Dr. Kaisar Ahmad vs State and Others

Syed Bashir-Ud-Din, J.—Admit.

The counsel for the parties while taking notice at the post admission stage in these proceedings submit that the parties may be deemed not

desirous to take further steps to supplement the pleadings on record and matter may be taken up for final disposal. This matter, on consensual

submissions of the counsel for the parties, is accordingly taken up for final disposal.

Heard.

Petitioner an Assistant Professor in Paediatrics in Government Medical College, Srinagar and also posted in Government Hospital for Children

Srinagar, has been booked in FIR 81/96 registered at Police Station VOK Srinagar for offences u/s 5(2) of Jammu and Kashmir Prevention of

Corruption Act, (hereafter for short 'PCA'), and Section 15 of the Jammu and Kashmir Public Men and Public Servants Declaration of Assets and

other Provisions Act, 1983 (hereinafter Act of 1983) on allegation of indulgence in private practice during office hours in private clinics for illegal

pecuniary considerations. By the alleged fraudulent and illegal medical private practice during office hours he has abused his position as public

servant, thereby opened himself to charge of criminal misconduct. He is also booked in the FIR for amassing huge assets disproportionate to his

known sources of income.

The writ petitioner is seeking quashment of FIR, investigating proceedings and accord of sanction by Government vide Order dated 7-12-1998.

The learned counsel for the petitioner submits that the launching of criminal proceedings and investigations of FIR is liable to be quashed on the

ground that no offence u/s 5(2) of PCA is made out and the offence u/s 13/15 of the Act of 1983, if at all made out, apart from being dealt with

departmentally, is covered by Section 168, RPC, a non-cognizable offence for which the VOK cannot launch investigations. As ex facie no case is

made out, therefore, impleading accused in the criminal case is ab initio without jurisdiction and void. Non-practising allowance (forbidden to be

drawn in case of private practice) has been drawn without knowledge of the accused and even if the allowance is drawn to his knowledge then the

matter comes within the J. and K. Government Doctors (Relaxation of Restrictions on Private Practice) Rules of 1987 made penal u/s 15 of the

Act of 1983.

The counsel for respondents submit that on the wide spread complaint that some of the doctors were attending private clinics during the office

hours while pretending to be in their hospital or office during such hours and are earning monetary benefits by attending these clinics for medical

advice/treatment. They also advise the patients as such Govt. doctors in Govt. hospitals to attend the private clinics and are charging huge amounts

illegally and have accumulated huge assets disproportionate to their known sources of income. On enquiry made, it was found that the writ

petitioner though in the employment of the State Government as member of Medical Education Gazetted Service and the Government Doctor did

indulge in private Medical practice during office hours by abuse of his position, as such public servant. His clinic was raided on 31-10-1997 at

3.30 p.m. It was found that he was doing private Medical Practice charging Rs. 40/- as fee per patient and had collected by that time Rs. 920/-

which amount was recovered from his attendant namely Gh. Mohd. Sheikh at the clinic. About Rs. 46,880/- as non-practising allowance from

10/90 to 11/97, is drawn by him illegally. Payment of this allowance was stopped to him only in December, 1997 after being booked in this case.

The counsel further canvasses that in view of the violation, of SRO 196 of 1995 and SRO 42 of 1987 relaxing restrictions on private practice on

prescribed conditions/imposing ban on private practice, petitioner Doctor has contravened provisions of Section 13 made penal u/s 15 of the Act

of 1983 and Section 168 of RPC, besides committing criminal misconduct punished by Section 5(2) of P.C. Act. The corrupt practice on the part

of the accused doctor is misconduct covered both by PCA and Act of 1983.

The admitted position in this case is that the Government received information of wide spread practice in private clinics during office hours

advising patients even in Govt. hospitals for medical advice in such clinics and violating the provisions of the Act of 1983 read with J. and K. Govt.

Doctors (Relaxation of Restrictions on Private Practice) Rules, 1987 (as subsequently rescinded and restored after 1995) thereby, committing

misconduct and contravening the express provisions of law including the P.C. Act and Act of 1983. Above incriminating allegation/information was

also received against the petitioner Doctor. VOK registered FIR 81/97 on 31-10-97. The Vigilance team on spot found the accused-petitioner

practising on 31-10-97 at 3.30 p.m. at his private clinic. It also found that in all Rs. 920/- had been collected by the Doctor as consultation fee @

Rs. 40/- per patient. The doctor was also alleged to have received the non-practising allowance from 10/90 to 11/97, in violation of provisions of

Jammu and Kashmir Government Doctors (Relaxation of Restrictions on Private Practice) Rules, 1987, read with Section 13/15 of the Act of

1983. The petitioner by above alleged illegal means and abuse of his official position as such doctor/Public Servant obtained pecuniary advantage

for himself and thereby indulged in corrupt practice and the criminal misconduct on his part is punishable u/s 5(2) of the P.C. Act. The accused in

terms of the FIR is also investigated for having accumulated assets disproportionate to his known sources of income. Both the parties agreed that

the investigation has been completed. From the evidence both documentary and parol and other facts and circumstances against

petitioner/accused, final report u/s 5(2) of P.C. Act 2006 read with Section 13/15 of Act of 1983 is produced in Special Judge, Anti-Corruption,

Srinagar. The Government has accorded sanction to the prosecution of the accused u/s 6 of the P.C. Act. for commission of the aforesaid

offences.

High Court has undoubtedly powers to quash criminal proceedings in exercise of powers under Articles 226 and 227 of the Indian Constitution

(Corresponding to Sections 103 and 104 of the Constitution of J. and K.) or Section 561-A, Cr. P.C. (Pari materia with Section 482 of Indian

Cr. P. C). The nomenclature under which the petition is filed, is immaterial. The powers of the High Court are independent of the powers of

discharge by the Court at the stage of framing charges or existence of remedy of appeal or revision under the Code. However, as observed in

State of Haryana and others Vs. Ch. Bhajan Lal and others, , the very nature and vastness of powers imposes a demanding restriction on exercise

of the powers. The Apex Court in above case observed at Page 552; of Cri LJ:--

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon the enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer any

arbitrary jurisdiction on the Court to act according to its whim or caprice....

The investigations into an offence is statutory function and duty of the police and superintendence thereof is vested in the State Government. High

Court has to be cautious and reluctant to interfere with the statutory role of the Police to investigate a cognisable offence except in exceptional

cases. One of such exceptions is when offence is not made out, ex facie or investigations is abuse of process of law. But all the same consideration

of the matter on merits, in the guise of fitting in prima facie evidence to stand accused for trial would amount to pre-trial of the accused under

Articles 226 and 227 of the Constitution of India, even before the competent Court acts in the matter. The observations of the Supreme Court in

State of Bihar and Another Vs. P.P. Sharma, IAS and Another, are quoted below:--

. . This would show that an accused with a view to delay the trial, resorts to writ proceedings, raises several contentions including one on merit

as vehemently persisted by Sri Jain to consider this case on merits and have the proceedings kept pending. The result would be that the people

would lose faith in the efficacy of rule of law. Documents relied on by the respondents are subject to proof at the trial and relevancy. If proved to

be true and relevant then they may serve as a defence for the respondents at the trial. The State quite legitimately and in my view rightly did not

choose to file the counter-affidavit denying or contradicting the version of the respondents, in those documents. The commission of offence cannot

be decided on affidavit evidence. The High Court has taken short course ""in annihilating the still born prosecution"" by going into the merits on the

plea of proof of prima facie case and adverted to those facts and gave findings on merits. Grossest error of law has been committed by the High

Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226. ...

In this case, ex facie without real need to comment on merits of the case either way, petitioner doctor's practice during office hours on 31-10-

97 at his private clinic without previous permission of the prescribed authority and simultaneously withdrawing the non-practising allowance in

violation of J. and K. Govt. Doctors (Relaxation of Restrictions on Private Practice) Rules, 1987, is an offence covered by Section 15 of the Act

of 1983 read with the above Doctors Private Practice Rules. The private practice in this case without authority as provided by the Rules during

office hours within the course of the employment is an illegal act in breach of provisions of above law. The collection of consultation fee on private

clinic by private practice during office hours during the course of the employment as such Doctor in terms of the Act and Rules is to gain pecuniary

advantage by illegal means and abusing his position, as such, public servant. Similarly, drawing the non-practising allowance in breach of rules and

in non-compliance with the restrictions imposed on the private practice of the Doctors, is misconduct on the part of the accused doctor. All this ex

facie appears criminal misconduct penalised by Section 5(2) of the Prevention of Corruption Act 2006. Once so, registration of FIR and the

investigation by VOK cannot be said to be without jurisdiction. Here it is not a case of non-cognizable offence only being disclosed by material

placed on record. It is not even the case of impleadment of the accused in a case which is ab initio void. The competent authority has on

application of mind granted sanction to prosecute the accused u/s 6 of the Jammu and Kashmir Prevention of Corruption Act. It appears from

record that necessary documents and material was before the competent authority to grant sanction. The sanction has been accorded as per the

applicable Jammu and Kashmir Business Rules and the law on the subject. On culmination of investigations, final report u/s 173, Cr. P.C. is filed in

the Court of Special Judge Anti Corruption Srinagar. The challan is at pre-charge stage. The parties are to address the Court on the charge. The

trial Court is to address and consider all legal and factual issues which may arise in this case.

In result, the writ petition is dismissed. However, before parting, the following observation of the Supreme Court in State of M.P. v. Ram

Singh with two connected Criminal Appeals. State of Madhya Pradesh and Others Vs. Shri Ram Singh, is appropriate to be taken note of at Page

1403; of Cri LJ:--

Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to malignise (sic) the polity of the country leading to

disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. It. has also been

termed as royal thievery. The sociopolitical system exposed to such a dreaded communicable disease is likely to crumble under its own weight.

Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and

destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence-shaking of the socio-economic-political system

in an otherwise healthy, wealthy, effective and vibrating society.