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TMI Blog2011 (4) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 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 pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was still further submitted that the FIR against the appellant has also been registered under Section 168 of the Indian Penal Code which states as follows : "168. Public servant unlawfully engaging in trade. - Whoever, being a public servant and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both." It was submitted that this Section makes it amply clear that 'private practice' cannot be termed as 'trade', as accepting of 'fee', does not involve profit making which is an essential ingredient of the term 'trade' as held in State of Gujarat v. Maheshkumar Dheerajlal Thakkar - AIR 1980 SC 1167. The counsel further took assistance from the Punjab Government Vigilance Department ( Vigilance -3 Branch) which vide Memo No. 53/168/02-54/20094, dated 23-12-2004 (T) instructed the Chief Director, Vigilance Bureau, Punjab, Chandigarh on 19-1-2005, that the cases pending against the government teachers for holding tuition classes should be withdrawn as these cases do not come within the purview of the Prevention of Corruption Act as fees dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the facts and circumstances obtained in the particular case." 14. 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." This decision was followed by this Court in M. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. 16. However, the question still remains whether the indulgence in private practice would amount to indulgence in 'trade' while holding the post of a government doctor and hence an offence under Section 168 of the IPC, so as to hold that it constitutes a criminal offence in which case that FIR could be held to have made out a prima facie case against the appellants under Section 168 of the IPC on the ground that the appellants who are public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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