Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1041         OF 2011 (Arising out of SLP (Crl.) No. 3449/2009)

KANWARJIT SINGH KAKKAR       ..Appellant   

Versus

STATE OF PUNJAB & ANR.               ..Respondents   

WITH

CRIMINAL APPEAL NO.  1042        OF 2011 (Arising out of SLP (Crl.) No.4010/2009)

DR. RAJINDER SINGH CHAWLA    ..Appellant

Versus

STATE OF PUNJAB & ANR.    ..Respondents

J U D G M E N T  

GYAN SUDHA MISRA, J.

Leave granted.

2. These  appeals  by  special  leave  had  been  filed  

against the order dated 2.4.2009 passed by the High Court  

of  Punjab and Haryana at  Chandigarh  in two  Criminal  

Miscellaneous Petitions Nos. M-15695/2007 and 23037-M

of 2007 for quashing FIR No.13 dated 9.4.2003 which was  

registered  for  offences  punishable  under  Section  13(1)(d)  

read with Section 13(2) of the Prevention of Corruption Act,  

1988 and under Section 168 of the Indian Penal Code, at  

Police  Station,  Vigilance  Bureau,  Ludhiana  but  were  

dismissed as the learned single Judge declined to quash the  

proceedings against the appellants.

3. Relevant facts of the case under which the two  

cases were registered  against the appellants disclose that  

the appellants are  Medical Officers working with the State  

Government   of  Punjab  against   whom  first  information  

report was registered  on the statement of informant/Raman  

Kumar alleging that he knew  the appellants Dr. Rajinder  

Singh  Chawla  who was  posted  as  Government  Doctor  at  

Dhanasu  and  Dr.  Kanwarjit  Singh  Kakkar  who  also  was  

serving as Government Doctor  in Koom Kalan in District  

Ludhiana.  It was alleged that both the doctors were doing  

private  practice  in  the  evening  at  Metro  Road,  Jamalpur  

and charged Rs.100/- in cash per patient as prescription  

fee.  While Dr. Rajinder  Singh Chawla checked the blood  

pressure  of  the  patients  Dr.  Kanwarjit  Singh  issued  

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prescription  slips  and  medicines  to  the  patients  after  

checking  them properly  and charged  Rs.100/-  from each  

patient.   The  complainant  Raman  Kumar  got  medicines  

from the two doctors regarding his ailment and the doctor  

had charged Rs.100/- as professional fee from him.  The  

informant  further  stated  in  his  FIR  that  as  per  the  

government instructions, the government  doctors  are not  

supposed to charge any fee from  the patients for checking  

them  as  the  same  was  contrary  to  the  government  

instructions.   In  view  of  this  allegation,  a  raid  was  

conducted at the premises of both these doctors and it was  

alleged that they could be nabbed  doing private practice as  

they  were   trapped  receiving  Rs.100/-  as  consultation  

charges from the complainant.   On the basis of this, the  

FIR  was  registered  against  the  appellants  under  Section  

13(1)(d)   read  with  Section  13(2)  of  the  Prevention  of  

Corruption  Act  and  under  Section  168,  IPC  which  has  

registered at Police Station Vigilance Bureau, Ludhiana.   

4. As  already  stated,  the  appellants  felt  aggrieved  

with the case registered against them and hence filed two  

Criminal  Miscellaneous Petitions for   quashing FIR No.13  

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dated April  9,  2003 before the High Court of  Punjab and  

Haryana at Chandigarh wherein counsel for the appellants  

contended that  no offence is made out from the allegations  

in the FIR even as it stands.  Substantiating the arguments,  

it was submitted that neither  any medical instrument was  

recovered  nor  any  apparatus  or  blood  pressure  checking  

machine  or  even  thermometer  was  recovered  from  the  

residence  of  the  appellants.   It  was  explained  that  the  

complainant had come to the house of  Dr. Kanwarjit Singh  

Kakkar   which  was  under  renovation  and  requested  for  

treatment.  It was added that on humanitarian grounds, the  

appellant  just scribbled down the prescription on a plain  

paper  which  does  not  even   bear  the  signature  of  the  

appellant.

5. It was also contended  by learned counsel for the  

appellants  that  there  is  no  law  prohibiting  government  

doctor from doing any act on humanitarian ground and the  

appellants  could   be  alleged  to  have  indulged  in  private  

practice only if they have deviated from the rules laid down  

by the State Government in this regard.  In the alternative,  

it was contended that even if there is   a deviation  from  

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these  rules  prohibiting  private  practice  by  government  

doctors  contrary  to  the  government  instructions,  it  could  

warrant   initiation  of  departmental  proceeding  and  the  

punishment under the  Punjab Civil Services (Punishment  

and Appeal) Rules and not  under IPC much less under the  

Prevention of Corruption Act.

6. The learned single Judge, however, was pleased  

to dismiss the Criminal Miscellaneous Applications refusing  

to  quash the  FIR relying  on Rule  15 of  the  Punjab Civil  

Medical (State Service Class I) Rules, 1972.  As per Rule 15  

of  the   said  Rules,  the  Government  may  by  general  or  

special order  permit any member of the Service to engage in  

private service on such terms and conditions  and subject to  

such restrictions and limitations as may be specified in the  

order  provided  that   such  practice  does  not  in  any  way  

interfere with the discharge of his  or their official duties.  

Rule 15 of the aforesaid Rules states as follows:

“15.  Private  Practice: (1)  The  Government  may, by general or  special order, permit any  member of the Service to engage  in private  practice  on such terms and conditions and  subject  to  such  restrictions  and  limitations  as may be  specified in the order,  provided  that  such  practice  does  not  in  any  way  

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interfere with the discharge of his  or their  official duties.

(2) Nothing  contained herein shall be  construed to limit  or abridge the power of the  Government  at any time to  withdraw such  permission or to modify the terms on which it  is granted without assigning any cause and  without payment of compensation.”

7. The  relevant  question  which  requires  

determination in these appeals is whether  a government  

doctor alleged to be doing practice can be booked within the  

ambit and purview of the Prevention of Corruption Act or  

under  Indian Penal  Code,  or  the  same would  amount  to  

misconduct  under  the  Punjab  Civil  Medical(State  Service  

Class  I)  Rules,  1972  under   Rule  15  which  has  been  

extracted above.

8. Learned  counsel  for  the  appellants  submitted  

that the FIR was fit to be  quashed as the  case against the  

appellants  who  admittedly  are  government  doctors  could  

not  have been registered under IPC or the Prevention of  

Corruption Act as Section 7 of the Prevention of Corruption  

Act explains  ‘corruption’ as acceptance or ‘demand’ illegal  

gratification for doing any official act’.   It was submitted  

that   the  demand/receipt   of  ‘fee’  while  doing  private  

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practice is not an illegal gratification for official duties.  It  

was  further  submitted  that  even Section  13(1)(d)   of  the  

Prevention of Corruption Act does not apply since the main  

ingredients of this Section are:

(a) the accused must be a   public servant at the time of  

the offence;  

(b) he must have used corrupt or illegal means and obtain  

for himself or  for any other person any valuable or  

pecuniary advantage;  or  

(c)  he must have abused his position as a public servant  

and  have  obtained  for  himself  and  for  any   other  

person any valuable thing or pecuniary  advantage; or

(d)  while holding such office  he must have obtained  for  

any  other  person  any  valuable   thing  or  pecuniary  

advantage  without any motive.

9. Learned  counsel  for  the  respondents   however  

repelled  the arguments advanced in support of the plea of  

the   appellants  and it was contended that the provisions of  

Prevention  of  Corruption  Act  clearly  apply  as  the  

government  doctors  in  the  State  of  Punjab  have  been  

specifically  prohibited  to  carry  private  practice  under  the  

departmental rules and as such the act of the appellants  

were illegal.

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10. By way of a rejoinder, it  was again submitted  by  

the counsel for the appellants that it is the ‘departmental  

rules’  which bar private practice  by a government doctor,  

hence action if any, is liable to be initiated/taken under the  

departmental  rules  which  in  the  present  case  are  the  

Punjab Civil Services (Punishment and Appeal) Rules.  Rule  

15 of the Punjab Civil Medical (State Service Class I) Rules,  

1972  states  that  a  government  doctor  may  engage  in  

practice with prior permission from the government.  It was  

still  further submitted that the FIR against the appellant  

has also been registered under  Section 168 of the Indian  

Penal Code  which states  as follows:

“168.  Public  servant  unlawfully  engaging  in  trade.—Whoever,  being a public  servant  and   being  legally  bound  as  such  public  servant  not  to  engage  in  trade,  engages  in  trade,  shall  be  punished  with  simple  imprisonment  for a term which may extend  to one year, or with fine, or with both.”

It was submitted that  this Section makes it amply  clear  

that  ‘private  practice’  cannot  be  termed  as  ‘trade’,  as  

accepting of  ‘fee’,  does not involve profit making  which is  

an essential  ingredient  of the  term ‘trade’ as held in State   

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of  Gujarat vs.  Maheshkumar  Dheerajlal  Thakkar1. The  

counsel  further  took  assistance  from  the  Punjab  

Government Vigilance  Department ( Vigilance -3 Branch)  

which  vide   Memo  No.  53/168/02-54/20094dated  

23.12.2004  (T)  instructed   the  Chief  Director,  Vigilance  

Bureau, Punjab, Chandigarh  on 19.1.2005, that the cases  

pending against the government teachers for holding tuition  

classes should be withdrawn as these cases do not come  

within the purview of the Prevention of Corruption Act as  

fees demanded/accepted by a teacher in view of teaching  

private  tuition  classes  can  neither  be  termed  as  a  

corruption   nor  can  it  be   said  to  be  a  demand  for  

remuneration for some official act.  It was submitted  that  

this principle needs to be applied on all professionals on the  

basis of the principle of equity.  The counsel also  submitted  

on the merit of the case  given out in the FIR, by urging that  

the appellants although wrote down  the prescription  on a  

plain paper for the complainant who had approached him  

for  medical assistance  at about 8.30 p.m. on 9.4.2003, he  

obliged him merely on humanitarian grounds and the raid  

which  was  conducted  on  the  appellant’s   premises,   no  1 AIR 1980 SC 1167

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recovery   of   medical  instruments  or  medical  apparatus  

was made.  It was, therefore,  contended that the impugned  

order of the High Court  refusing to quash the FIR against  

the appellants is liable to be set aside and the FIR against  

the  appellants  should  be  quashed  as  the  FIR   alleging  

private  practice   by  the  government  doctors/appellants  

herein  is  not  criminal  in  nature  but  at  the  most  would  

amount  to   a  deviation from the  departmental  rules  and  

hence  at the most,  it could be dealt with under the Punjab  

Civil Services (Punishment and Appeal) Rules only.   

11. On a critical analysis of the arguments advanced  

in the light of the  definition of  ‘corruption’ defined under  

the Prevention of Corruption Act in its Preamble  and under  

Section 7 of the Act, it clearly emerges that ‘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.  It would  be preposterous  in our view to  

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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.  If  however,  for the sake  

of assumption, it were alleged that the doctor while doing  

private  practice  as  Government  doctor  indulged  in  

malpractice  in any manner as for instance took money by  

way of illegal gratification for admitting the patients in the  

government hospital  or any other offence of criminal nature  

like  prescribing unnecessary surgery for the purpose  of  

extracting money by way of professional fee and a host of  

other circumstances, the same  obviously would be  a clear  

case   to  be  registered  under  the  IPC  as  also  under  the  

Prevention of Corruption Act which is not  the case in the  

instant  matter.   The  FIR  sought  to  be  quashed,  merely  

alleges that the appellants were indulging in private practice  

while  holding  the  post  of  government  doctor  which  

restrained  private  practice,  and  charged  professional  fee  

after examining  the patients.  

12. We however, came across  a case  of Raj Rajendra  

Singh Seth alias  R.R.S. Seth vs.  State of Jharkhand And  

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Anr.2, wherein  a doctor  who had demanded Rs.500/- for  

giving proper medical treatment  to the complainant’s father  

resulted in conviction of the doctor as it  was held in the  

circumstances of the said case that all the requisites  for  

proving  demand  and  acceptance  of  bribe  were  clearly  

established  and  the  appellant  therein  was   held  to  have  

been  rightly convicted.  However, the prosecution version in  

the said case disclosed that a  written complaint was made  

to SP., CBI, Dhanbad that on 1.9.1985 one Raju Hadi, a  

Safai Mazdoor of the Pathological Laboratory Area -9, BCCL,  

Dhanbad,  alleged  therein  that  he  had  visited  Chamodih  

Dispensary  in connection with  the treatment of his father  

who was examined by  Dr.  L.B.  Sah who referred him to  

Central Hospital, Dhanbad.  The complainant’s father  was  

admitted  in  the  Central  Hospital   and  the  complainant  

visited his ailing father  who complained of  lack of proper  

treatment   and  he  requested  him  to  meet  the   doctor  

concerned.  The complainant met Dr. R.R.S. Seth  who was  

treating  the  complainant’s  father.   It  was  alleged  by  the  

complainant therein that Dr. R.R.S. Seth  demanded a sum  

of  Rs.  500/-  from  the  complainant   for  giving  proper  2 (2008) 11 SCC 681

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medical treatment  to his father  and also insisted that the  

amount be paid to the doctor on 1.9.1985.  The doctor also  

told  the  complainant  Raju Hadi  that  in  case  he  was not  

available  in the hospital, he should pay the amount to his  

ward boy Nag Narain who would pass the amount to him.  

Since the  complainant Raju Hadi was not  willing to make  

the payment of bribe amount  to the doctor and ward boy,  

he  lodged a complaint to the SP, CBI, Dhanbad for taking  

necessary action.    

13. On the basis of this  complaint, which was finally  

tried and resulted into conviction, came up to this Court  

(Supreme Court) challenging the conviction.  This conviction  

was upheld by this Court as it was held therein that there is  

no case of the  accused  that the said amount   was received  

by him  as the amount which he was  legally entitled to  

receive or collect from the complainant.  It was, therefore,  

held that  when the amount is found to have been passed to  

the  public  servant,  the  burden  is  on  public  servant  to  

establish that it was not by way of  illegal gratification.  This  

Court held that the  said burden  was not discharged  by  

the  accused  and hence   it  was held that all the requisites  

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for proving the demand and acceptance of bribe had been  

established and hence interference  with the conviction and  

sentence was refused.  The learned Judges in this matter  

had  placed  reliance  on  the  case  of  B.  Noha vs.  State  of  

Kerala3, wherein this Court  took notice of the observations  

made in the said case at  paras 10 and 11 wherein it was  

observed as follows:  

“………….When  it  is  proved  that  there  was voluntary and conscious acceptance  of  the money, there is  no further burden cast  on  the  prosecution  to  prove  by  direct  evidence, the demand or motive.  It has only  to  be  deduced  from  the  facts  and  circumstances  obtained  in  the  particular  case.”

14. The  learned  Judges  also  took  notice  of  the  

observations made by this Court in  Madhukar Bhaskarrao  

Joshi vs.  State of Maharashtra,4 (2000) 8 SCC 571 at 577,   

para 12  wherein it was observed that  

“The premise to be established on the facts  for  drawing  the  presumption  is  that  there  was  payment or acceptance of gratification.  Once  the  said  premise  is  established,  the  

3 (2006) 12 SCC 277 4 (2000) 8 SCC 571

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inference  to  be  drawn  is  that  the  said  gratification  was  accepted  “as  motive   or  reward”  for  doing  or  forbearing   to  do  any  official act.  So the  word “gratification” need  not  be  stretched  to  mean  reward  because  reward  is  the  outcome  of  the  presumption  which the court has to draw on the factual  premise  that  there  was  payment  of  gratification.  ……………………………………… …..If  acceptance of any valuable  thing can  help  to  draw  the  presumption  that  it  was  accepted  as  motive  or  reward  for  doing  or  forbearing  to  do  official  act,  the  word  “gratification” must be treated in the context  to  mean   any  payment   for  giving  satisfaction   to  the  public  servant  who  received it.”  

This decision was followed  by this Court in  M. Narsinga  

Rao  vs.  State of A.P5..

Thus in all the cases referred to hereinabove, the amount  

received was held to  be by way of   gratification as there  

could  be  no   escape  from  the  conclusion  that  it  would  

amount to corruption within the meaning of Prevention of  

Corruption Act as also the offence under the IPC.  

15. But the most important  and vital  check before a  

public  servant  can  be  booked  under  the  Prevention  of  

Corruption Act, the ingredients  of the  offence will have to  

be deduced from the facts and circumstances obtained  in  

5 (2001) 1 SCC 691

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the particular case.  Judging the case of the appellants on  

this  anvil,  it  is  not difficult  to  notice  that in the  case at  

hand,  the  amount  that  is  alleged to  have  been accepted  

even as per  the allegation  of the complainant/informant  

was not by way of gratification for doing any favour to the  

accused,  but  admittedly  by  way  of  professional  fee  for  

examining  and  treating  the  patients.   However,  no  

presumption can be drawn that  it was accepted as motive  

or reward for doing or  forbearing  any official act  so as to  

treat the  receipt of professional fee as gratification much  

less illegal gratification.  The professional fee even as  per  

the case of the complainant/informant  was that this act on  

the  part  of  the  accused appellants  was,  contrary  to  the  

government circular and the circular itself  had a rider in it  

which stated that the government doctor  could do private  

practice  also,  provided  he  sought  permission  from  the  

government  in  this  regard.   Thus  the  conduct  of  the  

appellants  who  are  alleged  to  have   indulged  in  private  

practice  while holding the office of government doctor  and  

hence public servant at the most, could be proceeded with  

for departmental proceeding under the Service Rules but in  

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so  far  as  making  out  of  an  offence  either  under  the  

Prevention of  Corruption Act or under the IPC, would be  

difficult  to  sustain  as  we  have  already  observed  that  

examination  of  patients  by  doctor  and  thereby  charging  

professional fee, by itself, would not be an offence but  as  

per  the  complaint,   since  the  same  was  contrary  to  the  

government circular which instructed that private practice  

may be conducted by the government doctors in the State of  

Punjab  provided  permission  was  sought  from  the  

Government  in  this  regard,  the  appellants  were  fit  to  be  

prosecuted. Thus, the appellants even as per the FIR as it  

stands, can be held to have violated only the government  

instructions which itself has not termed private practice as  

‘corruption’ under the Prevention of Corruption Act merely  

on account of charging fee as the same in any event was a  

professional fee which could not have been charged since  

the  same   was  contrary  to  the  government  instructions.  

Thus, if a particular professional discharges the duty of a  

doctor,  that  by  itself  is  not  an  offence  but  becomes  an  

offence  by  virtue  of  the  fact  that  it  contravenes  a  bar  

imposed by a circular or instruction  of the government. In  

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that event, the said act clearly would fall within the ambit  

of misconduct to be dealt with under the Service Rules but  

would not constitute criminal offence under the Prevention  

of Corruption Act.  

16. However, the question still remains whether the  

indulgence in private practice would amount to indulgence  

in ‘trade’ while holding the post of a government doctor and  

hence an offence under Section 168 of the IPC, so as to hold  

that it constitutes a criminal offence in which case that FIR  

could be held to have made out a prima facie case against  

the appellants under Section 168 of the IPC on the ground  

that  the  appellants  who  are  public  servants  unlawfully  

engaged in trade.  In our view, offence under Section 168 of  

the IPC cannot be held to have been made out against the  

appellants  even  under  this  Section  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 under Section 168 of the IPC.  As already stated,  

there  may  be  cases  of  doctors   indulging   in  cases  of  

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medical negligence, demand or accept amount in order to  

incur favour  on the patients which would amount to illegal  

gratification   and  hence  ‘corruption’,  and  in  such  cases  

offence  can  most certainly be held to have been made out  

under  the  Prevention  of  Corruption  Act  also.   Cases  of  

unlawful  engagement  in trade by  public servants can also  

be held  to be made out under Section 168 of the IPC if the  

facts of a particular  case indicate  that besides professional  

discharge of duty  by the doctor, he is indulging in trading  

activities  of innumerable nature which is not expected of a  

medical professional as was the fact in the case referred to  

herein before.  But if the medical professional  has acted in  

a   manner  which  is  contrary   only  to  the  government  

instructions  dehors any  criminal  activity  or  criminal  

negligence, the same would not constitute  an offence either  

under the IPC or  a case of corruption under the Prevention  

of Corruption Act.  In our considered view, the allegation  

even as per the FIR as it stands in the instant case, do not  

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constitute  an  offence  either  under  the  Prevention  of  

Corruption Act or under Section 168 of the IPC.     

17.  For the reasons discussed hereinbefore,  we are  

pleased  to  set  aside  the  impugned orders  passed  by  the  

High  Court   and  quash  the  FIR  No.13  dated  9.4.2003  

registered against the appellants as we hold that no prima  

facie case either under Section 168 of the IPC or Section 13  

(1)(d) read with 13(2) of the Prevention of Corruption Act is  

made out under the prevailing facts  and circumstances  of  

the case and hence proceeding in the FIR registered against  

the  appellants  would  ultimately  result  into  abuse  of  the  

process of the Court as also   huge wastage of time and  

energy  of  the  Court.    Hence,  the  respondent  –  State,  

although may be justified if it proceeds   under the Punjab  

Civil  Services (Punishment and Appeal)  Rules against the  

appellants  initiating action for misconduct, FIR registered  

against them under IPC or Prevention of Corruption Act is  

not fit to be sustained.  Consequently, both  the appeals are  

allowed.

…………………………….J                                     (MARKANDEY KATJU)      

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…………………………….J (GYAN SUDHA MISRA)     

New Delhi, April 28, 2011

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