Decided on February 14,1946

EMPEROR Appellant

Referred Judgements :-



Leonard Stone, Kt. , C. J. - (1.)THIS is an application in revision from the decision of Mr. Ahmed I. Rahimtoola, Presidency Magistrate of the Sixth Additional Court, Mazagaon, Bombay, who convicted the applicant under Sections 32 and 34 of the Bombay Medical Practitioners' Act, 1938, and inflicted upon him a line of Rs. 25.The question involved is of considerable Importance, since we are informed that it may affect the position of a number of persons practising medicine in this Province.
(2.)PART III of the Bombay Medical Practitioners' Act in which both Sections 32 and 34 appear came into operation on November 1, 1944. Section 34 provides : Any person who acts in contravention of the provisions of Section 32 shall, on conviction, be punishable with fine which may extend to Rs. 100 for the first offence and to RS. 500 for every subsequent offence after his conviction for such first offence. And Section 32 is as follows: No person other than (i) a practitioner registered under PART II of this Act or (ii) a medical practitioner registered under the Bombay Medical Act, 1912, or (iii) a person whose name is entered in the list mentioned in Section 18 shall practise or hold himself out, whether directly or by implication, as practising for personal gain any system of medicine, surgery or midwifery : Provided that the Provincial Government may, by notification in the Official Gazette, direct that the provisions of this section shall not apply to any class of persons or in any specified area.
To these sections there are, however, certain exceptions which are set out in Section 36 which provide that nothing in Section 32 or 34 shall apply to any person: (a) who limits his practice to the art of dentistry, or (b) who being a nurse, midwife or health visitor registered, under the Bombay Nurses, Midwives and Health Visitors Registration Act, 1935, or a Dai attends on a case of labour, or (c) who is entitled to registration under Section 18 (1) of this Act or Section 7 of the Bombay Medical Act, 1912, or (d) who is a British subject domiciled in the United Kingdom or India who, by virtue of a medical diploma granted to him in the United Kingdom, or a British subject domiciled in Burma who, by virtue of a medical diploma granted to him in Burma or the United Kingdom is, or is entitled to be registered in the United Kingdom as a qualified medical practitioner ".

Sub-section (e) exempts those who practise homoeopathy and who have got certain qualifications therein mentioned. It should be observed that Sub-section (b) of Section 36 applies to a nurse, midwife or health visitor "registered" in the manner therein set out, whereas in Sub-section (c) it is any person who is "entitled to registration" under Section 16 (1) of the Act or Section 7 of the Bombay Medical Act, 1912, and that in Sub-section (d) it is a person who is "entitled to be registered" in the United Kingdom as a qualified medical practitioner.

(3.)BEFORE referring to the facts of this case and to the Bombay Medical Act, 1912, attention should be directed to the fact that in the 1938 Act itself a distinction is drawn between a person who is described as being "entitled to have his name entered in the register" [see Sub-section 16 (1 ). ] a person who is "qualified for registration" [see Sub-section 18 (b)] on the one hand and a "registered practitioner" (see Sections 19 and 20 of the Act) on the other.
The facts with regard to the applicant are as follows. In the year 1916 he qualified as a Licentiate in Medicine and Surgery of the Bombay University and as such he was in fact registered under the 1912 Act, to which I will presently refer. In September, 1924, his name was removed from the Medical Register, because he was found guilty of infamous conduct, and on June 30, 1925, July 16, 1926, and July 17, 1939, he made unsuccessful applications to the Medical Council to have his name restored to the register. At all material times he has continued to practise and in the year 1945 the police intervened and subsequently the charge in respect of which he has been convicted was brought against him.


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