2011 (4) TMI 1009 - SC - Indian Laws

Whether the indulgence in private practice would amount to indulgence in trade while holding the post of a government doctor - offense under Section 168 of the IPC cannot be held to have been made out against the appellants even under this Section as the treatment of patients by a doctor cannot by itself be held to be engagement in a trade as the doctors duty to treat patients is in the discharge of his professional duty which cannot be held to be a trade so as to make out or constitute an offence under Section 168 of the IPC - 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 - orders passed by the High Court set aside and quash the FIR registered against the appellants - 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 - FIR registered against them under IPC or Prevention of Corruption Act is not fit to be sustained. Consequently, both the appeals are allowed.

Issues Involved:
1. Quashing of FIR under Prevention of Corruption Act and IPC.
2. Legality of private practice by government doctors.
3. Applicability of departmental rules versus criminal prosecution.
4. Definition and scope of 'corruption' under the Prevention of Corruption Act.
5. Interpretation of 'trade' under Section 168 of IPC.

Detailed Analysis:

1. Quashing of FIR under Prevention of Corruption Act and IPC:
The appeals were filed against the High Court's refusal to quash FIR No. 13 dated 9-4-2003, which was registered 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. The appellants, government doctors, were accused of doing private practice and charging fees, contrary to government instructions.

2. Legality of private practice by government doctors:
The FIR was based on allegations that the appellants were conducting private practice and charging Rs. 100 per patient. The appellants argued that this act was done on humanitarian grounds and did not involve any medical instruments or apparatus, which were not recovered during the raid.

3. Applicability of departmental rules versus criminal prosecution:
The appellants contended that any deviation from the rules prohibiting private practice by government doctors should result in departmental proceedings under the Punjab Civil Services (Punishment and Appeal) Rules, rather than criminal prosecution under the IPC or the Prevention of Corruption Act.

4. Definition and scope of 'corruption' under the Prevention of Corruption Act:
The appellants argued that the demand/receipt of fees for private practice does not constitute 'illegal gratification' under Section 7 of the Prevention of Corruption Act. The court agreed, stating that charging a professional fee for medical services does not equate to illegal gratification. The court emphasized that 'corruption' involves acceptance or demand of illegal gratification for performing an official act, which was not the case here.

5. Interpretation of 'trade' under Section 168 of IPC:
The court examined whether private medical practice by government doctors constitutes 'trade' under Section 168 of IPC, which prohibits public servants from engaging in trade. The court concluded that medical practice is a professional duty and not 'trade,' hence, Section 168 IPC does not apply.

Judgment Summary:
The Supreme Court critically analyzed the allegations and the legal provisions. It concluded that:
- The demand/receipt of fees by the appellants was for professional services and not illegal gratification.
- The conduct of the appellants, even if contrary to government instructions, did not constitute an offense under the Prevention of Corruption Act or IPC.
- The appellants could be subject to departmental proceedings for misconduct under the Punjab Civil Services (Punishment and Appeal) Rules, but not criminal prosecution.

The court set aside the High Court's orders and quashed the FIR, stating that continuing the proceedings would result in an abuse of the court's process. The appeals were allowed, emphasizing that the allegations did not make out a prima facie case under the Prevention of Corruption Act or Section 168 of IPC.

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