Kanwarjit Singh Kakkar v. State Of Punjab(2011)

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Full Case Details

GYAN SUDHA MISRA, J.

These appeals by special leave had been filed against the
order dated 2.4.2009 passed by the High Court of Punjab and Haryana at Chandigarh
in two Criminal Miscellaneous Petitions Nos. M-15695/2007 and 23037-M of 2007
for quashing FIR No.13 dated 9.4.2003 which was registered for offences punishable
under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,
1988 and under Section 168 of the Indian Penal Code, at Police Station, Vigilance
Bureau, Ludhiana but were dismissed as the learned single Judge declined to quash
the proceedings against the appellants.

3. Relevant facts of the case under which the two cases were registered against the
   appellants disclose that the appellants are Medical Officers working with the State
   Government of Punjab against whom first information report was registered on the
   statement of informant/Raman Kumar alleging that he knew the appellants Dr.
   Rajinder Singh Chawla who was posted as Government Doctor at Dhanasu and Dr.
   Kanwarjit Singh Kakkar who also was serving as Government Doctor in Koom Kalan
   in District Ludhiana. It was alleged that both the doctors were doing private practice
   in the evening at Metro Road, Jamalpur and charged Rs.100/- in cash per patient as
   prescription fee. While Dr. Rajinder Singh Chawla checked the blood pressure of the
   patients Dr. Kanwarjit Singh issued prescription slips and medicines to the patients
   after checking them properly and charged Rs.100/- from each patient. The
   complainant Raman Kumar got medicines from the two doctors regarding his ailment
   and the doctor had charged Rs.100/- as professional fee from him. The informant
   further stated in his FIR that as per the government instructions, the government
   doctors are not supposed to charge any fee from the patients for checking them as the
   same was contrary to the government instructions. In view of this allegation, a raid
   was conducted at the premises of both these doctors and it was alleged that they could
   be nabbed doing private practice as they were trapped receiving Rs.100/- as
   consultation charges from the complainant. On the basis of this, the FIR was
   registered against the appellants under Section 13(1)(d) read with Section 13(2) of the
   Prevention of Corruption Act and under Section 168, IPC which has registered at
   Police Station Vigilance Bureau, Ludhiana.
4. As already stated, the appellants felt aggrieved with the case registered against
   them and hence filed two Criminal Miscellaneous Petitions for quashing FIR No.13
   dated April 9, 2003 before the High Court of Punjab and Haryana at Chandigarh
   wherein counsel for the appellants contended that no offence is made out from the
   allegations in the FIR even as it stands. Substantiating the arguments, it was submitted
   that neither any medical instrument was recovered nor any apparatus or blood
   pressure checking machine or even thermometer was recovered from the residence of
   the appellants. It was explained that the complainant had come to the house of Dr.
   Kanwarjit Singh Kakkar which was under renovation and requested for treatment. It
   was added that on humanitarian grounds, the appellant just scribbled down the
   prescription on a plain paper which does not even bear the signature of the appellant.
5. It was also contended by learned counsel for the appellants that there is no law
   prohibiting government doctor from doing any act on humanitarian ground and the
   appellants could be alleged to have indulged in private practice only if they have
   deviated from the rules laid down by the State Government in this regard. In the
   alternative, it was contended that even if there is a deviation from these rules
   prohibiting private practice by government doctors contrary to the government
   instructions, it could warrant initiation of departmental proceeding and the
   punishment under the Punjab Civil Services (Punishment and Appeal) Rules and not
   under IPC much less under the Prevention of Corruption Act.
6. The learned single Judge, however, was pleased to dismiss the Criminal
   Miscellaneous Applications refusing to quash the FIR relying on Rule 15 of the
   Punjab Civil Medical (State Service Class I) Rules, 1972. As per Rule 15 of the said
   Rules, the Government may by general or special order permit any member of the
   Service to engage in private service on such terms and conditions and subject to such
   restrictions and limitations as may be specified in the order provided that such
   practice does not in any way interfere with the discharge of his or their official duties.
   Rule 15 of the aforesaid Rules states as follows: “15. Private Practice: (1) The
   Government may, by general or special order, permit any member of the Service to
   engage in private practice on such terms and conditions and subject to such
   restrictions and limitations as may be specified in the order, provided that such
   practice does not in any way interfere with the discharge of his or their official duties.
   (2) Nothing contained herein shall be construed to limit or abridge the power of the
   Government at any time to withdraw such permission or to modify the terms on
   which it is granted without assigning any cause and without payment of
   compensation.”
7. The relevant question which requires determination in these appeals is whether a
   government doctor alleged to be doing practice can be booked within the ambit and
   purview of the Prevention of Corruption Act or under Indian Penal Code, or the same
   would amount to misconduct under the Punjab Civil Medical (State Service Class I)
   Rules, 1972 under Rule 15 which has been extracted above.
8. Learned counsel for the appellants submitted that the FIR was fit to be quashed as
   the case against the appellants who admittedly are government doctors could not have
   been registered under IPC or the Prevention of Corruption Act as Section 7 of the
   Prevention of Corruption Act explains corruption' as acceptance ordemand’ illegal
   gratification for doing any official act’. It was submitted that the demand/receipt of
   `fee’ while doing private practice is not an illegal gratification for official duties. It
   was further submitted that even Section 13(1)(d) of the Prevention of Corruption Act
   does not apply since the main ingredients of this Section are: (a) the accused must be
   a public servant at the time of the offence; (b) he must have used corrupt or illegal
   means and obtain for himself or for any other person any valuable or pecuniary
   advantage; or (c) he must have abused his position as a public servant and have
   obtained for himself and for any other person any valuable thing or pecuniary
   advantage; or (d) while holding such office he must have obtained for any other
   person any valuable thing or pecuniary advantage without any motive.
9. Learned counsel for the respondents however repelled the arguments advanced in
   support of the plea of the appellants and it was contended that the provisions of
   Prevention of Corruption Act clearly apply as the government doctors in the State of
   Punjab have been specifically prohibited to carry private practice under the
   departmental rules and as such the act of the appellants were illegal.
10. By way of a rejoinder, it was again submitted by the counsel for the appellants
    that it is the `departmental rules’ which bar private practice by a government doctor,
    hence action if any, is liable to be initiated/taken under the departmental rules which
    in the present case are the Punjab Civil Services (Punishment and Appeal) Rules.
    Rule 15 of the Punjab Civil Medical (State Service Class I) Rules, 1972 states that a
    government doctor may engage in practice with prior permission from the
    government.
11. On a critical analysis of the arguments advanced in the light of the definition of
    corruption' defined under the Prevention of Corruption Act in its Preamble and under Section 7 of the Act, it clearly emerges thatcorruption’ is acceptance or demand of
    illegal gratification for doing an official act. We find no difficulty in accepting the
    submission and endorsing the view that the demand/receipt of fee while doing private
    practice by itself cannot be held to be an illegal gratification as the same obviously is
    the amount charged towards professional remuneration. It would be preposterous in
    our view to hold that if a doctor charges fee for extending medical help and is doing
    that by way of his professional duty, the same would amount to illegal gratification as
    that would be even against the plain common sense. If however, for the sake of
    assumption, it were alleged that the doctor while doing private practice as
    Government doctor indulged in malpractice in any manner as for instance took money
    by way of illegal gratification for admitting the patients in the government hospital or
    any other offence of criminal nature like prescribing unnecessary surgery for the
    purpose of extracting money by way of professional fee and a host of other
    circumstances, the same obviously would be a clear case to be registered under the
    IPC as also under the Prevention of Corruption Act which is not the case in the instant
    matter. The FIR sought to be quashed, merely alleges that the appellants were
    indulging in private practice while holding the post of government doctor which
    restrained private practice, and charged professional fee after examining the patients.
12. We however, came across a case of Raj Rajendra Singh Seth alias R.R.S. Seth v.
    State of Jharkhand And Anr. [(2008) 11 SCC 681], wherein a doctor who had
    demanded Rs.500/- for giving proper medical treatment to the complainant’s father
    resulted in conviction of the doctor as it was held in the circumstances of the said case
    that all the requisites for proving demand and acceptance of bribe were clearly
    established and the appellant therein was held to have been rightly convicted.
    However, the prosecution version in the said case disclosed that a written complaint
    was made to SP., CBI, Dhanbad that on 1.9.1985 one Raju Hadi, a Safai Mazdoor of
    the Pathological Laboratory Area -9, BCCL, Dhanbad, alleged therein that he had
    visited Chamodih Dispensary in connection with the treatment of his father who was
    examined by Dr. L.B. Sah who referred him to Central Hospital, Dhanbad. The
    complainant’s father was admitted in the Central Hospital and the complainant visited
    his ailing father who complained of lack of proper treatment and he requested him to
    meet the doctor concerned. The complainant met Dr. R.R.S. Seth who was treating
    the complainant’s father. It was alleged by the complainant therein that Dr. R.R.S.
    Seth demanded a sum of Rs. 500/- from the complainant for giving proper medical
    treatment to his father and also insisted that the amount be paid to the doctor on
    1.9.1985. The doctor also told the complainant Raju Hadi that in case he was not
    available in the hospital, he should pay the amount to his ward boy Nag Narain who
    would pass the amount to him. Since the complainant Raju Hadi was not willing to
    make the payment of bribe amount to the doctor and ward boy, he lodged a complaint
    to the SP, CBI, Dhanbad for taking necessary action.
13. On the basis of this complaint, which was finally tried and resulted into
    conviction, came up to this Court (Supreme Court) challenging the conviction. This
    conviction was upheld by this Court as it was held therein that there is no case of the
    accused that the said amount was received by him as the amount which he was legally
    entitled to receive or collect from the complainant. It was, therefore, held that when
    the amount is found to have been passed to the public servant, the burden is on public
    servant to establish that it was not by way of illegal gratification. This Court held that
    the said burden was not discharged by the accused and hence it was held that all the
    requisites for proving the demand and acceptance of bribe had been established and
    hence interference with the conviction and sentence was refused. The learned Judges
    in this matter had placed reliance on the case of B. Noha v. State of Kerala [(2006)
    12 SCC 277], wherein this Court took notice of the observations made in the said case
    at paras 10 and 11 wherein it was observed as follows: “………….When it is proved
    that there was voluntary and conscious acceptance of the money, there is no further
    burden cast on the prosecution to prove by direct evidence, the demand or motive. It
    has only to be deduced from the facts and circumstances obtained in the particular
    case.” The learned Judges also took notice of the observations made by this Court in
    Madhukar Bhaskarrao Joshi v. State of Maharashtra [(2000) 8 SCC 571 at 577,
    para 12] wherein it was observed that “The premise to be established on the facts for
    drawing the presumption is that there was payment or acceptance of gratification.
    Once the said premise is established, the inference to be drawn is that the said
    gratification was accepted “as motive or reward” for doing or forbearing to do any
    official act. So the word “gratification” need not be stretched to mean reward because
    reward is the outcome of the presumption which the court has to draw on the factual
    premise that there was payment of gratification. ……………If acceptance of any
    valuable thing can help to draw the presumption that it was accepted as motive or
    reward for doing or forbearing to do official act, the word “gratification” must be
    treated in the context to mean any payment for giving satisfaction to the public
    servant who received it.”
14. But the most important and vital check before a public servant can be booked
    under the Prevention of Corruption Act, the ingredients of the offence will have to be
    deduced from the facts and circumstances obtained in (2001) 1 SCC 691 the particular
    case. Judging the case of the appellants on this anvil, it is not difficult to notice that in
    the case at hand, the amount that is alleged to have been accepted even as per the
    allegation of the complainant/informant was not by way of gratification for doing any
    favour to the accused, but admittedly by way of professional fee for examining and
    treating the patients. However, no presumption can be drawn that it was accepted as
    motive or reward for doing or forbearing any official act so as to treat the receipt of
    professional fee as gratification much less illegal gratification. The professional fee
    even as per the case of the complainant/informant was that this act on the part of the
    accused appellants was, contrary to the government circular and the circular itself had
    a rider in it which stated that the government doctor could do private practice also,
    provided he sought permission from the government in this regard. Thus the conduct
    of the appellants who are alleged to have indulged in private practice while holding
    the office of government doctor and hence public servant at the most, could be
    proceeded with for departmental proceeding under the Service Rules but in so far as
    making out of an offence either under the Prevention of Corruption Act or under the
    IPC, would be difficult to sustain as we have already observed that examination of
    patients by doctor and thereby charging professional fee, by itself, would not be an
    offence but as per the complaint, since the same was contrary to the government
    circular which instructed that private practice may be conducted by the government
    doctors in the State of Punjab provided permission was sought from the Government
    in this regard, the appellants were fit to be prosecuted. Thus, the appellants even as
    per the FIR as it stands, can be held to have violated only the government instructions
    which itself has not termed private practice as `corruption’ under the Prevention of
    Corruption Act merely on account of charging fee as the same in any event was a
    professional fee which could not have been charged since the same was contrary to
    the government instructions.
    Thus, if a particular professional discharges the duty of a doctor, that by itself is not
    an offence but becomes an offence by virtue of the fact that it contravenes a bar
    imposed by a circular or instruction of the government. In that event, the said act
    clearly would fall within the ambit of misconduct to be dealt with under the Service
    Rules but would not constitute criminal offence under the Prevention of Corruption
    Act.
15. In our considered view, the allegation even as per the FIR as it stands in the
    instant case, do not constitute an offence either under the Prevention of Corruption
    Act or under Section 168 of the IPC.
16. For the reasons discussed hereinbefore, we are pleased to set aside the impugned
    orders passed by the High Court and quash the FIR No.13 dated 9.4.2003 registered
    against the appellants as we hold that no prima facie case either under Section 168 of
    the IPC or Section 13 (1)(d) read with 13(2) of the Prevention of Corruption Act is
    made out under the prevailing facts and circumstances of the case and hence
    proceeding in the FIR registered against the appellants would ultimately result into
    abuse of the process of the Court as also huge wastage of time and energy of the
    Court. Hence, the respondent – State, although may be justified if it proceeds under
    the Punjab Civil Services (Punishment and Appeal) Rules against the appellants
    initiating action for misconduct, FIR registered against them under IPC or Prevention
    of Corruption Act is not fit to be sustained. Consequently, both the appeals are
    allowed.