1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.11.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.O.P.(MD).No.15385 of 2011 and M.P.(MD) No.1 and 2 of 2011 Narayanan : Petitioner Vs. The Inspector of Police, Karur Town Police Station, Karur District, Karur : Respondent PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records in pursuant to the charge sheet pending in C.C.No.527 of 2010 on the file of the Judicial Magistrate No.1, Karur and quash the same. For Petitioner : Mr.S.Gokulraj For Respondent : Mr.P.Kandasamy Government Advocate (Crl.Side) O R D E R This petition has been filed to call for the records in pursuant to the charge sheet pending in C.C.No.527 of 2010 on the file of the Judicial Magistrate No.1, Karur and quash the same. 2. Heard Mr.S.Gokul Raj, learned counsel appearing for the petitioner and Mr.P.Kandasamy, learned Government Advocate (criminal side) appearing for the respondent. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner is a private medical practitioner, who is doing allopathic medicine practice by experience and he is one of the members of the Private Medical Practitioner's Association and even though, the petitioner is not a qualified medical practitioner, his practice has been regularised and he has been permitted to do practice, since he got a 10 years of practical experience and such practitioners would alone be the members of the said Association. 4.He would also submit in his argument that as per the direction of the Central Government, in order to regularise the practice of non qualified medical practitioners, his service is being recognised on his acquiring 10 years of practice and in order to bar the new entrants into this profession, except the said persons, obtained qualification through appropriate degrees steps are being taken. He would also submit that the advise given by the Central Government is yet to be carried out by the various State Governments including Tamil Nadu and the petitioner, being one the members of the Private Medical Practitioner's Association, is doing his lawful practice in this State and he has also filed a Writ Petition in W.P.(MD).No. 9691 of 2006 and he obtained an injunction against both the https://hcservices.ecourts.gov.in/hcservices/ 2 Governments and the police and it is still pending. He would also submit in his argument that another batch of Writ Petitions have also been filed before this Court and orders have also been passed not to interfere in the profession of the members of the Private Medical Practitioner's Association and therefore, the practice of the petitioner in allopathic medicine even though he was not qualified be protected by the order passed by this Hon'ble Court and however, the respondent police, under the guise of prohibiting the quacks are tending to harass the petitioner. Therefore, they have to be protected from harassment from police except under due process of law. The case registered in contravention of the prohibitory order passed in W.P.(MD) No.9691 of 2006 is not sustainable and therefore, it has to be quashed. 5. The learned Government Advocate (Crl. Side) appearing for the State would submit in her argument that the petitioner is not entitled to practice allopathic medicine without any degree obtained in Medicine and therefore, the profession of the petitioner on the face of it, is not legal and the ultimate sufferer would be the public, who are caught in the hands of the non qualified medical practitioners, who are practising allopathic medicine. She would also draw the attention of this Court to the Judgement of the Hon'ble Apex Court made in Rajasthan Pradesh Vs. S.Sardarshahar and another reported in (2010) 6 MLJ 82 (SC) in support of his argument. She would also bring into the notice of this Court to yet another Judgement of the Hon'ble Apex Court in Poonam Verma Vs. Ashwin Patel and others reported in (1996) 4 SCC 332, for the proposition, regarding the medical negligence of practitioner, who are not competent to practice allopathic medicine. Again, she would draw the attention of this Court to a Judgment of this Court made in Dr.K.Abdul Muneer and others Vs. The State of Tamil Nadu and others reported in 2010 (4) CTC 88 in support of his argument. Therefore, she would request the Court that the practitioners who are not having any qualification in practising allopathic medicine and they cannot be permitted to do such practice merely on practical experience. The request of the petitioner that he has got right for the practice cannot be sustained and the offences committed by them are liable to be proceeded further. However, , suitable orders may be passed in the facts and circumstances of the case. 6. However, the learned Government Advocate (Crl. Side) would submit in her argument that the petitioner, who is a member of the Private Medical Practitioner's Association, filed a Writ Petition before this Court and an interim injunction has been granted in his favour and the said injunction is only not to disturb his profession and if medical negligence took place, certainly the respondents are entitled to proceed in accordance with law and to enquire into the matter. 7. I have given anxious consideration to the arguments advanced on all the side. 8. It is an admitted fact that the petitioner is not having any qualification to practice allopathic medicine. However, he is one of the members of the said Association, namely, Private Medical Practitioner's Association and the said Association has filed a Writ Petition in W.P.(MD). No. 9691 of 2006 and had obtained an order of injunction against both the State and the Central Government as well as the respondent police, not to interfere with the practice of the petitioners' Association and also from https://hcservices.ecourts.gov.in/hcservices/ 3 enforcing the penal provisions of the Indian Medical Council Act, 1956 and the Drugs and Cosmetics Act 1940, against the private medical practitioner's Association in the State of Tamil Nadu, pending the said Writ Petition. 9.In the said circumstances, the petitioner cannot be proceeded with the penal provisions as contained in the said Acts. However, the Judgements of the Hon'ble Apex Court in Rajasthan Pradesh Vs. S.Sardarshahar and another reported in (2010) 6 MLJ 82 (SC) and also in Poonam Verma Vs. Ashwin Patel and others reported in (1996) 4 SCC 332, would lay down the principles that any person, who is not possessing either the requisite qualification or enrolment under the Act in State Medical Register, he cannot practice the Allopathic medicine in the State. However, the enforcement of penal provisions of both the Acts, namely, the Indian Medical Council Act, 1956 and the Drugs and Cosmetics Act 1940, have been stayed against the petitioner till the disposal of the Writ Petition. But, the police had registered a complaint under the provisions of Indian Medical Council Act, 1956, coupled with 420 I.P.C., which has been prohibited by the order passed by this Court in W.P.(MD) No.9691 of 2006. The registration of the complaint is only on 04.03.2011, which is during the existence of the said prohibition as ordered in the writ petition. Therefore, the registration of the complaint itself is against the tenor order passed by this Court and the said case cannot be sustained in law. Therefore, I have no hesitation to quash the said case. 10.Accordingly, this criminal original petition is allowed and the charge sheet pending in C.C.No.527 of 2010 on the file of the Judicial Magistrate No.1, Karur is hereby quashed. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (Crl.side) /True copy/ Sub Assistant Registrar(C.S) To 1.The Inspector of Police, Karur Town Police Station, Karur District, Karur . 2.The Judicial Magistrate No.1, Karur. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1. CC to Mr.S.Gokularaj, Advocate, SR.No. 41988 arul ORDER MADE IN CRL.O.P.(MD).No.15385 of 2011 29.11.2011 TR : 16.12.2011: 3p/5c https://hcservices.ecourts.gov.in/hcservices/