The act of a public servant treating and operating on a patient at a private hospital did not constitute an offence under the Prevention of Corruption Act, 1988.

ORDER

1. The petitioner herein is the sole accused in CC.No.20/2013 on the file of the Enquiry Commissioner and Special Judge, Kottayam for offences punishable under Sections 7, 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988.

2. The allegation of the prosecution is that the petitioner being a public servant employed as Lecturer (Ortho), Medical College Hospital, Kottayam, who was not authorised to treat or operate a patient other than those admitted in Medical College Hospital as per the service conditions, voluntarily treated CW1 and performed operation on him on 30.06.2006 at a private hospital and he had obtained an amount of Rs.12,000/-(Rupees twelve thousand only) from CW1 on 28.06.2006. Alleging that he had committed criminal misconduct by misusing his official position as a public servant during 2006 and obtained undue pecuniary advantage, prosecution was lodged. After investigation, final report was laid. The petitioner thereafter filed an application as Cri.M.P.No.786/2016 under Section 239 of Cr.P.C, seeking discharge. The learned Special Judge by the impugned order dismissed the application, which is under challenge in the present proceedings.

3. Essential facts are not in dispute. It seems that during the relevant time, guidelines were issued by the Government restricting private practice of Government doctors, but permitting private practice after duty hours. They were also not permitted to do private practice in private hospitals. The crux of the prosecution allegation is that the petitioner treated a patient for back pain and performed surgery on him, in a private hospital. Materials gathered by the prosecution show that during the relevant time the petitioner was employed as a Lecturer (Ortho) in the Government Medical College Hospital, Kottayam and also that during the relevant day, he had performed his surgery at the private hospital. The statement of the persons, who were associated with the surgery have also been recorded by the investigating agency.

4. The crucial question that arises before this court is whether performing surgery while being in Government service and receiving remuneration for that will amount to misconduct and a corrupt practice as provided under the Prevention of Corruption Act 1988. The contention of the learned counsel for the petitioner is that even assuming that the petitioner had performed the surgery, at the most, that will only be a misconduct warranting action if any, under the service rules and no criminal prosecution would lie and that the above act will not amount to corrupt practice or misconduct as contemplated under the provisions of the Prevention of Corruption Act.

5. To substantiate the above contentions, the learned counsel for the petitioner relied on the decision in Kanwarjit Singh Kakkar and Another Vs. State of Punjab and Another 2011 KHC 4417. That was a case wherein two doctors serving as Government doctors were prosecuted for receiving charges from patients for checking their blood pressure and also for giving them medicine. The court considered whether the conduct will amount to corrupt practice as defined under Section 7 of the Prevention of Corruption Act. It was held by the Supreme Court that corruption was acceptance or demand of illegal gratification for performing an official act. It was held that it would be preposterous 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 plain common sense. However, the situation would be different, if it was alleged that while the doctor doing private practice as a 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 pr