PADMAKUMAR Vs. STATE OF KERALA

JUDGEMENT

(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 Crl.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.