KAMURUL HAQUE Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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.

(2.) 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 practise 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.

(3.) 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 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.