Amitbhai J. Panchal and Others vs Mahendrabhai Shankarbhai Patel and Others

Jayant Patel, J.—In all the matters, as common question arise for consideration, they are being considered by this common order.

The short facts of the case appears to be that the complaints have been filed by the original complainant - respondent No. 1 in the concerned matters being representative of North Gujarat Pathologist Association in the concerned Court of the Judicial Magistrate for the offence punishable u/s 30 and 33 of the Gujarat Medical Practitioner Act and for the offence punishable under Sections 465, 468 and 420 of IPC. The accusation made in the complaint is that the accused in the complaint are running pathological laboratories without holding requisite qualification and, therefore, the offence u/s 30 read with Section 33 of the Gujarat Medical Practitioner Act has been committed. The additional allegation in the complaint is that merely because the accused are holding certain qualification for laboratories technicians, the same is not sufficient to run pathological laboratory/centre and, therefore, the damage is being caused professionally to the complainant and the members of the association of the complainant and is also cheating the patients and the public at large and, therefore, the offences are committed under Sections 465, 468 and 420 of IPC. It appears that the learned Magistrate directed for investigation of the complaint u/s 156(3) of Cr.P.C. Under these circumstances, the present petitions for quashing of the complaints concerned in the respect petitions.

Heard Mr. B.P. Tanna, learned Counsel appearing with Mr. Bhatt, learned Counsel for the petitioners, Mr. Saiyed, learned Counsel for original complainant and Mr. K.P. Raval, learned APP for the respondent State and Police Officers.

None of the complaints has been filed by any patient or any person, who was made to believe that the accused were holding necessary qualification for running pathological laboratories, which has led the patient or the person concerned to engage him for getting services of the pathological laboratories, nor there is any allegation in the complaints that any patient or the person was issued a certificate of pathologist, which was signed by any of the pathologists. Mere allegation of adverse effect on the profession of the doctors, who are holding the degree of pathologists or original complainant association would not be sufficient to attract the provisions of Sections 465, 468 and 420 of IPC. Since the complaint is not filed by or on behalf of any person, who has been cheated, nor there is any allegation in the complaint that the Centre or any pathologist is not genuine when a certificate issued by such pathological laboratory, it can be said that the allegation in the complaint, if considered as it is, would not constitute the commission of offence under Sections 465, 468 and 420 of IPC. Therefore, the complaint to that extent deserves to be quashed and consequently the investigation so ordered by the learned Magistrate qua that part of the complaint also would not survive, if the complaint to that extent is quashed.

However, so far as the accusation made in the complaint for running of the pathological laboratories by the accused for the offence under Sections 30 and 33 of the Gujarat Medical Practitioner Act is concerned, the learned Counsel appearing for the original complainant relied upon the decision of the Apex Court in the case of Medical Council of India and another Vs. State of Rajasthan and another, and another decision in the case of Dr. Mukhtiar Chand and Others Vs. The State of Punjab and Others, and also the decision of High Court of Madhya Pradesh in the case of Smt. Kamla Patel Vs. State of M.P. and Others, and the interim order dated 28.4.2004 passed by the High Court of Allahabad in Civil Misc. Contempt Petition No. 820 of 2002 in the case of Rajesh Kumar Shivastav v. Shri A.P. Verma and Ors., and it was contended that in all the matters, the observations were made to the effect that if one is to run an independent pathological laboratory, it has to be in the supervision of doctor having degree of M.D. Pathology and mere degree of laboratory technician, who is not registered under the provisions of Gujarat Medical Practitioner Act is not sufficient. It was submitted that the directions were also issued by the other High Court in the respective States for verification of the said aspects and the consequential orders and, therefore, when the matter is at the stage of investigation by the police u/s 156(3) of Cr.P.C., this Court may not exercise the power for quashing of the complaint u/s 482 of Cr.P.C., and at that stage qua the allegation, offence u/s 30 read with Section 33 of the Gujarat Medical Practitioner Act.

Whereas the learned Counsel appearing for the petitioners, contended that the petitioner-accused are not practising any medicines and they are only conveying the laboratory analytical reports to the person, who takes their services. In the submission of the applicants, such would not constitute offence under Sections 30 or 33 of the Gujarat Medical Practitioner Act, since no opinion is given by them for any medicines or on the results of the machines. Therefore, it was submitted that this Court may quash the complaint, even for the alleged offence under Sections 30 and 33 of the Gujarat Medical Practitioner Act.

It appears that whether the accused are giving opinion about the analytical report of the machines or not and whether the accused are running analytical centre or pathological laboratory or not is an essential aspects, which may be required to be investigated. Further, if the accused are running pathological laboratories independently where there is supervision of a doctor having qualification of M.D. Pathology or not will also be an aspect to be examined in the investigation. It is only after the investigation, the matter can be concluded as to whether the offence u/s 30 or Section 33 of Gujarat Medical Practitioner Act prima facie is committed or not. Under these circumstances, I find that it would not be a case for exercise of the power to quash the complaint at this stage for the alleged offence u/s 30 and 33 of the Gujarat Medical Practitioner Act.

In view of the above, the complaint is quashed in part for the alleged offence punishable under Sections 465, 468 and 420 of IPC, but the prayer for quashing of the complaint for the alleged offence punishable under Sections 30 and 33 of the Gujarat Medical Practitioner Act is not granted.

The petitions are partly allowed to the aforesaid extent. Rule made absolute to the aforesaid extent only. The present order shall not operate as a bar to the complainant for withdrawal of the complaint, if he is so desirous after undergoing the process in accordance with law.