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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 ..... FIR registered against them under IPC or Prevention of Corruption Act is not fit to be sustained. Consequently, both the appeals are allowed. - 1041-1042 of 2011 - - - Dated:- 28-4-2011 - Markandey Katju and Gyan Sudha Misra, JJ. REPRESENTED BY : Ms. Jigyasa Tanwar, Shri Rohit Tanwar (for Dr. Kailash Chand), Advocates, for the Appellant. S/Shri Niraj Jha (for Kuldip Singh), Advocate, for the Respondent. [Judgment per : Gyan Sudha Misra, J.]. Leave granted. 2. 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 appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, it clearly emerges that corruption 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 Corruptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled 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. 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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