JUDGMENT :

V.M. DESHPANDE, J.

1. This writ petition is placed before Full Bench in view of the reference made by the learned Single Judge of this Court on 22.01.2020. Though the writ petition was disposed of by learned Single Judge by permitting respondent no. 1-Maharashtra Medical Council (hereinafter referred to as ‘MMC’) to withdraw the notice dated 01.09.2012, the learned Single Judge, in paragraph 21, observed thus:

“21. I, however, find that since there is a conflict of view in Saroj Iyer (supra) and Dr. Megha Mahendra Topale (supra), both delivered by two learned Division Benches of this Court, I, direct the learned Registrar (Judicial) of this Court to place this matter before The Hon’ble The Chief Justice of the Bombay High Court under Chapter-I, Rule 8 of the Bombay High Court Appellate Side Rules, 1960 for considering a reference to a Full Bench of this Court.”

2. Accordingly, this Full Bench was constituted. Judgment in Saroj Iyer and Another vs. Maharashtra Medical (Council) of Indian Medicine, Bombay and Another, 2002 (1) Mh. L.J. 737 was delivered by Division Bench (R.M. Lodha and Smt. Nishita Mhatre, JJ.) of this Court and judgment in Dr. Megha Mahendra Topale vs. Navi Mumbai Municipal Corporation and Others, 2014 (5) Mh. L.J. 323, was delivered by Division Bench (A.S. Oka and A.S. Chandurkar, JJ.) of this Court.

3. As per learned Single Judge, there is a conflict of views in these two cases. This reference was placed before us on 11.12.2020. On the said day, because Writ Petition No. 999/2018 in which reference is made was disposed of on 22.01.2020, we invited learned members of the Bar to address the Court on the following questions in order to reach to the correct position of law in respect of the issue referred to the Full Bench. The questions, which we formulated are as under:

“(i) Whether there could be a reference by the Court when the cause is not live or not in existence or, in other words, whether the Larger Bench can answer the issue for academic purpose?

(ii) What is the exact difference of opinion in between two Hon’ble Benches of this Court as referred in the reference?”

The matter was then placed on 21.12.2020. On 21.12.2020, apart from Mr. F.T. Mirza, learned counsel for petitioner in Writ Petition No. 999/2018 and Mr. V.P. Panpalia, learned counsel for respondent no. 1-MMC, Mumbai, Mr. R.L. Khapre, learned Senior Counsel and Mr. A.A. Naik, learned counsel also addressed on the above referred questions.

4. Since Writ Petition No. 999/2018 is already disposed of, we thought it fit to have its factual matrix in this judgment.

5. Factual Matrix of Writ Petition No. 999/2018:

(a) Petitioner is a Doctor having educational qualification of MBBS, DCH, MD (Pediatric). His wife is a Gynecologist and his father is a General Practitioner. The petitioner runs 80 bedded hospital which was started by his grandfather in the year 1927 and as per the petition, he was the first surgeon in the Central India. Hospital of the petitioner is recognized by Medical Council for teaching course of DCH.

(b) One Mohanlal Chutlani, father-in-law of respondent no. 2 in the writ petition, Smt. Laxmi Harish Chutlani, filed a report at Police Station, Ramdaspeth, Akola on 16.12.2008 stating therein that on 31.07.2008 his daughter-in-law gave birth to a premature baby, which was earlier treated at Government Hospital but as baby’s condition was not improving, the baby was admitted to hospital of one Dr. Anup Kothari and the baby was in the said hospital till 13.10.2008. However, since health of the baby was further deteriorated, the baby was admitted in the hospital of the petitioner on 11.11.2008 and it was kept in incubator in the ICU of the petitioner’s hospital. Name of the baby was Saurabh. It was alleged in the report that on 15.11.2008, when the first informant went to see the child, he found that the baby in incubator was not his grandson and the baby was changed. On the report lodged by Mohanlal, a crime was registered vide Crime No