Private practice by govt doctors no crime: Supreme Court

From http://articles.timesofindia.indiatimes.com/2011-04-29/india/29486752_1_private-practice-government-doctor-prevention-of-corruption-act

NEW DELHI: The Supreme Court on Thursday ruled that government doctors defying the ban on private practice and charging consultation fee from patients in a clinic during spare time could neither be accused of indulging in trade nor be booked under the anti-corruption law.

A bench comprising Justices Markandey Katju and Gyan Sudha Misra quashed the FIR lodged against two Punjab government doctors, who were charging Rs 100 per patient in an evening private clinic, under Prevention of Corruption Act and Section 168 of the Indian Penal Code, under which it is an offence for a government servant to engage in a trade.

As the Punjab government had banned private practice by doctors in its employment, the police booked the two in April 2003 for charging fee from patients. The bench said at best it could amount to breaching a government order making them liable for departmental action.

Supreme Court : Pvt practice by govt docs not corruption

From http://www.tribuneindia.com/2011/20110429/nation.htm#7

C: Pvt practice by govt docs not corruption
R Sedhuraman
Legal Correspondent

New Delhi, April 28
The Supreme Court today ruled that government doctors doing private practice cannot be booked for corruption or being engaged in unlawful trade.

A Bench comprising Justices Markandey Katju and Gyan Sudha Misra passed the verdict, while setting aside a Punjab and Haryana High Court judgment upholding a corruption case filed against two state government doctors posted in Koom Kalan in Ludhiana district.

An FIR had been lodged against Dr Rajinder Singh Chawla and Dr Kanwarjit Singh Kakkar on April 9, 2003 under the Prevention of Corruption Act (PCA) following a complaint by a person who claimed that the two doctors, while functioning from home, had charged him Rs 100 as prescription. According to the complainant, government doctors are not supposed to charge any fee from the patients and doing so amounts to corruption.

The SC Bench noted that under the PCA “corruption is acceptance or demand of illegal gratification for doing an official act. We find no difficulty in accepting the submission and endorsing the view that the demand/receipt of fee while doing private practice by itself cannot be held to be an illegal gratification as the same obviously is the amount charged towards professional remuneration.”

Further, it would be “preposterous in our view to hold that if a doctor charges fee for extending medical help and is doing that by way of his professional duty, the same would amount to illegal gratification as that would be even against the plain common sense.”

Government doctors would come under the purview of the PCA or other criminal offence if, for instance, they took money for admitting patients in government hospital or prescribed unnecessary surgery for the purpose of extracting money by way of professional fee and a host of other circumstances, the apex court noted.

The Bench also ruled that the accused doctors could not be booked even under Section 168 IPC for engaging in unlawful trade. “In our view, offence under Section 168 of the IPC cannot be held to have been made out against the appellants as the treatment of patients by a doctor cannot by itself be held to be engagement in a trade as the doctors’ duty to treat patients is in the discharge of his professional duty which cannot be held to be a trade so as to make out or constitute an offence.”

The accused doctors could be subjected only to departmental proceedings for violating government instructions that allowed private practice only with permission, the SC ruled.

Instructions of Director General of Police, Tamil Nadu

Office of the Director General of Police,
Admiralty House, Govt. Estate,
Anna Salai, Chennai - 600 002.

S.NO. 119825/1 &0/CON.97. -Dated : 27.05.97

MEMORANDUM

Instructions were issued in Chief office Memo vide (C.N.) 8523/1 & O Confd 1/91) dated 6.4.91 that when complaints of cognizable offences are received against Medical Practitioners relating to criminal negligence in the course of Medical treatment arrests need not be resorted to as a matter of course. It was also emphasized in the memo that when the Medical practitioner is involved in such police complaint the fact should be brought to the notice of higher supervisory Officers who will keep a close watch on the progress of the case to ensure that there is no vindictive or vexations action.

2. Inspite of these specific instructions an instance has come to notice where in a similar complaints of negligence on the part of a Medical Practitioners arrests have been made resulting in avoidable criticism against the Police. It is once again reiterated that in such cases arrests should not be resorted to as a matter of course. The cases will be duly investigated and any action should be fully supported by a documentary evidence, supervisory approval strengthened with the opinion of the Law office.

3. These instructions will be followed in future.

4. Please acknowledge the receipt.