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2023 Supreme(Del) 2771
IN THE HIGH COURT OF DELHI AT NEW DELHI
Jasmeet Singh, J.
Biswaroop Roy Chowdhyury – Appellant
Versus
Delhi Medical Council & Ors – Respondent
W.P.(Crl.) 2532 of 2021, Cr.M.A. 20463 of 2021, Cr.M.A. 18719 of 2022
Decided On : 09-02-2023
Mr. Somnath Bharti, Mr. Prajanya Rathore, Advocates, for the Petitioner.
Ms. Nandita Rao, ASC CRL, for State with Mr. Amit Peswani, Mr. Saransh, Advocates with SI Vikas Sahu, PS VK South.
Mr. Manu Sharma, Mr. Puneet Parihar and Mr. Kartikey Masta, Advocates, for the R-2.
Mr. Praveen Khattar, Advocate, for the R-1.
The main legal point established in the judgment is the importance of expert medical opinions in criminal cases involving medical practitioners and the need for adherence to guidelines for prosecution of doctors for offenses of criminal negligence.
Headnote:
Writ of Mandamus - Delhi Medical Council - Drugs and Magic Remedies Act, 1954, Delhi Medical Council Act - Sections 3, 7, 26, 27 - The court discussed the powers, duties, and functions of the Delhi Medical Council under Section 10 of the Delhi Medical Council Act and emphasized the need for expert medical opinions in criminal cases involving medical practitioners. The court highlighted the guidelines for prosecution of doctors for offenses of criminal negligence and the role of expert medical opinions in determining the registration of FIRs.
Fact of the Case:
The petitioner sought a writ of mandamus declaring the order of Delhi Medical Council null and void and sought directions against illegal actions to defame him. The case arose from an FIR registered against the petitioner for impersonating as a medical practitioner and promoting events claiming to cure Diabetes and make heart attack proof, resulting in the demise of a patient.
Finding of the Court:
The court found that the order of the Delhi Medical Council was an opinion given in response to a request from the Delhi Police for further investigation. The court emphasized the need for expert medical opinions in criminal cases involving medical practitioners and dismissed the petition, stating that the petitioner had failed to appear before the Delhi Medical Council despite opportunities granted.
Issues: The issues involved the jurisdiction and actions of the Delhi Medical Council, the petitioner's qualifications and practice, and the validity of the order passed by the Delhi Medical Council.
Ratio Decidendi: The court emphasized the need for expert medical opinions in criminal cases involving medical practitioners and highlighted the guidelines for prosecution of doctors for offenses of criminal negligence. The court also noted that the petitioner had failed to appear before the Delhi Medical Council despite opportunities granted.
Final Decision: The court dismissed the petition, stating that the petitioner had failed to appear before the Delhi Medical Council despite opportunities granted.
JUDGMENT
Jasmeet Singh, J. (Oral)
1. This is a petition seeking writ of mandamus declaring the order of 28.09.2021 passed by Delhi Medical Council as null and void being a noncompetent authority to pass the same.
2. In addition, the petitioner has also sought directions against illegal actions against respondent No. 1 in connivance with the complainant to defame him in the society.
3. Briefly stating the facts giving rise to the present petition is that an FIR was registered by the complainant, Mr. Jaideep Bihani on 04.09.2019, P.S. Vasant Kunj South stating that the petitioner herein is impersonating as a medical practitioner and promoting events which claim to cure Diabetes and make heart, attack proof.
4. He further states that placing reliance on the representations of the petitioner, he took his mother Shrimati Shanta Bihani to one of the camps of the petitioner to improve her diabetic condition and paid the fee as charged by the petitioner. Subsequently, the mother of the petitioner was prescribed a diet by the petitioner. It is further alleged in the FIR that on the advice of the petitioner, the mother of the petitioner was prevented from consuming her prescribed medicines
5. It is contended that due to the prescribed diet, the mother of the complainant suffered from a heart attack which led to her ultimate demise.
6. Owing to the aforesaid, the police registered the FIR. Subsequently, the police sent the FIR for medical comments/opinion to the Delhi Medical Council.
7. After obtaining opinion from the Delhi Medical Council, the Delhi Police added sections 3 and 7 of the Drugs and Magic Remedies Act (Objectionable Advertisement) Act, 1954 and Sections 26 and 27 of the Delhi Medical Council Act.
8. It is stated by Mr. Bharti, learned counsel for the petitioner that in the present case, the opinion of the Delhi Medical Council Act needs to be quashed as the petitioner is not a medical practitioner as defined u/s 2(7) of the Delhi Medical Council Act, 1997 or does not deal in medicine as defined in Section 2(a) of the Delhi Medical Counsel Act.
9. He further states that the Delhi Medical Counsel Act only exercises jurisdiction over the functions mentioned in Section 10 of the Delhi Medical Council Act.
10. He further submits that the petitioner neither practises Allopathic form of medicine nor Unani form of medicine. He only suggests lifestyle changes and is a nutritionist and as a nutritionist, the petitioner prescribes diets for a healthy living. It is also stated that his diets are approved by the Ministry of AYUSH.
11. Lastly, he submits that he is neither advising nor prescribing any medicines. The Drugs and Magic Remedy Act is not applicable as it does not include food as drug.
12. Mr. Khattar, learned counsel appearing for Delhi Medical Council states that in the present case, the Delhi Medical Council has only given its comments on the queries raised by Delhi Police.
13. It is stated by Mr. Khattar, ld. counsel for the respondent that the petitioner is not aggrieved by the act of Delhi Medical Council but that the Delhi Medical Council was allegedly acting in connivance with the complainant.
14. He further states that the petitioner in his response claims to be practising in AYUSH system of medicine but there is no registration with Delhi Bhartiya Chikitsa Parishad.
15. It is further stated that the petitioner is indulging in quackery by practising medicine without holding any recognized qualification or registration from concerned medical regulatory authority i.e. Delhi Bhartiya Chikitsa Parishad.
16. In the present case, the petitioner has not filed for quashing of the FIR. The limited prayer is to seek a direction declaring the order dated 28.09.2021 passed by Delhi Medical Council as being null and void.
17. The DMC Act was enacted to provide for the constitution of the respondent DMC i.e. the Delhi Medical Council and the maintenance of a Register of medical practitioners engaged in the practi
