CRLMC No. 3090 of 2012. Case: Kamurul Haque Vs State of Orissa. High Court of Orissa (India)
| Case Number | CRLMC No. 3090 of 2012 |
| Counsel | For Appellant: H.N. Mohapatra and A. Samantray, Advs. and For Respondents: Deepak Kumar Pani, Addl. Standing Counsel |
| Judges | S.K. Sahoo, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 161, 482; Constitution of India - Articles 19, 19(1)(g), 19(6), 21, 73; Indian Evidence Act, 1872 - Section 45; Indian Medical Council Act, 1956 - Sections 10A, 2, 2(a), 2(f); Indian Medical Degrees Act, 1916 - Sections 2, 3, 4; Indian Medicine Central Council Act, 1970 - Section 17(2); Indian ... |
| Judgement Date | January 02, 2017 |
| Court | High Court of Orissa (India) |
Judgment:
S.K. Sahoo, J.
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The petitioner Kamurul Haque has filed this application under section 482 of the Cr.P.C. challenging the order dated 05.09.2003 of the learned S.D.J.M., Bhubaneswar passed in G.R. Case No. 3433 of 2002 in taking cognizance of offence under section 420 read with section 34 of the Indian Penal Code and issuance of process against him. The said case arises out of Mancheswar P.S. Case No. 182 of 2002.
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On 25.10.2002 one Smt. Aswini Pattnaik, Inspector of Police, CID, CB, Orissa, Cuttack lodged the First Information Report before the Inspector in charge, Mancheswar Police Station stating therein that accused Raj Kishore Nayak, President, Managing Body, Orissa Medical College of Alternative Medicines, (hereafter for short "OMCAM") along with the petitioner who was the Principal of OMCAM were managing the educational institution in the name and style as OMCAM, Hospital and Research Centre, Bhubaneswar, At/PO-Naharkanta in the district of Khurda which was registered under Societies Registration Act. Both the accused represented that their institution was registered by Govt. of Orissa and any student after completion of four and half years course can open his own clinic which according to the informant was found to be a clear case of fraud and misrepresentation of facts. As the study and practice of medical science relates to human life and safety, there was clear instruction to private medical colleges to obtain approval from Medical Council of India and Government before admission. The courses of study of alternative medicines have not been approved by Director, Medical Education and Training, Orissa or Medical Council of India and it was detected during inquiry that there was no hospital of the institution and even after lapse of five years, OMCAM did not succeed in getting either approval of Government or of the Medical Council of India.
According to the further prosecution case as per the F.I.R. that such fraudulent misrepresentation of facts were intended to induce the students to deposit money as admission, development, tuition and examination fees for the four and half years course to become a doctor of alternative medicine. The two accused persons not only got the contribution of its forty students but also tried to get aid of rupees five crores from Rajiv Gandhi Foundation through deceitful means.
On receipt of such First Information Report, the Inspector in charge of Mancheswar Police Station registered Mancheswar P.S. Case No. 182 of 2002 under sections 420/34 of the Indian Penal Code on 25.10.2002 and directed S.I. R.N. Nayak to take up investigation of the case. During course of investigation, the Investigating Officer examined the informant and visited the spot. By virtue of office order No. 302/CID dated 22.11.2002 of Addl. D.G. of Police, CID, CB, Orissa, Cuttack, investigation of the case was taken over by Inspector Gagan Chandra Das of CID, CB. It was found out during investigation of the case that the OMCAM was neither recognized by Govt. of India nor the State Govt. and the same was not even affiliated to any University of India and as such OMCAM had no right to award degree to the students as per section 3 of the Indian Medical Degrees Act, 1916 and section 22 of the University Grants Commission Act, 1956. The students passing from the institution cannot practise as a medical practitioner as per section 17(2) of the Indian Medicine Central Council Act, 1970. It was further found out during investigation that the accused persons as college authorities printed on the cover page of the prospectus as "Registered by I.G.R., Government of Orissa vide Registration No. 20456/98-1999", which was misleading and meant to deceive the students and public in general. The College authorities also cheated the students by false representation of fact in the prospectus that after getting degrees and passing from the institution, they can open clinics and practise. The accused persons also induced the students to deposit Rs. 34,750/- at the time of admission from 1997 to 2000 and thereby collected huge amount. Since 2001, the amount was increased to Rs. 8000/- each for each of the nine semesters i.e., Rs. 72,000/- in total. As a result of dishonest inducement, the students deposited money causing wrongful loss to them and prosecuting their studies at OMCAM to become degree holder in medical science. The Director, Indian Medicines and Homeopathy, Bhubaneswar proved that the Governing Body of OMCAM was intimated that the Government decided not to grant recognition to OMCAM, Hospital and Research Centre, Naharkanta. The relevant documents like admission register, cash book, money receipt book along with other registers and documents of OMCAM were seized and released in the zima of the President, OMCAM. On finding prima facie case against the accused persons Raj Kishore Nayak and the petitioner Kamurul Haque, charge sheet was placed against them by Sri Gagan Chandra Das, Inspector of Police, CID, Crime Branch, Cuttack on 05.04.2003 under sections 420/34 of the Indian Penal Code.
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The learned counsel for the petitioner Mr. H.N. Mohapatra challenging the impugned order contended that the President of the OMCAM namely Rajkishore Nayak is dead and the present petitioner was the Principal of OMCAM and he was in no way connected with the college establishment and he was duly appointed in the said institution by a recruitment process. Moreover the petitioner got post graduate degree by prosecuting his study in Medical College of Alternative Medicine, Canal Street, Kolkata, which is duly affiliated with the Open International University for Complementary Medicine, Colombo, Srilanka and Council of Alternative System of Medicine is affiliated to the said University. Like the Medical College of Alternative Medicine, Kolkata, the OMCAM, Hospital and Research Centre, Naharkanta was established since 1997 and has been duly registered under Government of Orissa under the Societies Registration Act, 1860 bearing Regd. No. 20456/6 of 1998-99. The said institution was also affiliated with the Open International University for Complementary Medicine (Medicina Alternativa), Srilanka and it was accorded recognition for conducting examination, issue certificates and certificates for registration for students. The learned counsel placed Annexure-2, the Memorandum of Association of OMCAM, Hospital and Research Centre and contended that it specifically reveals that the aim of the institution was to inculcate the spirit of knowledge in the line of treatment in Alternative Medical Science mainly on AIDS and Cancer and Contraception methods in family planning and also to admit students in different faculties to teach, examine and issue degree to the successful candidates in affiliation with the Open International University for Complementary Medicine, Colombo, Srilanka. He placed clause 3.C.(iii) of the Rules and Regulations to indicate that the Governing Body shall have power to accept any trust, fund or endowment in which OMCAM, Hospital and Research Centre is interested and to raise funds for the College by gift, donation or otherwise raise loan etc. More particularly, the guardians of the students of the College are the general body members of the institution. According to Mr. Mohapatra, when the State Government has accepted the memorandum as well as bye-law and allowed the institution for registration, lodging of the F.I.R. under section 420 of the Indian Penal Code and allowing the prosecution to continue on the basis of such F.I.R. is not permissible in eye of law.
According to the learned counsel for the petitioner, the Open International University for Complementary Medicine, Srilanka, which has affiliated the OMCAM, Hospital and Research Centre, Naharkanta to make Alternative Medicine popular, was established under the Medicina Alternativa, Colombo and recognized as a Deemed University by the authority of the President of Democratic Society Republic, Srilanka, which is internationally recognized by the United Nations and it is duly recognized by Government of India on 3rd December, 1981 as signatory to the International agreement for establishment University for Peace. The said International University is cross-affiliated by the Oxford International University.
According to the learned counsel for the petitioner, alternative medicine is a system, which is contrary to the modern system of medicine based on antibiotics and chemical compound and it is devoid of medicine made by chemical. Complementary medicine caters in general for people whom scientific medicine cannot or does not help. The system of alternative medicine is now well recognized all over the world. It was pointed out that the United Nations, in order to fight the health problem of the world has approved and recognized the Graduate and Post Graduate Classes of the Open and Complementary Medicine and inter-University academic co-operation for providing medicines to mankind of all sorts of healing process. The said Council tried in its small way to help the sufferings of humanity when the Allopathic system, Ayurvedic system and other recognized system failed to reach to the majority of the people in India. The Society imparts and trains its members, students through the trained persons in the matter of different therapy namely Naturopathy, Bach Flower remedies (BFRs), Acupuncture, Electro Homeopathy and Herbal Product etc.
According to Mr. Mohapatra, OMCAM, Hospital Research Centre, Naharkanta was imparting medical education in various disciplines such as Bachelor of Naturopathy and Yogic Science (B.N.Y.S.), Bachelor of Integrated Medicine & Surgery (B.I.M.S.) and Bachelor of Electro Homeopathy, Medicine &...
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