1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.11.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.O.P.(MD).No.15091 of 2011 M.Vijayakumar : Petitioner Vs. The State rep. by The Inspector of Police, Ayakudi Police Station, Dindigul District. : Respondent PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure to direct the respondent or his men or agents not to harass this petitioner till disposal of W.P.No.9691 of 2006 and without due process of law. For Petitioner : Mr.T.Lenin Kumar For Respondent : Mrs.S.Prabha, Government Advocate (Crl.Side) O R D E R This petition has been filed to direct the respondent or his men or agents not to harass this petitioner till disposal of W.P.No.9691 of 2006 and without due process of law. 2. Heard Mr.T.Lenin KUmar, learned counsel appearing for the petitioner and Mrs.S.Prabha, 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 private medical practitioner, who is doing allopathic medicine practice by experience and he is the members of the Private Medical Practitioner's Association and even though, the petitioner is not qualified medical practitioners, his practice has been regularised and he has been permitted to do practice, if he has got 10 years of practical experience and such practitioners would alone be the members of the said Association. He would also submit in his argument that as per the direction of the Central Government, in order to regularise the practice of un-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 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 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 https://hcservices.ecourts.gov.in/hcservices/ 2 the members of the Private Medical Practitioner's Association and therefore, the practice of the petitioner in allopathic medicine even though he has not qualified be protected by the order passed by this Hon'ble Court and therefore, the respondent police under the guise of prohibiting the quacks are tending to harass the petitioner. Therefore, they have to be prohibited from harassing the petitioner except under due process of law. 4. 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 at the face of it, is not legal and the ultimate sufferer would be the public, who are caught in the hands of the un-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 a practitioners, who are not competent to practice allopathic medicine. Again, she would draw the attention of this Court to the Judgement 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, he 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 therefore, suitable orders may be passed in the facts and circumstances of the case. 5. 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 not to disturb his profession and if there is any medical negligence taken place, certainly the respondents are entitled to proceed in accordance with law and to enquire into the matter. 6. I have given anxious consideration to the arguments advanced on all the side. 7. 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 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. https://hcservices.ecourts.gov.in/hcservices/ 3 8. In the said circumstances, the petitioner cannot be proceeded with the penal provision as stated 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. Therefore, there is no dispute that any person, who is under a tortuous liability is liable to be proceeded in accordance with law. 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. Therefore, the petitioner can be proceeded in respect of other liabilities except under the said two Acts since injuncted by this Court. However, the respondents are not absolutely prohibited from proceeding against the unqualified Doctors, who are the members of the Private Medical Practitioner's Association, for other tortuous liabilities and medical negligence in their profession and under various other provisions of the other enactments pointed out in the judgements cited above. 9. Accordingly, this petition is disposed of with a direction to the respondents not harass the petitioner in future under the guise of any enquiry in respect of any case filed under the penal provisions of Indian Medical Council Act, 1956 and the Drugs and Cosmetics Act 1940 and there shall be no harassment to the petitioner on the side of the respondent police since they are under the obligation to follow the principles laid down by the Hon'ble Apex Court in D.K.Basu Vs. State of West Bengal reported in AIR (1997) SC 610. Sd/- Assistant Registrar (AE) /True Copy/ Sub Assistant Registrar(CS) To 1.The Inspector of Police, Ayakudi Police Station, Dindigul District. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Vsm GH : 30.11.2011 : 3p/3c ORDER MADE IN CRL.O.P.(MD).No.15091 of 2011 22.11.2011 https://hcservices.ecourts.gov.in/hcservices/