ARVIND C SHAH DR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application is filed by one Panel Doctor so called popularly panel being prepared by the Employees State Insu- rance Corporation constituted under the Employees State Insurance Act 1948 The Applicant herein and his compounder have been chargesheeted by the Police Inspector Anti-Corruption Bureau Ahmedabad for the offence punishable under secs. 161 and 165-A of the Indian Penal Code and also under sec. 5(1)(d) punishable under sec. 5(2) of the Prevention of Corruption Act the allegation against them being that this petitioner while working as a Panel Doctor under the E.S.I. Scheme Ahmedabad had accepted Rs. 35.00 from one Hansraj Vishwasbhai Chunara for issuing a certificate. This amount was accepted by his compounder the original accused No. 2 on behalf of the accused No. 1 and therefore both the accused were stated to. have committed the aforesaid offence.

(2.) The State proceeded on the assumption that the accused and his compounder were public servants and had they not been so the prosecution for the above offence could not have been conceivably there. The accused gave an application Exh. 8 to the learned Judge of the City Civil Court who was appointed as a Special Judge for the purposes of Prevention of Corruption Act. In the application itself it was inter alia contended that under the rules of the Scheme an Allocation Committee was formed for selection of insured medical practitioners who like the petitioner were private practitioners and were running their own dispensary. The Allocation Committee then recommended the selected private practitioners who were put on the list of Panel Doctors who are known as Panel Doctors. These doctors are expected to treat the insured persons and their families on a fixed capitation fee so specifically designated. The petitioner also showed that the insured persons were free to choose their panel doctors that the limit of persons to be served also was fixed. The Panel Doctor was free to remove the name of the insured person by giving a notice and the insured person also was likewise entitled to change the Panel Doctor. It was also set out in the application itself that in the Special Civil Application No. 1999 of 1982 filed by this petitioner the Director of the Employees State Insurance Corporation had specifically averred that Panel Doctors were not Government servants. The application therefore was given stating that the whole prosecution was baseless that the Court had no jurisdiction to try the accused and therefore the proceedings be quashed. The learned Judge by his order rejected the application and that has given rise to the present revisional proceedings.

(3.) The learned Public Prosecutor urged that at interlocutory stage the High Court should not interfere. Certain orders though passed during the pendency of the proceedings have got the character of final orders and if it be so as per the settled legal position this High Court can intervene in exercise of its revisional jurisdiction. Alternatively Mr. D. K. Shah for the petitioner submitted that when the serious sword of Damocles was hanging over the head in the form of unfounded prosecution this Court should intervene even by invoking powers under sec. 482 of the Criminal Procedure Code. The Supreme Court has laid down the law very clearly that even the prosecution lodged by Police or the investigating agency can be quashed if it is found that it is absolutely without any legs to stand upon. The only question therefore that requires to be examined is whether the applicant doctor is a public servant as per the term defined under sec.-21 of the Indian Penal Code. The said section gives a plethora of categories of public servants. But if any stretch can be extended to any of those clauses only clause 12 can conceivably be relied upon. I therefore quote the said clause 12 below: