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2015 Supreme(Bom) 2523
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Abhay M. Thipsay, J.
STATE OF MAHARASHTRA - Appellant
Vs.
SHANKAR BHIKU WALAPKAR - Respondent
Cri. Appeal No. 565 of 1993
Decided on : 14-07-2015
For the Respondent: Chaitanya K. Pendse, P. B. Jadhav
For the State : Mrs. S. Gajare-Dhumal
The central legal point established in the judgment is the necessity of convicting the accused for contravening the provisions of the MMP Act, despite the absence of a specific charge for section 33 during the trial.
Headnote:
MMP Act - Prosecution under section 33 of the Maharashtra Medical Practitioners Act, 1961 and section 417 of the Indian Penal Code - Summary of Acts and Sections: The court discussed the provisions of section 33 and section 36 of the MMP Act, highlighting the prohibition of medical practice by unregistered persons and the prohibition against adding titles or abbreviations implying medical qualifications without authorization. The court emphasized the accused's contravention of these provisions and the legal implications of using unauthorized medical abbreviations.
Fact of the Case:
The respondent was prosecuted for offences under section 33 of the MMP Act and section 417 of the Indian Penal Code. The trial court acquitted the respondent, leading to the present appeal by the State of Maharashtra. The evidence showed that the accused was practicing medicine without proper qualifications and registration, leading to charges under the MMP Act and the Indian Penal Code.
Finding of the Court:
The court found the accused guilty of offences under section 33 and section 36 of the MMP Act, despite the absence of a specific charge for section 33 during the trial. The court also noted the accused's attempt to cheat was not satisfactorily established, leading to acquittal on that charge. The court emphasized the accused's contravention of the MMP Act provisions and the need for conviction despite the absence of a specific charge.
Issues: The issues revolved around the accused's contravention of the MMP Act provisions, the sufficiency of evidence, and the absence of a specific charge for section 33 during the trial.
Ratio Decidendi: The court held that the accused's contravention of the MMP Act provisions warranted conviction, despite the absence of a specific charge for section 33 during the trial. The court also emphasized the need to consider the legal implications of using unauthorized medical abbreviations.
Final Decision: The appeal was allowed, the respondent was convicted of offences under sections 33 and 36 of the MMP Act, and was released on probation under the Probation of Offenders Act.
On the basis of a police report, the respondent was prosecuted on the allegation of having committed an offence punishable under section 33 of the Maharashtra Medical Practitioners Act, 1961 (for short 'MMP Act') and section 417 of the Indian Penal Code read with section 511 thereof. The Judicial Magistrate First Class, Dapoli, after holding a trial, by a judgment and order dated 11th May 1993, acquitted the respondent of the said offences. The State of Maharashtra is aggrieved by the said order of acquittal and has therefore, after obtaining leave of this Court, filed the present appeal, challenging the correctness of the judgment of acquittal delivered by the learned Magistrate.
2. For the sake of convenience and clarity, the respondent is hereinafter referred to as 'the accused'. (except in the operative part of the order)
3. I have heard Mr. C. K. Pendse, learned counsel for the appellant. I have heard Mrs. S. Gajare-Dhumal, learned APP for the State. With the assistance of the learned counsel, I have gone through the record of the case. I have carefully gone through the evidence adduced during the trial and the impugned judgment.
4. The prosecution case, as put forth, before the trial Court may be stated thus :- One Dattatraya Kulkarni (PW 1) used to perform magic shows by visiting different villages. In the month of December 1987 he had gone to village Gaotale. At that time, he saw one board of dispensary in which the name with "Dr. S. V. Walapkar" was written and degree 'B.A.M.S' was mentioned against the said name. On the board, registration number 13396' was also written. Kulkarni suspected the board to be bogus. Kulkarni then made inquiries about the said registration number, and learnt that it had been given to one Dr. Laxman Satvi. Kulkarni then reported the matter to the police by writing a letter (Exhibit-9), addressed to the Superintendent of Police, Ratnagiri. This letter was sent by the Superintendent of Police to Hirachand Umbarkar (PW 5) who was, at the material time, working as a Sub-Inspector of Police at Dapoli. Umbarkar made preliminary inquiries in the matter. The respondent was called in the course of the inquiry, and he produced three certificates before Umbarkar. The copies of the certificates were sent by Umbarkar to the Maharashtra Council of Indian Medicine (hereinafter referred to as 'the Medical Council') for examination and opinion. The Medical Council replied that the certificates produced by the respondent were not recognized in Maharashtra. The communication sent by Medical Council also mentioned that the respondent was neither registered as a medical practitioner in Maharashtra nor was he entitled for registration. It was advised that action could be taken against him in respect of offences punishable under section 33 and 36 of the Maharashtra Medical Practitioners Act for illegally practicing medicine and for using the abbreviations "DR" and "B.A.M.S" with his name. Thereafter, Umbarkar lodged a report alleging commission of the offence punishable under section 33 of the MMP Act against the accused which was registered as First Information Report by Shashikant Sawant (PW 6), Police Head Constable who is the Investigating Officer in the matter.
5. The prosecution examined totally six witnesses during the trial. Kulkarni (PW 1), Umbarkar (PW 5) and Shashikant Sawant (PW 6) have already been referred to earlier. The other three witnesses Vikas Mhabdi (PW 2), Shashikant Pawar (PW3) and Vithoba Pawar (PW 4) are the patients who had taken medical treatment from the accused.
6. At the outset, some curious aspects of the matter must be mentioned. The first is that the allegation against the accused was that he had committed offences punishable under sections 33 and 36 of the MMP Act. However, the police report that was filed, though clearly mentioned that the accused has been practicing in a system of medicine without having the requisite qualification, or without having the necessary registr
