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BISWAROOP ROY CHOWDHYURY v. DELHI MEDICAL COUNCIL & ORS.
Factual and Procedural Background
The petitioner, Biswaroop Roy Chowdhyury, challenged an order dated 28.09.2021 passed by the Delhi Medical Council (DMC), seeking a writ of mandamus declaring the order null and void on the ground that the DMC was not a competent authority to pass it. The background involves an FIR registered on 04.09.2019 at P.S. Vasant Kunj South, alleging that the petitioner impersonated a medical practitioner and promoted events claiming cures for diabetes and heart conditions. The complainant’s mother attended one of the petitioner’s camps, paid fees, and followed a prescribed diet which allegedly led to her suffering a heart attack and subsequent death. The police, upon registering the FIR, sought medical comments from the DMC. Based on the DMC’s opinion, additional sections of law were invoked against the petitioner. The petitioner contended that he is a nutritionist prescribing diets approved by the Ministry of AYUSH and not a medical practitioner under the Delhi Medical Council Act, and thus outside the DMC’s jurisdiction. The petitioner did not seek quashing of the FIR but only challenged the DMC’s order. Procedurally, the petitioner was given opportunities to appear before the DMC for hearings but failed to do so, citing COVID-19 related reasons.
Legal Issues Presented
- Whether the Delhi Medical Council had the jurisdiction and competence to pass the order dated 28.09.2021 in the present case.
- Whether the petitioner, being a nutritionist and not a medical practitioner as defined under the Delhi Medical Council Act, falls under the regulatory ambit of the DMC.
- The validity and legal effect of the DMC’s opinion sought by the police for investigation purposes.
Arguments of the Parties
Petitioner’s Arguments
- The order passed by the Delhi Medical Council is without jurisdiction as the petitioner is not a medical practitioner under Section 2(7) of the Delhi Medical Council Act, 1997.
- The petitioner does not practice Allopathic or Unani medicine but prescribes diets as a nutritionist, which are approved by the Ministry of AYUSH.
- The Drugs and Magic Remedies Act does not apply as it does not classify food as a drug.
- The petitioner was not advising or prescribing any medicines.
- The petitioner did not appear before the DMC for hearings due to COVID-19 related reasons but had informed the DMC telephonically.
Respondent’s Arguments
- The Delhi Medical Council only provided its opinion upon request by the Delhi Police for investigation purposes.
- The petitioner was not aggrieved by the DMC’s act but alleged collusion between DMC and complainant.
- The petitioner claims to practice AYUSH medicine but lacks registration with the Delhi Bhartiya Chikitsa Parishad.
- The petitioner is indulging in quackery by practicing medicine without recognized qualification or registration.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 | Guidelines for prosecution of doctors for criminal rashness or negligence; necessity of obtaining a competent medical opinion before registering FIR against doctors. | The Court held that the DMC’s opinion was sought by police in consonance with these guidelines and that such expert opinion is necessary for investigation. |
| Ramesh Dutt Sharma v. Medical Council of India, 2019 SCC OnLine Del 10373 | Recognition that the question of medical negligence falls within the peer review of medical councils; police reliance on opinions of MCI/DMC for FIR registration is valid. | The Court relied on this precedent to affirm that police can rely on DMC’s expert opinion when deciding to register an FIR. |
| Bolam Test, (1957) 1 WLR 582 | Standard for assessing medical negligence based on peer professional opinion. | Referenced in the context of expert opinion required to assess rashness or negligence of medical practitioners. |
Court's Reasoning and Analysis
The Court observed that the impugned order dated 28.09.2021 by the Delhi Medical Council was essentially an expert opinion requested by the Delhi Police to aid further investigation, not a final adjudicatory order. The DMC’s role was limited to providing medical expertise on the queries raised by the police. The Court noted that the DMC Act outlines the Council's powers and functions, which include maintaining a register of medical practitioners and taking disciplinary action against qualified practitioners but does not extend to persons outside its defined scope.
The Court emphasized that whether the petitioner qualifies as a medical practitioner under the Act is a matter to be determined during trial and not at the stage of challenging the DMC’s opinion. The Court referred extensively to the Supreme Court’s guidelines in Jacob Mathew which mandate obtaining expert medical opinion before registering FIRs involving allegations of medical negligence. The Court also cited its own earlier ruling in Ramesh Dutt Sharma upholding the validity of police reliance on medical council opinions.
The Court clarified that the police have discretion to consider or disregard the DMC opinion and may seek other expert opinions. The remedy for challenging the consequences of the DMC opinion, such as the FIR, lies in filing a petition for quashing the FIR rather than attacking the DMC’s opinion itself. The petitioner’s failure to appear before the DMC despite multiple opportunities was noted as detrimental to his case.
Holding and Implications
The Court dismissed the petition seeking to declare the Delhi Medical Council’s order as null and void.
The direct effect of this decision is that the DMC’s opinion, as sought by the police for investigation, stands valid and is not subject to challenge in this writ petition. The petitioner remains at liberty to pursue appropriate legal remedies, including challenging the FIR. No new precedent was established by this judgment; it affirms existing principles regarding expert medical opinion in criminal investigations involving allegations of medical negligence or malpractice.
W.P.(CRL) 2532/2021 Page 1 of 8 $~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 09.02.2023
+ W.P.(CRL) 2532/2021, CRL.M.A. 20463/2021, CRL.M.A. 18719/2022
BISWAROOP ROY CHOWDHYURY ..... Petitioner Through: Mr. Somnath Bharti, Mr. Prajanya Rathore, Advs.
versus
DELHI MEDICAL COUNCIL & ORS. ..... Respondents
Through: Ms. Nandita Rao, ASC CRL for State with Mr. Amit Peswani, Mr. Saransh, Advs. with SI Vikas Sahu, PS VK
South
Mr. Manu Sharma, Mr. Puneet
Parihar, Mr. Kartikey Masta, Advs. for R-2
Mr. Praveen Khattar, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JASMEET SINGH, J (ORAL)
1. This is a petition seeking writ of mandamus declaring the order of 28.09.2021 passed by Delhi Medical Council as null and void being a non- competent authority to pass the same.
2. In addition, the petitioner has also sought directions against illegal actions against respondent No. 1 in connivance with the complainant to defame him in the society.
3. Briefly stating the facts giving rise to the present petition is that an FIR was registered by the complainant, Mr. Jaideep Bihani on 04.09.2019,
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P.S. Vasant Kunj South stating that the petitioner herein is impersonating as a medical practitioner and promoting events which claim to cure Diabetes and make heart, attack proof.
4. He further states that placing reliance on the representations of the petitioner, he took his mother Shrimati Shanta Bihani to one of the camps of the petitioner to improve her diabetic condition and paid the fee as charged by the petitioner. Subsequently, the mother of the petitioner was prescribed a diet by the petitioner. It is further alleged in the FIR that on the advice of the petitioner, the mother of the petitioner was prevented from consuming her prescribed medicines
5. It is contended that due to the prescribed diet, the mother of the complainant suffered from a heart attack which led to her ultimate demise.
6. Owing to the aforesaid, the police registered the FIR. Subsequently, the police sent the FIR for medical comments/opinion to the Delhi Medical Council.
7. After obtaining opinion from the Delhi Medical Council, the Delhi Police added sections 3 and 7 of the Drugs and Magic Remedies Act (Objectionable Advertisement) Act, 1954 and Sections 26 and 27 of the Delhi Medical Council Act.
8. It is stated by Mr. Bharti, learned counsel for the petitioner that in the present case, the opinion of the Delhi Medical Council Act needs to be quashed as the petitioner is not a medical practitioner as defined u/s 2(7) of the Delhi Medical Council Act, 1997 or does not deal in medicine as defined in Section 2(a) of the Delhi Medical Counsel Act.
9. He further states that the Delhi Medical Counsel Act only exercises jurisdiction over the functions mentioned in Section 10 of the Delhi Medical
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Council Act.
10. He further submits that the petitioner neither practises Allopathic form of medicine nor Unani form of medicine. He only suggests lifestyle changes and is a nutritionist and as a nutritionist, the petitioner prescribes diets for a healthy living. It is also stated that his diets are approved by the Ministry of AYUSH.
11. Lastly, he submits that he is neither advising nor prescribing any medicines. The Drugs and Magic Remedy Act is not applicable as it does not include food as drug.
12. Mr. Khattar, learned counsel appearing for Delhi Medical Council states that in the present case, the Delhi Medical Council has only given its comments on the queries raised by Delhi Police.
13. It is stated by Mr. Khattar, ld. counsel for the respondent that the petitioner is not aggrieved by the act of Delhi Medical Council but that the Delhi Medical Council was allegedly acting in connivance with the complainant.
14. He further states that the petitioner in his response claims to be practising in AYUSH system of medicine but there is no registration with Delhi Bhartiya Chikitsa Parishad.
15. It is further stated that the petitioner is indulging in quackery by practising medicine without holding any recognized qualification or registration from concerned medical regulatory authority i.e. Delhi Bhartiya Chikitsa Parishad.
16. In the present case, the petitioner has not filed for quashing of the FIR. The limited prayer is to seek a direction declaring the order dated 28.09.2021 passed by Delhi Medical Council as being null and void.
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17. The DMC Act was enacted to provide for the constitution of the respondent DMC i.e. the Delhi Medical Council and the maintenance of a Register of medical practitioners engaged in the practice of modern scientific system of medicine in the National Capital Territory of Delhi and for matters connected therewith.
18. Section 10 of the DMC act prescribes the Powers, duties and functions of the Council, which inter-alia are:-
a. to maintain the live register and to provide for the registration of medical practitioners;
b. to hear and decide appeals against any decision of the registrar; c. to prescribe a code of ethics for regulating the professional conduct of practitioners;
d. to reprimand a practitioner, or to suspend or remove his name from the register, or to take such other disciplinary action against him as may, in the opinion of the Council be necessary or expedient; e. to exercise such other powers, perform such other duties and discharge such other functions, as are laid down in this Act, or as may be prescribed;
f. to receive complaints from public (including patients and their relatives) against misconduct or negligence by a medical practitioner, to proceed for inquest, take a decision on the merits of the case and to initiate disciplinary action or award compensation and similarly to take action against frivolous complaints;
g. to provide protection to its members in discharging professional duties;
h. to ensure that no unqualified person practices modem scientific
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system of medicine.
19. I am of the opinion that the alleged order dated 28.09.2021 of the Delhi Medical Council is an opinion of Delhi Medical Council, couched in the form of an order. However, it does not take away from the fact that the same was given only when the Delhi police had asked for it. The same is clear from a bare perusal of the impugned order dated 28.09.2021, which states as under:
"For further investigation, the Delhi Medical Council is requested to kindly opine.
1) Kindly opine whether the death of the patient Smt. Shanti Bihani can be caused by the diet prescribed by Shri Biswarooo Roy Chaudhary." (emphasis supplied)
20. From the above it is clear, that the Delhi Police asked for an opinion for further investigation. The same has been done in consonance with the guidelines laid down by the Hon'ble Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1
"52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer
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should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
21. The question whether the Petitioner is a medical practitioner or not is to be decided in trial. At the present stage, the Delhi police proceeded on a private complaint which had to be verified by a competent expert body.
22. This court in Ramesh Dutt Sharma v. Medical Council of India, 2019 SCC OnLine Del 10373, while referring to the Jacob Matthew (supra) has held
7. Mr. T. Singhdev and Mr. Khattar, learned counsel appearing for MCI and DMC respectively, submit that neither the MCI nor the DMC can render an expert opinion for the purposes of registering a criminal case. Be that as it may, it cannot be disputed that the question, whether a medical doctor has acted negligently, is clearly within the scope of peer review of DMC/MCI. Since the question whether there is professional negligence is to be examined by the qualified doctors, this Court finds no infirmity with the action of the police authorities in relying on the opinion/view expressed by DMC/MCI in determining whether an FIR is to be registered or not.
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8. In Jacob Matthew (supra), the Supreme Court had directed that before registering an FIR, the opinion of an expert and a competent doctor, preferably one who is in Government service, be obtained. Clearly, the Investigating Officer also has the option to obtain the medical opinion from other experts before registering an FIR. It is not mandatory for the police authorities to insist only on the opinion from DMC/MCI for the purpose of registering an FIR.
(emphasis supplied)
23. Therefore, it is clear that the Delhi police sought an opinion of the DMC. Now whether in the present case, the police authorities ought to have acted on the view expressed by DMC, is not the question before me. The Delhi Police can take into consideration/ disregard the said opinion and/or further take any medical opinion as they may deem fit. This Court is not competent to adjudicate on an opinion passed by a specialised body i.e. Delhi Medical Council. Even if the opinion of Delhi Medical Council has resulted in invocation of further sections, the remedy would lie in filing a petition for quashing the FIR and not to challenge the opinion of Delhi Medical Council Act.
24. In addition, these grounds agitated before me were available to the petitioner but the petitioner chose not to appear before the Delhi Medical Council Act.
25. On 01.03.2021, the petitioner was asked to present himself before the Delhi Medical Council Act. In response he wrote a letter dated 10.03.2021 giving his reply and asked for any date after 21.03.2021. The Delhi Medical Council on 26.03.2021 again called the petitioner for hearing on 06.04.2021 but the petitioner did not appear.
26. It is stated by Mr. Bharti that it was COVID times back then and that
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he had telephonically informed the Delhi Medical Council about the same.
27. Once opportunities were granted to the petitioner and the petitioner failed to appear the Delhi Medical Council, he did so at his own peril.
28. In this view of the matter, I am not inclined to entertain the present petition and the same is dismissed.
29. The petitioner is at liberty to take all appropriate legal action as may be advised.
JASMEET SINGH, J
FEBRUARY 9, 2023/dm
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