SANJAY MANOHAR KUMBEPHALKARversusTHE STATE OF MAHARASHTRA AND ANOTHER

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

               CRIMINAL APPLICATION NO. 2000 OF 2024

Sanjay s/o Manohar Kumbephalkar                        .. Applicant

versus

The State of Maharashtra & another                     .. Respondents

Mr. G. L. Deshpande, Advocate for the Applicant.
Mr. N. R. Dayama, APP for the State.
Mr. S. T. Jadhav, Advocate holding for Mr. P. D. Suryawanshi,
Advocate for Respondent No. 2.

                              CORAM : R. M. JOSHI, J.
                         RESERVED ON : 19th August, 2026.
                       PRONOUNCED ON : 24th August, 2026.
ORDER :


1.     This application is filed under Section 482 of Code of Criminal

Procedure seeking quashment of First Information Report in Crime

No.    200/2022    registered   with      Majalgaon    City   Police   Station,

Majalgaon, Dist. Beed for the offences punishable under Sections 420

of    Indian   Penal   Code,    Section    33   of    Maharashtra      Medical

Practitioners Act and Sections 18(c), 18(a)(i), 27(b) of Drugs and

Cosmetics Act, charge-sheet No. 87/2022 dated 18.07.2023 and

consequential proceeding bearing RCC No. 241/2022 pending with

Joint Judicial Magistrate First Class, Majalgaon.
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2.    First informant, Medical Officer, PHC Sadola, lodged report

with the concerned police station informing that in order to find out

bogus doctors, a team was formed.           The Tahsildar, Majalgaon,

informed the informant about Sankalp Vyasanmukti Kendra, run by

present Applicant and the people being cheated therein. Accordingly,

informant and the team visited the spot on 11.08.2022 at about

11.00 am.       According to the informant, it was found that the

Applicant had no medical licence to treat the patients. At the spot, it

was found that 16 patients were being treated and Allopathy

medicines including IV fluids etc. were found.       Offence, therefore,

came to be registered against the Applicant.



3.    Learned Counsel for the Applicant submits that the offences

though are charged under the provisions of Maharashtra Medical

Practitioners   Act   so   also   Drugs   and   Cosmetics   Act,   unless

appropriate procedure is followed as contemplated therein, no

criminal proceeding could be initiated against the Applicant. It is his

contention that the relevant provisions of the said Act prohibit

lodging of First Information Report and only on the basis of the

complaint lodged by the competent authority/authorised officer, no

cognizance of the said offence can be taken. According to him the
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provisions of Maharashtra Medical Practitioners Act, do not apply to

the present case, since Applicant never treated any inmate of centre

neither manufactured, sold or distributed any drugs/medicines. It is

his submission that though there is allegation against the Applicant

that he cheated the patients, it is his contention that on the basis of

material on record, more particularly statements of doctor as well as

patients, no offence of cheating is made out against the Applicant. It

is his further submission that since the only cognizable offence

under Section 420 of Indian Penal Code is not made out, rest of the

offences cannot be allowed to be treated by the Trial Court.

According to him, though there are no allegations against the present

Applicant as regards contravention of provisions of Mental Healthcare

Act, 2017, however, since arguments are made on behalf of

prosecution to that effect about powers of the Court to frame charge

under the said provisions, no First Information Report could have

been lodged in respect of the offence under the said Act. Since these

offences are punishable with fine only, they become non-cognizable

in nature. It is his submission that in the circumstances it would be

unjust to call upon the Applicant to undergo the rigors of criminal

trial.   It is his further submission that the provisions of Mental

Healthcare Act are not attracted to the present case.
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4.    Learned APP and learned Counsel for the informant opposed

the application firstly by submitting that the offence is serious in

nature as the Applicant is undertaking treatment of patients without

any licence and causing harm to the patients. Secondly, it is their

submission that there is evidence on record to indicate that the

Applicant has not registered himself under the provisions of Mental

Healthcare Act and also the treatment is not being extended to the

patients by Medical Officer competent to extend such treatment. This

fact, according to them, clearly indicates about offence of cheating

being committed by the Applicant.      It is their submission that the

provisions of Drugs and Cosmetics Act as well as Maharashtra

Medical Practitioners Act are rightly invoked in the instant case.

Attention of the Court is drawn to the provisions of Section 154(4) of

Code of Criminal Procedure indicating that when non-cognizable

offence has been charged along with cognizable offence, it is open for

the investigating agency to investigate into such non-cognizable

offence so also the Trial Court would get jurisdiction to try the same.

It is their submission that since the offences under Section 420 of

Indian Penal Code as well as offence under Medical Practitioners Act,

which are cognizable in nature are attracted in the present case,

there is no justification to quash the proceeding.
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5.    At the outset, it would be useful to refer to judgment of Hon’ble

Supreme Court in case of State of Haryana and others Vs. Bhajan Lal

and others, 1992 SCC (SUPP) 1 335, which gives guidelines for the

decision   of   quashment     of   criminal   proceedings.      Relevant

observations made therein read thus :

     “ 102. In the backdrop of the interpretation of the various
     relevant provisions of the Code under Chapter XIV and of
     the principles of law enunciated by this Court in a series of
     decisions relating to the exercise of the extraordinary power
     under Article 226 or the inherent powers under Section 482
     of the Code which we have extracted and reproduced above,
     we give the following categories of cases by way of
     illustration wherein such power could be exercised either to
     prevent abuse of the process of any court or otherwise to
     secure the ends of justice, though it may not be possible to
     lay down any precise, clearly defined and sufficiently
     channelised and inflexible guidelines or rigid formulae and
     to give an exhaustive list of myriad kinds of cases wherein
     such power should be exercised.
     (1) Where the allegations made in the first information report
     or the complaint, even if they are taken at their face value
     and accepted in their entirety do not prima facie constitute
     any offence or make out a case against the accused.
     (2) Where the allegations in the first information report and
     other materials, if any, accompanying the FIR do not
     disclose a cognizable offence, justifying an investigation by
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police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out
a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code of the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.”
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      Keeping in mind these observations, facts of the case are

assessed.



6.    Perusal of the First Information Report indicates that the

allegation against the present Applicant is that he is running a de-

addiction centre without registration. It is alleged that the Applicant

has cheated the patients. On the basis of the arguments advanced

on behalf of the prosecution, it seems that the prosecution has

sought to make out a case that since there is no registration of the

said de-addiction centre under the Mental Healthcare Act, so also

since the treatment has not been extended by a competent doctor, it

becomes an offence of cheating. At this stage, it would be relevant to

take note of the provisions of Indian Penal Code. The word ‘Cheating’

is defined thus :-

      “Whoever, by deceiving any person, fraudulently or
      dishonestly induces the person so deceived to deliver
      any property to any person, or to consent that any
      person shall retain any property, or intentionally induces
      the person so deceived to do or omit to do anything
      which he would not do or omit if he were not so
      deceived, and which act or omission causes or is likely to
      cause damage or harm to that person in body, mind,
      reputation or property, is said to “cheat”.
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      The above provision clearly indicates that the consideration for

offence of cheating is that there should be intention of the accused

since inception to cause loss to the victim and to have unlawful gain

for himself.   Perusal of the charge-sheet indicates that there are

statements recorded of Dr. Patki as well as patients indicating that no

treatment was extended by the present Applicant to the patients but

the treatment is given by a registered Medical Practitioner.        The

advertisement, which forms part of charge-sheet also clearly not only

names the treating documents but also shows the educational

qualifications. Apart from this, none of the witnesses claim that they

were assured of treatment by a particular doctor or a doctor holding

any requisite/specific qualification and against the said assurance,

they agreed to pay money to the Applicant. In absence of any such

statement on record, it is not possible to attribute offence of cheating

against the present Applicant.



7.    In so far as the offence punishable under Section 33 of

Maharashtra Medical Practitioners Act is concerned, it would be

necessary to take note of relevant provisions of the said Act, which

read thus:
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Section 2(2) : For the purposes of Chapter VI, a person
shall be deemed to practice any system of medicine who
holds himself out as being able to diagnose, treat, operate,
or prescribe medicine or other remedy or to give medicine
for any ailment, disease, injury, pain, deformity or
physical    condition   or   who,   by     any   advertisement,
demonstration, exhibition or teaching offers or undertakes,
by any means or method whatsoever to diagnose, treat,
operate or prescribe medicine or other remedy or to give
medicine for any ailment, disease, injury, pain, deformity
or physical condition :
        Provided that, a person who, -
(i)     mechanically fits or sells lenses, artificial eyes,
limbs or other apparatus or appliances; or
(ii)    is engaged in the mechanical examination of eyes
for the purpose of constructing or adjusting spectacles,
eye-glasses or lenses; or
(iii)   practices   physiotherapy     or    electrotherapy   or
chiripody or naturopathy or hydropathy or yogic healing;
or
(iv)    without personal gain furnishes medical treatment
or does domestic administration of family remedies; or
(v)     being registered under the Dentists Act, 1948, limits
his practice to the art of dentistry; or
(vi)    being a nurse, midwife or health visitor registered or
enlisted under the Bombay Nurses, Midwives and Health
visitors Act, 1954, or any other corresponding law for the
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      time being in force in the State or a Dal attends on a case
      of labour,
             shall not be deemed to practice medicine;
             Explanation :- In this sub-section -
      (i)    “advertisement” includes any word, letter, notice,
      circular, picture, illustration, model, sign, placard, board or
      other document and any announcement made orally or by
      any means of producing or transmitting light sound,
      smoke or other audible or visible representation; and
      (ii)   “physio-therapy” means treatment of any ailment,
      disease, injury, pain, deformity or physical condition, by
      message or other physical means, but does not include
      bone-setting.



     This provision indicates that for application of Chapter VI of

the Act, the person should hold himself out as being able to

diagnosis, treat, operate etc. or advertises so.       Thus, in order to

attract the said provision there must be evidence to show that such

person claimed himself to treat the patients. Perusal of charge-sheet

does not show any material to indicate so. None of the statements of

witnesses depict the Applicant himself posing to be person who

would treat the patients.     Even advertisement brought on record

shows that treatment would be extended by Doctors named therein.

Thus, the evidence collected during investigation and forming part of
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charge-sheet, even if accepted to be correct, no offence punishable

under Section 33 of the Medical Practitioners Act, is made out

against the Applicant.



8.    In so far as invocation of Drugs and Cosmetics Act, is

concerned, Section 18(a) of the Act reads thus :-

     Section 18 : Prohibition of manufacture and sale of certain
     drugs and cosmetics :
            From     such date as may be fixed by the State
     Government by notification in the Official Gazette in this
     behalf, no person shall himself or by any other person on
     his behalf -
     (a) manufacture for sale or for distribution, or sell, or stock
     or exhibit or offer for sale, or distribute -
     XXX


      As far as the provisions of Section 18 are concerned, charge-

sheet shows no such offence is made out and there is no evidence to

establish offence under Section 18(a) since the Applicant was neither

manufacturing nor distributing the said medicines.



9.    Even if it is accepted that a Medical Practitioner having

qualification of MBBS only can treat such patients, at the most, it

will be contravention of provisions of Mental Healthcare Act.          The
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said provision indicates that the offence of such contravention is

punishable with fine only.        As such, this offence becomes non-

cognizable in nature.      It is, therefore, not open for the police to

investigate into said crime and it was mandatory that the competent

authority ought to have lodged a complaint with the Magistrate. Even

if the case of the prosecution is accepted that treatment was not

extended by a Medical Practitioner possessing qualification of MBBS,

it becomes contravention of provisions of Mental Healthcare Act and

nothing beyond that.



10.    Though in First Information Report there is no reference of

Mental Healthcare Act, 2017, as rightly argued by learned APP that it

would be open for the Trial Court to frame the charges under the

provisions of the said Act, in a given case, where there is prima facie

evidence on record.



11.    At this stage, it would be necessary to take note of Section 2(p)

of    the   Mental     Healthcare    Act      defines    Mental   Healthcare

Establishment, which reads thus :-

        (p) “mental healthcare establishment” means any health
        establishment,     including         Ayurveda,     Yoga   and
        Naturopathy,     Unani,     Siddha       and     Homoeopathy
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      establishment, by whatever name called, either wholly or
      partly, meant for the care of persons with mental illness,
      established, owned, controlled or maintained by the
      appropriate Government, local authority, trust, whether
      private or public, corporation, co-operative society,
      organisation or any other entity or person, where
      persons with mental convalescence and rehabilitation,
      either temporarily or otherwise, and includes any
      general hospital or general nursing home established or
      maintained    by   the   appropriate   Government,    local
      authority, trust, whether private or public, corporation,
      co-operative society, organisation or any other entity or
      person; but does not include a family residential place
      where a person with mental illness resides with his
      relatives or friends.”



12.   Section 2(s) defines Mental Illness as :-

      “mental illness” means a substantial disorder of thinking,

mood, perception, orientation or memory that grossly impairs

judgment, behaviour, capacity to reocgnise reality or ability to meet

the ordinary demands of life, mental conditions associated with the

abuse of alcohol and drugs, but does not include mental retardation

which is a condition of arrested or incomplete development of mind of

a person, specially characterised by sub-normality of intelligence.
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       Thus, an establishment which is meant for care of persons

with mental illness, which also includes a person having mental

conditions associated with the abuse of alcohol and drugs, is a

mental health establishment.



       The above definition indicates that a mental healthcare

establishment is any health establishment by whatsoever name

meant for care of persons but does not include any family residential

place where person with mental illness resides with relatives or

friends. Here, it is not the case of the Applicant that being relative or

friend, he is taking care of the patients. This Court, therefore, has no

hesitation to hold that a de-addiction centre like one in the present

case would be required registration under       Mental    Healthcare s

Act.



13.    There is allegation against Applicant of him not having

registration under Maharashtra Nursing Homes Registration Act.

Under Section 12 of the said Act, contravention of provisions of the

said Act, unless provided elsewhere, is punishable with fine of Rs.

5,000/-.   Section 13 provides for punishment to the offence by

Corporations. Section 6 makes non-registration of Nursing Homes as
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an offence punishable with imprisonment which may extend to six

months or with fine upto Rs. 10,000/-. Having regard to the nature

of punishment, the offences under this Act are non cognizable in

nature.



14.     Needless to emphasize that in view of the provisions of

Maharashtra     Nursing   Homes     Registration   Act,   non   medical

operations such as administration, finance etc. could be undertaken

by a non medical practitioner.    However, the overseeing of medical

management thereof must be with a person holding a degree in

medical sciences and qualified nurses employed therein. No case of

there being medical activities conducted by Applicant is sought to be

made out herein.



15.     Thus, this Court does not agree with the submissions of

learned Counsel for Applicant that provisions of Mental Healthcare

Act and Maharashtra Nursing Home Act, do not apply to the present

case.     It is held that having regard to the nature of treatment

extended to the patients the de-addiction centre must have

registration under Maharashtra Nursing Homes Registration Act,

1949 as well as Mental Healthcare Act, 2017.
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16.   In view of the above facts, once it is held that the offences of

cheating, Medical Practitioners Act as well as Drugs and Cosmetics

Act are not made out, all other offences remain non-cognizable in

nature.   It was, therefore, not open for the investigating agency to

carry out investigation into the said crime and the procedure as

prescribed in the relevant law had to be adopted. Consequently,

Applicant cannot be called upon to undergo rigors of trial.

Application, therefore, is   accordingly allowed in terms of prayer

clauses ‘B’ and ‘F’. It is however clarified that above order shall not

come in way of the authorities to take/initiate action against the

Applicant in accordance with law.



                                                 ( R. M. JOSHI, J.)
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