- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.559 OF 1997 APPEAL NO.559 OF 1997 APPEAL NO.559 OF 1997 The State of Maharashtra through Radhanagari Police Station ...Appellant vs. Hemant Anadrao Chavan ...Respondent Ms A.T.Javeri A.P.P. for State Mr.N.V.Bandiwadekar for the respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 4,2009 : APRIL 4,2009 : APRIL 4,2009 JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard learned A.P.P for the State and the learned Advocate for the respondent. The respondent was prosecuted for the offence punishable under section 33(2) of the Maharashtra Medical Practitioners Act, 1961 (hereinafter referred to as the said Act). It must be noted here that the offence has been allegedly committed in the year 1991 and as per the provisions of sub section 2 of section 33 of the said Act, before Amendment Act no.21 of 1993 was brought into force, the maximum sentence was of a period extending to two years in a case where offence was a third or subsequent offence under the said Act. Therefore, notwithstanding the amendment to section 378 of the Code of Criminal Procedure,1973 which was brought into force by the Act no.25 of 2005, this Appeal will be maintainable in this court. - 2 - 2. The allegation against the respondent is that the accused was found practicing as a Doctor without having a valid licence in contravention of Section 33(1) of the said Act. After considering the evidence of the prosecution witnesses, the learned Judge was of the view that no incriminating evidence was produced against the respondent and hence his statement under section 313 of the Code of Criminal Procedure,1973 was not recorded. 3. With the assistance of the learned A.P.P, I have perused the notes of evidence and other documents on record. P.W.No.1 Bhalwant Krishnaji Patil stated that the respondent was having a dispensary in his premises and he was practicing medicine from 1985 onwards. He stated that the patients from villages were taking treatment from the respondent-accused. He stated that when the respondent-accused started his practice in the village, there was no doctor available in the village and Doctor was available in the adjoining village. P.W.No.2 is Savubai Balwant Patil. She stated that respondent was practicing medicine in her premises and villagers were taking treatment from him. In the cross examination she stated that she was not aware whether the respondent-accused was possessing a licence to practice medicine. P.W.No.3 Pandurang Balwant Patil stated that the respondent was residing in the house of P.W.no.1 and was practicing as a Doctor. He, - 3 - however, stated that it is not correct to say that the villagers were taking treatment from him. He deposed that according to him the profession of the accused was of a Doctor as it was told by him. In the cross examination he admitted that there was no Doctor in the said village. P.W.4 is the P.S.I. who allegedly seized certain articles from the premises of the respondent. A panch witness to the alleged seizure panchnama has not been examined. 4. The learned counsel for the respondent has invited my attention to section 37 of the said Act which reads as under : "37. Notwithstanding anything contained in this Chapter, a person may practise medicine in any rural area- (i) if he has commenced practice in any 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 Homoeopathic Act,1951 (or other law in relation to the qualifications and registration of Homoeopathic or Biochemic Practioners) 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 is - 4 - his principal place of practice. " Section 37 forms part of Chapter VI which contains section 33 of the said Act. Apart from the fact that the witnesses admitted that there was no doctor in the village the fact that the respondent was practicing as a doctor is not established by examining a patient who had taken treatment from him. 5. If the entire evidence adduced by the prosecution witnesses is considered, it is apparent that the fact that respondent was practicing medicine in contravention of sub section 1 of section 33 of the said Act is not proved beyond reasonable doubt. That is the reason why the learned Judge has not recorded the statement of the respondent under section 313 of the Code of Criminal Procedure,1973. 6. Hence, the view taken by the learned Judge is a possible view. No case is made out for interference. Appeal is dismissed. JUDGE JUDGE JUDGE