Allahabad High Court
Dinesh Kumar Mishra vs State Of U.P. And Another on 11 April, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:54230 Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 12183 of 2025 Applicant :- Dinesh Kumar Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ganesh Kumar Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J.
1. Heard Sri Ganesh Kumar, learned counsel for the applicant and learned AGA for the State.
2. The present application under Section 528 BNSS has been filed for quashing of the entire proceedings of Case No. 5392 of 2024 (State Vs. Sachin Kumar Chaurasiya and another), arising out of Case Crime No. 305 of 2023, under Sections 419, 420, 467, 468, 471 IPC and Section 15(3) of Indian Medical Council Act, 1956 and Section 4/25 Arms Act, Police Station Dumariyaganj, District Siddharth Nagar, pending in the court of learned Chief Judicial Magistrate, Siddharth Nagar, as well as charge-sheet dated 04.03.2024 and cognizance/summoning order dated 10.05.2024, passed in the aforesaid case.
3. Brief facts of the present case are that opposite party no.2 lodged an FIR against applicant and two other co-accused bearing Case Crime No.305 of 2023, under Sections 419, 420, 467, 468, 471 IPC and Section 15(3) of Indian Medical Council Act and Section 4/25 Arms Act alleging therein that co-accused Sachin Kumar Chaurasiya is running a hospital in the name of Krishna Hospital with support of applicant and others for gaining undue advantage and neither the applicant is having any medical degree nor the said hospital is registered. After lodging of the FIR, inquiry was initiated and after conduction of the same, the concerned Investigating Officer submitted chargesheet on dated 04.03.2024 under Sections 419, 420, 467, 468, 471 IPC and Section 15(3) of Indian Medical Council Act and Section 4/25 Arms Act whereupon learned court concerned has taken cognizance and summoned the applicant vide impugned order dated 10.05.2024.
4. Learned counsel for applicant submitted that the present case cannot be sustained for an offence under Section 15 of the Indian Medical Council Act, 1956 as the Magistrate cannot take cognizance on the basis of police report for an offence under Section 15 of the Act.
5. Learned counsel for applicant argued that offence punishable under Section 15 (3) of the Act is a non-cognizable offence and, as such, the Magistrate cannot take cognizance of the offence on the basis of police report and the same can only be taken on a complaint filed before him under Section 190 (1) (a) read with Section 200 of the Code of Criminal Procedure and as such, cognizance for offence under Section 15(3) of the Act against the applicant, is wholly against the law.
6. In sofar as the offence under Sections 419, 420, 467, 468, 471 IPC and Section 4/25 Arms Act are concerned, learned counsel for applicant submitted that during investigation, the concerned Investigating Officer has not collected any forged documents in respect of medical/medicine degree or any forged registration certificate with respect to running hospital or any illegal weapon and as such, no offence under the said sections is made out but without conducting fair investigation, charge-sheet has been submitted whereupon learned court concerned without applying its judicial mind, summoned the applicant, therefore, the entire criminal proceedings may be quashed.
7. In support of his contentions, learned counsel for applicant placed reliance upon the judgment passed by High Court of Punjab & Haryana in the case of Ashok Kumar Vs. State of Punjab and others [2011 LawSuit (P&H) 2450].
8. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition and submitted that so far as the offence under Section 15(3) of the Act, 1956 is concerned, the same is a non-cognizable offence and, as such, the Magistrate cannot take cognizance of the offence on the basis of police report and the same can only be taken on a complaint filed before him. In sofar as the summoning and proceedings against the applicant under Sections 419, 420, 467, 468, 471 IPC and Section 4/25 Arms Act are concerned, learned AGA submitted that whether the offence under the said sections is made out or not, that can be decided by the trial court after taking evidence and at this stage matter cannot be examined meticulously.
9. I have considered rival submissions and perused the record.
10. Before proceeding further, it would be apposite to quote Section 15 of the Act, 1956, which reads as under:-
“15. Right of persons possessing qualifications in the Schedules to be enrolled –
1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.
2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register-
a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;
b) shall practise medicine in any State; c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner;
d) shall be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 (1 of 1972) on any matter relating to medicine.
3) Any person who acts in contravention of any provisions of Sub section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”
11. Thus, offence punishable under Section 15(3) of the Act, 1956, is a non-cognizable offence and, as such, the Magistrate cannot take cognizance of the offence on the basis of police report and the same can only be taken on a complaint filed before him.
12. In view thereof, taking cognizance for offence under Section 15(3) of the Act, 1956 by the learned court concerned against the applicant on a police report, is not sustainable and the same is liable to be set aside.
13. In sofar as the offence under Sections 419, 420, 467, 468, 471 IPC and Section 4/25 Arms Act is concerned, from perusal of the allegations levelled upon the applicant through the FIR, it cannot be said that no offence under Sections 419, 420, 467, 468, 471 IPC and Section 4/25 Arms Act is made out against the applicant and as such, learned court concerned has rightly taken cognizance of offence under the said Acts and moreso, this is a disputed question of fact, and would involve appreciation of evidence and at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial.
14. In view of the aforesaid discussions, cognizance of offence taken vide order dated 10.05.2024 under Section 15(3) of Indian Medical Council Act, 1956 is not sustainable in the eye of law and as such, learned court concerned is hereby directed to proceed with Case No. 5392 of 2024 (State Vs. Sachin Kumar Chaurasiya and another), arising out of Case Crime No. 305 of 2023 only in respect of Sections 419, 420, 467, 468, 471 IPC and Section 4/25 Arms Act against the applicant herein.
15. Accordingly, the instant application is allowed in part.
Order Date :- 11.4.2025
Vivek Kr.
(Saurabh Srivastava, J.)