IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14028 of 2009 DR.MD.ATIQUE NADDAF, SON OF LATE MD. SUBHAN NADDAF, RESIDENT OF VILLAGE MEHSAUL TOLE HUSAINA, HOSPITAL ROAD, P.S. SITAMARHI, DISTRICT SITAMARHI. ----- PETITIONER Versus THE STATE OF BIHAR ----- OPPOSITE PARTY with Cr.Misc. No.14027 of 2009 DR.MUMTAZ AHMAD, SON OF LATE MOHIUDDIN ANSARI, RESIDENT OF VILLAGE RAJOPATTI, P.S. RAJOPATTI, DISTRICT SITAMARHI. ----- PETITIONER Versus THE STATE OF BIHAR ----- OPPOSITE PARTY For the petitioners :- Mr. Sudhir Singh, Advocate Mr. Raghawa Nand, Advocate For the respondent :- Dr. Maya Nand Jha, A.P.P. ----------- 4 22.12.2009 A Public Interest Litigation was filed numbered as CWJC No. 14395 of 2004 wherein the petitioner had made a grievance that the State Government specifically the Civil Surgeons are not taking action against the quack doctors who have no requisite qualifications. On 25.11.2004 a Division Bench of this Court passed the following orders: “All Civil Surgeons are directed to comply with the direction issued by the State Government and submit a report within two months about such quack doctors who have no requisite qualifications and training and who are menace to the society. Let a copy of this order be also sent to the Secretary, Department of Health, who is directed to see that after submission of the report appropriate action is taken against such quack doctors.” In pursuance of the aforesaid order of this Court, the Commission-cum-Secretary, Health Department issued letter no. 4 dated 7.12.2004 to all the Civil Surgeons stating therein that in pursuance of the order passed in CWJC No. 14395 of 2004 “all Civil Surgeons are directed to comply with the direction issued by the State Government and submit a report within two months 2 about such quack doctors who have no requisite qualifications and training and who are menace to the society. The Secretary to the Department of Health was directed to see that after submission of the report appropriate action is taken against such quack doctors.” On 18th of February, 2005, the Commissioner-cum-Secretary, Health Department issued another letter to the Civil Surgeons- cum-Chief Medical Officers in the State of Bihar stating that action should be taken in pursuance of the order passed in the writ application aforesaid, under Section 15(2)(b) of the Indian Medical Council Act, 1956 (hereinafter referred to as the „Act‟) and under Section 15(3) of the said Act which prescribes the punishment for the contravention of Section 15(2)(b) of the Act. As a result of the aforesaid directions, the Civil Surgeons-cum-Chief Medical Officers began to conduct raids without clarifying the facts or considering whether the persons against whom action was sought to be taken were liable to be booked under the „Act‟. The petitioners Dr. Md. Atique Naddaf and Dr. Mumtaz Ahmad were made accused in Sitamarhi P.S. Case No. 26/2009 and Sitamarhi P.S. Case No. 33/2009 respectively under Sections 420/120B of the Indian Penal Code and under Sections 15(2)(b), 15(3) of the Act. The allegations against these two petitioners are the same. It is alleged that they were practicing medicine in contravention to Section 15(2)(b) and 15(3) of the „Act‟. 3 The petitioners have filed this application for quashing the First Information Report on the ground that no offence whatsoever is made out against the petitioners. Both the petitioners claim that they are qualified doctors and have done their Bachelor of Ayurvedic Medicine and Surgery Course (B.A.M.S.) in the year 1983 and are also registered under the Bihar Development of Ayurvedic and Unani System Medical Act, 1951 as physicians and also as surgeons. The certificates and the registration certificates have been annexed to the application. The petitioners also have referred to the notification of the Government of India issued through the Central Council of Indian Medicine dated 30.10.1996 which notification reads as follows: “As per provision under section 2(1) of the Indian Medicine central council act 1970 (48 of 1970) here by central council of Indian medicine notifies that “Institutionally qualified practioners of Indian system’s of medicine (Ayurved Siddha & Unani) are eligible to practice Indian systems of medicine & modern medicine including surgery Gynacology & Obstetics based on their training & teaching which are including in the syllabi of vaicaurses of I.S.M. prescribed by central council of Indian Medicine after approval of Government of the India. The meaning of the word “Modern Medicine” (Advances) means advance made in various branches of modern scientific Medicine, clinical, Non clinical bio sciences also technological innovations made from time to time & notify that the courses & curriculum and recognized by the central council of Indian medicine are supplemented with such modern advances. Further it is clarified that the rights of practitioners of Indian systems of medicine to practice modern scientific system of medicine (Allopathic Medicine) are protected under section 17(3)(b) of Indian medicine central council Act, 1970.” 4 The contention of the petitioners is that they are qualified and registered doctors practicing under the Ayurvedic & Unani medical systems and are duly registered and are protected under the Indian Medical Act itself and as such the allegation that they are quacks or do not have the requisite qualifications to practice medicine is unfounded. A counter affidavit has been filed on behalf of the State relying on a decision in the case of Mukhtiar Chand & Ors Vs. The State of Punjab delivered on 18.10.1998. The objection raised by the counsel for the State is that the seizure discloses that the petitioners had stored allopathic medicine in his shop. Counsel for the petitioner on the other hand submits that the allopathic medicine seized, was in fact were duly purchased as the petitioners had licence not only as physicians but also as surgeons. The seizure list discloses that the petitioners had medicines such as Xylocaine 2% which is used ordinary while conducting minor surface operation and a surgical blade, some injections, Iodine and Anesthetic ether. Not to say that the seizure list discloses that large quantity of the medicines were found at the clinics of these two petitioners. In fact one of the petitioners had only three items of medicines namely Iodine solution, surgical gloves, spans holder, needle holder. The F.I.R. and the seizure list do not indicate that the petitioners were maintaining an infra-structure for conducting surgical operations. On perusal of the record it appears that the direction 5 of the High Court in the Public Interest Litigation being CWJC No. 14395 of 2004 was for those doctors who are quacks and should be stopped from practicing medicine. The petitioners are obviously not quacks. They are qualified doctors practicing in the field of Ayurvedic and Unani Medicines. The registration of these petitioners is not in dispute and affidavits have been filed by the petitioners before the authority to show that they have been duly registered under the Bihar Development of Ayurvedic and Unani System Medical Act, 1951 as physicians and surgeons. It is submitted that offences under Section 420/120B of the Indian Penal code are not made out against the petitioners. Section 415 of the Indian Penal Code defined cheating. In common parlance a cheat is a person who deceives or acts fraudulently or unfairly. In Black‟s Dictionery cheating has been defined as an act by which a person fraudulently obtaining another‟s property by means of a false symbol or token, or by other illegal practices, whereas fraud is „A knowing misrepresentations of the truth or concealment of a material fact to induce another to act to his or her detriment.‟ The requirement is that there must be a fraudulent or dishonest inducement of a person by deceiving him. One of the essential ingredients of cheating is the element of deceit. The deception may be by an act or by conduct and it would depend upon the facts and circumstances as to how a person practices deceit in a particular case. In the present case although the petitioners were qualified 6 doctors practicing in a particular system of medicine and as such element of deceit is not present. It is no body‟s case that they misrepresented themselves to be doctors having a M.B.B.S. degree, rather, the prosecution case is based on a presumption that because the petitioners had stored certain medicines, they were cheating the public at large and administering medicines which they were not entitled to use. It may further be noted that it is nobody‟s case nor it the petitioners claim that they were performing full fledged surgery or operations in their clinic rather they were performing small operations as such removal of surface cyst which were entitled to do under the Bihar Development of Ayurvedic & Unani System Medical Act, 1951. The term surgeon has been defined under Section 2(P) of the Development of Ayurvedic and Unani System Act. Surgeons means a Vaidyas or Hakim who holds diploma of surgery from an institution affiliated to or recognized by the faculty. Section 2(Q) states vaidyas means a practitioner of Ayurvedic system of medicine. It is not the prosecution case that the petitioners were not qualified under the Ayurvedic & Unani System of Medicine Act rather the prosecution is based on the fact that some medicines which are utilized by general practitioners and surgeons were found in the clinic of these two petitioners. It is also not the case that a full fledged surgical room or unit was running in the clinic of these two petitioners and as such it would be a misinterpretation of the order of this Court if it were to be 7 held that the petitioners were quacks or practicing medicine by deceiving the general people and the society. In fact there is no complaint by anyone regarding the conduct of the petitioners. In the facts aforesaid therefore, I find that no offence is made out under Section 420 of the Indian Penal Code. With respect to the allegation that petitioners are prima facie guilty of Section 15(2)(B) of the Indian Medical Council Act, it is submitted that in fact there is nothing to indicate that the petitioners were practicing modern medicine. There is no complaint against the petitioners and the seizure list in itself does not indicate that they were practicing in the system of modern science although they were not registered in the State or Central register to practice modern system of medicines. Specially in view of the fact that both the petitioners had filed an affidavit before the Civil Surgeon-cum-Chief Medical Officer that they were duly registered practitioners under the Ayurvedic and Unani system. In the facts of this case, the Court finds that prima facie no offence is made out against the petitioners under Section 420 of the Indian Penal Code and under Section 15(2)(b) of the Indian Medical Council Act. In the result Sitamarhi P.S. Case No. 33/2009 and Sitamarhi P.S. Case No. 26/2009 are quashed. This application is allowed. Sanjay (Sheema Ali Khan, J.)