in the

said C.C. No. 6533 of 2021. The offences alleged

against them are under sections 419, 420, 471, 473

and 120(b) of IPC.

4. As per the charge sheet, the allegations

levelled against the petitioners herein are as follows:

4.1 LW.2, ZEE-24 reporter, got credible

information that both petitioners posing themselves as

doctors, treating the people with German Medicine

without having valid certificates and cheating public.

On 04.09.2013, they have conducted sting operation,

found that the clinic was closed. They had taken

photographs. LW.2 along with his colleague proceeded

to their residence situated at Borabanda with Spy

Camera on the pretext of taking treatment. Both of

them entered into the house of petitioners as patients.

A2 welcomed them and they found A-1 posing as a

doctor in the main hall. She stated that she can treat

any illness with her German Medicine and she gave

medicines for his stomach pain. When they asked for

prescription, A-1 refused to provide prescription as the

data is stored permanently in her system and charged

fee for treatment. After recording the entire episode,

they approached LW.3 and asked her to lodge a

complaint.

4.2 On 13.09.2013, the official reporter of Zee-

24, LW.3, submitted a complaint with LW.1 regarding

fake doctors i.e. A-1 and her husband A-2 that both

the accused are treating the innocent people without

valid degrees. Upon their complaint, and on

information regarding illegal medical profession under

the name of Sri Sai Clinic, A-1 and A2, LW.1 along

with LW.3 and LW.4 raided their premises on

13.09.2013 and found the clinic was closed. The

District Medical & Health Officer has issued a notice

on 13.09.2013 asking them to produce Xerox copy of

their certificates and documents which are specifically

mentioned in the charge sheet. On verification of the

said documents, LW.1 found that they are fake, there

is no clarity on change of their names and prefix of the

word "Dr." to their names.

4.3 The medical certificates DTCD & FCCP of

accused No.2 is also fake degrees. Accused No.2 has

changed his surname through the Gazette. Thus, both

the accused without having valid certificates, are

treating the people by collecting fee and cheating them.

Thus, they are earning easy money by illegal medical

practice at the cost of lives of the public. Thus, both

the accused have committed the offences under

sections 419, 420, 471, 473 and 120(b) of IPC

5. Sri S. Tulasiram, learned Counsel for the

petitioners would submit that the 2nd respondent is not

having power to enquire into genuineness of

certificates of the petitioners herein. The manner in

which sting operation was conducted by the LW.2 and

LW.3 is illegal and highly objectionable. Though the

2nd respondent is not having power to verify the

genuineness of the documents, he has issued a notice

on 13.09.2013 requesting the petitioners to submit

their genuine legally valid medical certificates.

Accordingly, the petitioners have submitted certificates

on 16.09.2013. The Investigating Officer has not

recorded the statement of any relevant witness and he

has not conducted investigation properly. Without

conducting the investigation properly and without

recording the statements of relevant witnesses, the

Investigating Officer laid charge sheet against the

petitioners herein.

6. Referring to the proceedings dated

16.05.2014, the learned Counsel for petitioners would

submit that the Commissioner of Health & Family

Welfare, DM & HS, Campus, Sultan Bazaar,

Hyderabad, has addressed a letter to the Principal

Secretary to Government, Health, Medical & Family

Welfare Department, stating that the District Medical

& Health Officer, Hyderabad, gave a temporary

registration which is valid up to 05.10.2013, the 2nd

respondent has not followed the procedure etc., He

has requested the Government to issue show cause

notice to District Medical & Health Officer and appoint

an Enquiry Officer and conduct a detailed enquiry in

the issue. He would further submit that LW.1 himself

issued certificate of temporary registration of

Allopathic Private Medical Care Establishment, which

is valid for 90 days.

7. Referring to Gazette notification dated

16.12.2004, he would submit that the 2nd petitioner

has changed his name as Arella Venkata Ramana from

Sikkondi Venkata Ramana by following the procedure

laid down under the law. He would further submit

that the 2nd respondent has not followed the procedure

laid down in the notification dated 11.03.2002 issued

by the Medical Council of India with regard to

(Professional Conduct, Etiquette and Ethics)

Regulations, 2002. He would further submit that the

authority constituted under section 4 of the A.P.

Allopathic Private Medical Care Establishments

(Registration and Regulation) Act, 2002 (for short "Act")

is empowered to conduct enquiry with regard to

genuineness of the certificates possessed by the

petitioners herein. The said procedure was not

followed in the present case. The 2nd respondent is not

having power to initiate the same.

8. Referring to the complaint, the learned

Counsel for petitioners would submit that the reporters

of Zee-24 News Channel are extorting money and in

the said course of action, they have conducted the

alleged sting operation. In Rule 7 of the A.P. Allopathic

Private Medical Care Establishments (Registration and

Regulation) Rules, 2007 (for short "Rule"), the

procedure is prescribed for suspension or cancellation

of registrations. In view of the same, the 2nd

respondent, District Medical & Health Officer, is not

having power to lodge a complaint and to verify the

genuineness of the certificates possessed by the

petitioners. He would finally submit that the contents

of charge sheet lacks the ingredients of the offences

alleged against the petitioners herein. He also placed

reliance on the judgment of this Court in Criminal

Petition No.11586 of 2018 dated 20.11.2018, and also

the judgment of Madras High Court in W.P. Nos.

16189 to 16193 dated 10.11.2011, and also the

judgment of Hon'ble Supreme Court in State of

Haryana Vs. Bhajan Lal (1992 Supp(1) SCC 335). With

the said submissions, the learned Counsel for

petitioners sought to quash the proceedings in C.C.

No. 6533 of 2021 against the petitioners herein.

9. Whereas the learned Public Prosecutor on

instructions would submit that the Investigating

Officer had recorded the statements of 21 witnesses

and on consideration of their statements recorded

under section 161 of Code of Criminal Procedure, laid

charge sheet against the petitioners herein. Prima

facie, there are certain specific allegations against both

petitioners herein; they are triable issues. The

petitioners have to face trial and prove their innocence.

The defences taken by the petitioners cannot be

considered in a petition filed under section 482 of Code

of Criminal Procedure.

10. In view of the above said submissions, it is

relevant to note that the 2nd petitioner is claiming that

he has completed his M.B.B.S. from Kurnool Medical

College, affiliated to Sri Venkateshwara University

(SVU), Tirupathi in the year 1992. He got registered

with Medical Council of India with registration

No.34552. The 1st petitioner herein has done her

Bachelor's degree in Bachelor of Alternative System of

Medicine (BASM) with Indian Board of Alternative

Medicine institute recognized by Government of West

Bengal, and also did her Master's degree in Electro

Homeopathy in the year 2008. She got registered with

the Indian Registration No.IBAM/RMP/A-31354.

11. A perusal of record also would reveal that on

13.09.2013, respondent No.2 has conducted

inspection in the residence of the petitioners herein

along with Zee-24 Gantalu News Channel people and

advocate. On the same day, he has issued notice to

the petitioners to submit certain documents and they

have submitted their documents. There is no

procedure in any law conducting sting operation. If at

all LWs 2 and 3 have any grievance, they have to take

legal recourse and they have to act in accordance with

the law, but they cannot conduct sting operation and it

is unknown to law.

12. A perusal of the record also would reveal

that LW.1 i.e. K. Narendrudu, District Medical &

Health Officer, has issued a temporary registration of

Allopathic Private Medical Care Establishments dt.

05.10.2013 in the name of Sri Sai Clinic situated at

Yousufguda, Hyderabad, the same is valid up to

04.01.2014. It is a temporary registration issued

under the provisions of the Act. In the said certificate

it is also mentioned basic type of service. Thus, there

is procedure contemplated under the Act for

registration and regulation of Private Medical Care

Establishments and also powers, duties and functions

of authority.

13. Section 6 of the Act deals with application

for registration. Section 7 deals with certificate of

registration. Section 8 deals with inspection or

enquiry. Section 9 deals with cancellation or

suspension of registration. Section 11 deals with

offences and penalties.

14. It is also relevant to note that the

Government of Andhra Pradesh vide G.O. Ms. No. 135

dt.28.4.2000 has issued The Andhra Pradesh

Allopathic Private Medical Care Establishments

(Registration and Regulation) Rules, 2007 (for short

"Rules") by invoking powers under section 18 of the

Act. Rule 7 deals with suspension or cancellation of

registration. As stated above, the 2nd petitioner has

obtained the above said certificate on 05.10.2013 from

the LW.1 himself. It is relevant to note that LW.1

having issued the said temporary certificate, which is

valid for 90 days, conducted inspection in gross

violation of procedure laid down under the Act.

'Authority' is defined under section 2(a) of the Act and

it is having power and duties and functions necessary

and expedient for carrying out all or any of the

purposes of this Act. Section 2(k) of the Act deals with

Private Medical Care Establishment, which means a

clinic, a consultation room, a hospital, a medical

laboratory, a diagnostic centre, a maternity home, a

nursing home, an infertility or fertility clinic, a

physiotherapy establishment and any other like

establishment providing inpatient or day care

procedures, including surgery facilities by whatever

name called, and administered or maintained by a

person or body of persons whether incorporated or not,

other than the Central or the State Government or any

local authority or any other authority or body

constituted by or under any Statue of a competent

Legislature. The above said certificate was issued to

the 2nd petitioner under Rule 4 of the Rules. Having

issued said certificate, LW.1 should have suspended or

cancelled the same by following the procedure laid

down under the said Rules i.e. Rule No.7. The 2nd

respondent has not followed the said procedure laid

down under the Act or also under the Rules. The rule

also defined the District Level Advisory Committee.

15. It is also relevant to note that Rule 16 of the

said Rules deals with offences and penalties. It says

that if the Registering Authority comes to a conclusion

based on any enquiry report that any offence against

any of the provisions under Sections 11, 12, 13 & 15 of

this Act or these Rules has been committed by

Establishment and there is over whelming evidence

that the offence has been committed with the consent

or connivance of, or is attributable to any neglect on

the part of any Director, Manager, Doctor or any other

Officer of the said Establishment, a case shall be filed

either by Registering Authority or by an Officer

authorized by it before the First Class Judicial

Magistrate or a Metropolitan Magistrate, as the case

may be, for trial.

16. As stated above, Section 2(a) deals with

'Authority', which means, A.P. Private Medical Care

Establishment registering authority constituted under

Section 4. Section 4 says that the State Government

may, by notification, constitute an Authority to be

called the Andhra Pradesh Private Medical Care

Establishments Registering Authority and the

Government may constitute different authorities for

different areas. Section 5 deals with powers, duties

and functions of the Authority. Section 8 of the Act

deals with inspection or enquiry, and as per Section

8(1) of the Act, the Authority may cause an inspection

or enquiry in respect of any private medical care

establishment, its buildings, laboratories and

equipment and also the work conducted or done by

such establishment, to be made by any team of at least

two officers, one of whom will be a Medical Officer,

duly authorized by the Authority in this behalf.

Section 8(2) of the Act says that, any such team,

upon receipt of a complaint or information in any form

with the authorization by the Authority in this behalf

may enter any private medical care establishment at

any time with or without giving notice, examine and

inspect any equipment, articles or documents and

seize and take out there from and retain the same as

long as may be necessary for the purposes of

examination, analysis, investigation or evidence.

Section 8(3) of the Act says that the Authority

shall communicate to the private medical care

establishments its view with reference to the results of

such inspection or inquiry and direct the

establishment to undertake such steps within such

period as it may deem necessary and the said

establishment shall comply with the said directions.

Provided that no such directions shall be given without

providing the said establishment an opportunity of

making a representation.

Section 9 of the Act deals with cancellation or

suspension of registration.

Section 11 of the Act deals with offences and

penalties.

In view of the above said provisions, perusal of

the record including charge sheet would reveal that the

said procedure was not followed. The 2nd respondent

being District Medical & Health Officer has to follow

the procedure laid down under the Act and also the

Rules. The said procedure is not followed in the

present case. On the other hand, he has conducted

inspection along with LWs 2 and 3, reporters of Zee-24

News Channel.

     17.     It   is   relevant    to   note   that     when   the

Commissioner           of   Health      and    Family    Welfare,

Hyderabad, vide letter dated 16.05.2014 informed the

Principal Secretary to Government, Health, Medical &

Family Welfare Department that LW.1 has visited the

house of petitioners on 13.09.2013 along with

electronic media (Zee-24), private persons and

questioned on the change of names, authenticity of

degrees they are holding, took photos and video and

disturbed their privacy, and doctors have given

explanation showing evidences to the show cause

notice issued to them. Later, the District Medical &

Health Officer, Hyderabad, had lodged a complaint

against both the doctors in the Central Crime Station

to file a case against them. On receipt of the said

show-cause notice, both the doctors claimed that the

District Medical & Health Officer, Hyderabad, has

already issued temporary registration to their clinic

and by colluding with some private persons, a case has

been filed against them by damaging their fame in

society and requested for withdrawal of criminal case.

He has further stated that as per the material

available, it was noticed as follows:

1. The District Medical & Health Officer,

Hyderabad, himself gave temporary registration to

the above doctors, which is valid up to

04.01.2014.

2. The District Medical & Health Officer,

Hyderabad, has not followed the procedure of

principle of natural justice. When they produced

relevant records against show cause notice

issued, he has to act on merit.

3. The District Medical & Health Officer,

Hyderabad, inspected residential premises of the

practicing doctors instead of clinic. He took

electronic media & others during inspection

which is not a fair procedure. It shows that he

acted under some influence.

4. The first petitioner has complained that

their reputation has been effected due to such

procedures adopted by the District Medical &

Health Officer, Hyderabad, during inspection in

spite of the fact that they could not prove

anything against her.

5. The avoidable procedures followed by the

District Medical & Health Officer, Hyderabad, the

allegation that he acted in collusion with some

private persons and at the instance of a police

official cannot be ruled out.

Therefore, prima facie, there is a strong case

against the action of District Medical & Health Officer,

Hyderabad, and he has requested the Government to

issue show cause notice and appoint an Enquiry

Officer for a detailed enquiry in the issue.

18. During the course of hearing, the learned

counsel for petitioners would submit that the Principal

Secretary has not acted upon the said letter dated

16.05.2014 and he has not appointed any Enquiry

Officer.

19. Perusal of the charge sheet would reveal

that the Investigating Officer has recorded the

statement of LW.5 under section 161 of Code of

Criminal Procedure. He has stated that he has

approached Sri Sai Clinic, Yousufguda, Hyderabad, for

treatment. They have treated him for stomach ache.

On enquiry, he came to know that both petitioners

herein are fake doctors. Except LW-5, they have not

examined any other patient. LWs 6, 7 and 8 have

deposed about running of Sri Sai Clinic by the

petitioners herein. Thus, entire procedure under the

Act and Rules has been violated by the 2nd respondent

in lodging the complaint. The Investigating Officer has

not even considered the said aspects before laying

charge sheet against the petitioners herein.

20. Perusal of the record would reveal that the

Investigating Officer in Crime No.192 of 2013

addressed a letter to the West Bengal Medical Council,

who in turn sent a reply on 07.03.2014, referring

Sections 15 & 25 of Indian Medical Council Act 1956

and informed him that Indian Board of Alternative

Medicine is neither recognized by the State

Government nor by the Medical Council of India for

issuing certificates to the candidates possessing such

qualification for practicing. Vide letter dated

11.03.2014, the Medical Council of India informed the

Investigating Officer that the qualification granted by

the Indian Board of Alternative Medicine does not

come under the purview of the Medical Council of

India. The Investigating Officer was requested to

approach the concerned Board for authenticity of these

certificates. Vide another letter dated 17.04.2014, the

Medical Council of India informed the Investigating

Officer that the certificates issued by Indian Board of

Alternative Medicines, the Association of College of

Chest Physicians, India and the Society for Advanced

Studies in Medical Sciences in respect of first

petitioner does not come under the purview of the

Medical Council of India.

21. Telangana State Medical Council vide

proceedings dt. 15.03.2017 informed the Investigating

Officer that the 2nd petitioner registered his name in

the A.P. Medical Council and his registration number

is 34352 dt. 15.02.1993 and he also got renewed his

registration in A.P. Medical Council which is valid in

both State i.e. Andhra Pradesh and Telangana till next

renewal i.e. 22.05.2019. He got his surname changed.

With regard to additional qualifications, the same are

not recognized by Medical Council of India and these

qualifications are not registered in this Council.

Displaying of unrecognized degrees by MCI and not

registered in the Medical Council is unethical under

1.4.2 r/w 7.3 of IMC Regulations 2002. With regard

to first petitioner, it is mentioned that the Council

cannot certify the authenticity of the certificates since

they were issued by Indian Board of Alternative

Medicine (Electro Homeopathy). Vide proceedings

dated 28.04.2017, Secretary, the Board of Indian

Medicine, & Director in-charge, Department of Ayush,

Hyderabad, informed the Investigating Officer that the

Department of AYUSH deals with the systems of

Ayurveda, Yoga & Naturapathy, Unani, Homoeopathy

and the said Alternative System of Medicine is not

included in the AYUSH Department and therefore it

does not come under the purview of Department of

AYUSH.

22. Even vide letter dated 14.06.2017, Under

Secretary to the Government of India, Ministry of

Health and Family Welfare, informed the Investigating

Officer that the Department has not set up or

recognizing any body/entity, in whatever form

including 'Indian Board of Alternative Medicines,

Kolkata' for imparting education. Petitioners

themselves have filed press release issued by

University Grants Commission giving precautions

against fake Universities/ Vishwavidyalayas and

details of 21 said fake Universities/Vishwavidyalayas

were mentioned. Indian Institute of Alternative

Medicine, Kolkata, is one of such institutions.

23. As discussed supra, the 2nd respondent has

not followed the above said procedure prescribed

under Rules and Act while conducting inspection and

also while lodging the complaint. The Investigating

Officer has also not conducted investigation properly

and laid charge sheet against the petitioners herein.

Though the said facts would reveal from the

proceedings dated 16.05.2014 issued by the

Commissioner of Health & Family Welfare, no Enquiry

Committee was appointed for the purpose of

conducting enquiry into the issue. As stated above,

except LW-5, the Investigating Officer has not recorded

the statements of any patients. Prima facie the

contents of complaint lack the ingredients of offences

alleged against the petitioners. It is also relevant to

note that Section 11(3) of the Act deals with regard to

punishment for violation and Section 15 of the Act

and it says that "No Court shall take cognizance of any

offence punishable under this Act except on a

complaint made by the Authority or by an officer of

person authorized by it in this behalf. Thus, only

complaint is pre-requisite, the very proceeding under

Section 11 of the Act for alleged penal also no way

survives to continue. The said principle was also laid

down by this Court in Criminal Petition 11586 of 2018.

24. In view of the above said discussion, the

proceedings in C.C. No. 6533 of 2021 pending on the

file of XII Additional Chief Metropolitan Magistrate,

Hyderabad, are liable to be quashed. However, this

will not preclude the authorities concerned under the

Act and Rules to take appropriate action against the

petitioners for contravention if any, of any provisions of

the Act and Rules.

25. In the result, the Criminal Petition is allowed

by quashing the proceedings in C.C. No. 6533 of 2021

pending on the file of XII Additional Chief Metropolitan

Magistrate, Hyderabad. However, this order will not

preclude the authorities concerned under the Act and

Rules to take appropriate action against the petitioners

for contravention if any, of any provisions of the Act

and Rules.

26. As a sequel, Miscellaneous petitions, pending

if any in this Criminal Petition, shall stand closed.

__________________ K. LAKSHMAN, J 06.06.2022

BDR