IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRL.P. NO.4398/2016 BETWEEN DR G H CHANNABASAPPA AGED ABOUT 62 YEARS, R/O GOOD LUCK CIRCLE, GADIKOPPA, SHIMOGA-577 201 ...PETITIONER (BY SRI PRASAD B S, ADV.) AND 1 . STATE OF KARNATAKA THIRTHAHALLI POLICE STATION, SHIMOGA DISTRICT, REPRESENTED BY ITS INSPECTOR 2 . K KRISHNARAO S/O CHANDRAPPA, AGED ABOUT 49 YEARS, OCC:HEALTH OFFICER, SHIMOGA R/O HEALTH AND FAMILY WELFARE OFFICE, SHIMOGA-577 201.
RESPONDENTS (BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R1, R2 – SERVED & UNREPRESENTED.) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AS AGAINST THE PETR. PENDING ON THE FILE OF PRL. C.J. AND J.M.F.C., THIRTHAHALLI IN C.C.NO.234/2015, ONLY IN SO FAR AS THE PETR. IS CONCERNED.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and the learned Addl. S.P.P.
2. The Petitioner is before this court praying to quash the entire proceedings in C.C. No.234/2015 in so far as it relates to the petitioner alone.
3. On 22.06.2013 one K. Krishna Rao on behalf of the District Health and Family Welfare Officer, Shimogga lodged a complaint against the accused No.1 for violations of the provisions of The Karnataka Private Medical Establishment Act, 2007 (for short ‘KPME Act’). In the complaint, it was stated that the accused No.1 is carrying on the Medical Practice and treating patients in his establishment without having necessary qualifications and also disbursing medicines which are not approved by the competent authority and that accused No.1 thereby has cheated and defrauded the public. Despite the mandate of the KPME Act, the accused No.1 had obtained a fake certificate and was carrying on his practice on the strength of a fake registration certificate.
4. That the respondent police registered a complaint as Crime No.0179/2013 and took up investigation. During the course of investigation, the certificate of registration issued by the competent authority was forwarded to the District Health Office. That the District Health Officer by order dated 15.07.2013 reiterated the fact that the accused No.1 does not possess the requisite qualification to carry on the medical practice and treat patients and that the graduation certificate possessed by the accused No.1 is a fake one and is issued by a spurious university and that the accused No.1 is not in any manner qualified to carry on his business as a medical practitioner, while so reiterating the fact alleged under the complaint the District Health Officer continued further as stated hereunder:-
“ªÀÀÀÀÄvÀÀÀÀÄÛÛÛÛ £ÀÀÀÀªÀÀÀÀÄä E¯ÁSÉÉÉÉAiÀÀÀÀÄ C¢PüüPüüPÁjUÀÀÀÀ¼ÀÀÀÀ PÀÀÀÀvÀÀÀÀðªÀÀÀÀå ¯ÉÉÉÉÆÃ¥ÀÀÀÀ¢AzÁV F ¥ÀÀÀÀæªÀÀÀÀiÁt ¥ÀÀÀÀvÀÀÀÀæªÀÀÀÀÅ C£ÀÀÀÀºÀÀÀÀð £ÀÀÀÀPÀÀÀÀ° ¤¤¤¤ÃÃÃÃqqqqÀÀÀÀ¯¯¯¯ÁÁÁÁVVVVzzzzÉÉÉÉ ””””
ªªªªÉÉÉÉÊÊÊÊzzzzÀÀÀÀååå夤¤¤UUUUÉÉÉÉ That is on account of lack of diligence/negligence on the part of officials of District Health & Family Welfare Office, the certificate of registration came to be issued.
5. On the basis of this statement, the respondent police have deemed it fit to array the instant petitioner as accused and have sent him up for trial under the charge sheet dated 29.03.2014. The petitioner has been arrayed as accused No.2. The charge sheet is also produced before the court. In this background the petitioner is before this court praying for quashing of the case registered as C.C. No.234/2015 in so far as it relates to the petitioner.
6. Learned counsel for the petitioner would invite the attention of the court to the provisions of the KPME Act and would invite the attention of the court to the provisions of Section 3, 4, 5 and 6. He would contend that it is no doubt mandatory for an establishment to register itself under the Act in terms of Section 3 of the Act of 2007 and taking this court to Section 4 would contend that the registration authority is a Committee consisting of the Deputy Commissioner of the District who shall be the Chairman, the District Health and Family Welfare Officer and the President and Secretary of the Indian Medical Association of the concerned district are the other members. That the procedure prior to registration as mandated under the Act is a local inspection under Section 8 which reads as under:-
“8. Local Inspection Committee :- (1) The Registration Authority of each district may constitute one or more Local Inspection Committee for each district consisting of such persons as it may specify for the purposes specified in sub- sections (1) of section 7 and sub-section (2) of this section.
(2) The Local Inspection Committee, either with prior intimation or on receiving a complaint, may at reasonable time, inspect, a Private Medical Establishment to satisfy itself that the provisions of this Act and the rules made thereunder and the conditions of registration are being duly observed.
(3) If any defects or deficiencies are noticed during inspection, the Local Inspection Committee shall report to the Registration Authority which may direct the Manager of the Private Medical Establishment to remedy the same within such reasonable time as may be specified in the order. Thereupon the Manager shall comply with every such direction and report the compliance to the Registration Authority within the time so specified.
(4) The Manager of the Private Medical Establishment shall provide all reasonable facilities for such inspection.”
7. He would contend that neither the provisions of Section 3, 4, 5, 6, 7 or 8 cast any duty upon the petitioner to verify the genuineness of the certificates that are produced along with the application by the practitioner desiring to register himself under the Act. He would further invite the attention of the court to the certificate issued under Section 7 and point out that the petitioner is not the lone signatory to the certificate and that the Deputy Commissioner of the District and the President of the local unit of the Indian Medical Association are also signatories along with the petitioner and that the Deputy Commissioner is the Chairman of the Committee and the petitioner as the then District Health Officer, District Health Officer merely officiated as the Member Secretary of the Committee. That the decision arrived at is pursuant to consensus and that arraying the petitioner as an accused merely on the statement of the subsequent occupant of the office that the certificate has been issued on account of negligence of the officials of the department is wholly unsustainable.
8. He would contend that even if the statement of the Officer who is shown as eye witness in column No.14 the same would not demonstrate any criminality on the part of the petitioner. That though the petitioner along with the accused No.1 has been charge sheeted under Section 417, 419, 420 and 465 of IPC none of the ingredients which constitute the offence under Section 417, 419, 420 and 465 of IPC has been leveled against the petitioner and he would contend that even if the statements of witnesses more specially that of the eye witness Sri. S.N. Shivaram Raddy the subsequent occupant of the office is taken at a face value, it no where alleges a fact which could be inferred as an ingredient which constitutes an offence as alleged. He would, elaborating further, submit that the allegations of fraud and cheating are leveled against accused No.1 only and the only allegation against the instant petitioner is that there has been a failure in the performance of duties. He would contend that mere failure or any lapse in the performance of the duty would not tantamount to commission of a criminal act unless and until an element of criminality can be attached. The allegations as contained in the charge sheet no where attribute any motive or any negligence to him. That no act is attributed to him, criminal that would have required the petitioner to stand trial to demonstrate his innocence. He would submit that reading of the charge sheet does not in any manner reveal any allegation which could be considered as constituting an offence as alleged against the petitioner.
9. Per contra the learned Addl. S.P.P. would fairly submit that under the scheme of the Act the onus of registration and granting the certificate of registration is in the domain of the Committee headed by the Deputy Commissioner and that the petitioner in his capacity as the then District Health Officer acts and facilitates the functioning of the Committee and that the Act of granting registration or rejecting the appeal is not in the sole domain of the petitioner.
10. Having heard the learned counsel and having adverted to the various facts and having perused the charge sheet and the statement of eye witnesses it is obvious that apart from allegations of lapse of duty, no motive or the commission of any criminal act are leveled against the petitioner. The allegations of lapse of duty at the most would have been a ground for initiating disciplinary enquiry. The allegations even if taken as a whole and as correct, no where demonstrates the commission of offences punishable under Section 417, 419, 420 and 465 of IPC. The only allegation being lapse in the performance of duty the same could not have been a ground to call upon the petitioner to stand trial to prove his innocence. It is also relevant to note that even in the statement of the subsequent occupant of the District Health Officer the petitioner has not been identified by name. On a reading of the statement it can be deduced that the statement is a general statement and no single individual has been named by the witness and the plurality of the language used by the witness does not in any manner indicate any individual. If that be the case, it is not understandable as to how the petitioner has been roped in as an accused and sent up for trial. As rightly contended by the petitioner, a perusal of the provisions of the enactment does not in any manner cast any duty on the petitioner to verify the antecedents of the applicant or the genuineness or authenticity of the certificates that may be enclosed along with the application. The task of considering the application and approving it is the task of the committee and is not in the exclusive domain of the petitioner. Further as rightly contended by the learned counsel for the petitioner, none of the allegations can be described as ingredients that constitute the offences punishable under Section 417, 419, 420 and 465 of IPC. In that view of the matter, this court is of the considered opinion that no purpose would be served by calling upon the petitioner to undergo a full fledged trial to demonstrate his innocence.
Accordingly, the petition is allowed, the proceedings in C.C. No.234/2015 on the file of the Principal Civil Judge and JMFC, Tirthahalli is quashed in far as it relates to the petitioner.
Chs* CT-HR Sd/- JUDGE