Judgment & Order (C.A.V)

1. Heard Mr. P Mahanta, learned Sr. counsel for the petitioner. Also heard Mr. A.M Bora, learned Sr. counsel appearing for the respondent No. 2.

2. This is an application under Section 528 of BNSS, 2023 for quashing of FIR No. 1811/2021 dated 07.08.2021 as well as charge-sheet being No. 760/2021 dated 31.08.2021 submitted by the I/O, Nagaon Police Station in the Court of Ld. Chief Judicial Magistrate, Nagaon in connection with Nagaon P.S Case No. 1811/2021 corresponding to G.R Case No. 4042/2021, subsequently, registered as PRC No. 2872/2021 under Section 417/419/420 IPC.

3. By order dated 04.09.2021, the Ld. Chief Judicial Magistrate, Nagaon has taken cognizance of offence u/s 417/419/420 IPC against the accused/petitioner.

4. The facts leading to the aforesaid case as projected by the petitioner are that he had completed his Bachelor in Dental Alternative Science (in short BDAS) from the Siyaldah Medical College of Alternative Medicine, whereafter, he duly applied before the North Eastern Council of Alternative Medicine, hereinafter referred as NECAM, for practicing his BDAS and accordingly, Registration Certificate was issued on 14.09.2021 in favour of the petitioner with the next date of renewal on 22.09.2021.Pursuant to the said certificate, the petitioner has been practicing dentistry in his chamber at A.I.C.H Medicos at M.D Road, Nagaon. The petitioner also claims to have completed his Bachelor of Dental Surgery Course from Maharana Pratap Dental College and Hospital, Kanpur affiliated to Chhatrapati Shahu Ji Maharaj University, Kanpur in the year 2018, the President and Registrar of Assam State Dental Council has issued a Dentist Registration Certificate being Certificate No. 2967-A dated 21/9/2019 valid upto March 2024 certifying the petitioner registered as DENTAL SURGEON in part -A of the Dentist Act, 1948, as amended and after duly council with the valid registration number, the petitioner has initially practiced his dentistry as BDS along with his line of practice BDAS with valid practicing registration no. NECAM/548/PR/2006 under NECAM at Gasbari, p.o- Mangaldoi in Darrang district, Assam. But after cancellation of his BDS registration certificate by the Assam State Dental council, the petitioner has not practiced his BDS, however, he is continuing his dentistry practice as BDAS under his practicing registration NECAM/548/PR/2006 issued under certificate of registration by the Registrar of NECAM. In addition to that, the petitioner also the member of a Indian Dental Association and in this regards, the Indian Dental Association has issued a Certificate in the name of the accused petitioner. That, the complainant i.e. Respondent No. 2 is the Registrar of Assam State Dental Council. That, on 26/7/2021, the complainant No. 2 wrote a letter to the Director General Of Police, Government of Assam inter alia stating that a complaint has been received from one Dr. (Eligible) Das of jagiraod regarding practicing dentistry as BDS by the accused petitioner for several years by obtaining registration certificate from the council on 21/9/2019 in a fraudulent manner by submitting manipulated and forged documents. After receiving the sad complaint, the complainant called the petitioner to the council along with his documents, on which the petitioner appeared before the council and claimed that he has passed his BDS from Maharana pratap Dental College and Hospital, Kampoo, Kanpur, uttar Pradesh. After knowing the said, the complainant wrote a letter to the principal of the said college and although, in response to the said letter the principal of Maharana pratap Dental College and Hospital, Kampoo, Kanpur initially denied the admission of the petitioner in the said college, but subsequently, the complainant has received an email on 3/5/2021 from the principal of the said college to the effect of issuing the letter dated 23/3/2021 by mistake. But, in the said email, as the spelling of college is mentioned as Cottage, the complainant asked for a hard copy which he didn't received. Further contention of the FIR was that, on verification, they have found that the accused has done 1 year compulsory Rotatory internship in General hospital at Ghaziabad, Uttar Pradesh and accordingly, the complainant requested the Dental Council Of India, New Delhi, whether the general Hospital is recognized by the DCI for undergoing mandatory internship, on which the DCI informed them that the said hospital is not recognized for internship, but the internship must be completed in a dental college Hospital. And after knowing the said, the council decided to cancel the registration obtained by the accused petitioner. Further it was stated that the council also filed a FIR at Bhangagarh Police station, Guwahati on 6/3/2021 vide office letter no. ASDC/12/09/060, which was registered as 149/2021 u/s 420/468/471 IPC and the accused petitioner was arrested in connection with the said case, but later on he was released on bail. The complainant No. 2 further stated that, as per Dental Act, 1948, по dentist can practice dentistry without a valid registration, but the accused petitioner is practicing Dentistry as before, which is not permitted and in the prescription, the accused petitioner has used a fake/forged Registration No. PR.548, but the council has never issued such a registration number and accordingly, he requested the Director General Of Police to take necessary action for closing the unauthorized dental clinic of the accused petitioner. On received of the said complaint, on 3/8/2021 the additional Sp (headquarter) was directed to get an enquiry caused into the compliant and ensure follow-up lawful action based upon finding and subsequently, the said complaint was forwarded to Nagaon Police station and upon receiving the same, the Officer In charge of Nagaon Police station registered a case being Nagaon P.S case No. 1811/2021 u/s 417/419/420/468 IPC against the accused petitioner. After registering the said case, the police of Nagaon police station conducted a search operation at the chamber of the accused petitioner at AICH MEDICO on 7/8/2021 and seized as many as 13 items vide seizure 1st MR No 357/21 and 358/21 respectively. The police of Nagon Police station also seized the original certificate of Bachelor of Dental Alternative Science, Siyaldah Medical College of AM issued by the Registrar, on 17/7/2003 vide registration No. 12356 in the name of the accused petitioner and one original To whom it may concern certificate issued by the Indian Institute of Paramedical Technology, in the name of the petitioner by the principal vide Ref No. IJPMT/2480021/09/2005 dated 2/9/2005 vide MR No. 359/21, on being produced by the accused petitioner.

5. It appears from the above that the respondent No. 2, who is the Registrar, Assam State Dental Council had cancelled the registration of the petitioner and filed an FIR at Bhangagarh Police Station on 26.03.2021 which was registered as Bhangagarh Police Station Case No. 149/2021 u/s 420/468/471 IPC, whereafter, the petitioner was arrested and later on released on bail. Subsequently, the respondent No. 2 wrote to the Director General of Police, Assam vide letter dated 08.08.2022 stating that a complaint has been received from one Dr. Das of Jagiroad that the petitioner is practicing dentistry by projecting himself as BDS (Bachelor of Dental Surgery) graduate since several years after obtaining registration from the Assam State Dental council 21.09.2019 in a fraudulent manner by submitting manipulated and forged documents. It was found after due enquiry that the petitioner was never admitted to Maharana Pratap Dental College and Hospital, Kanpur as informed by its Principal. Upon further verification it was found that the petitioner had done 1(one) year rotator internship in a general hospital at Ghaziabad, which according to Dental Council of India, New Delhi was not recognized for internship in dentistry, which must be undergone in a Dental College and Hospital. Thereafter, the State Council decided to cancel the registration of the petitioner and lodged the FIR dated 26.03.2021 at Bhangagarh Police station, Guwahati. It was further stated that subsequently also, the petitioner is practicing dentistry as before which is not permitted under the Dentist Act, 1948 which stipulates that no person can practice dentistry without a valid registration. A copy of a prescription issued by the petitioner dated 08.06.2021 was also enclosed with the aforesaid communication wherein a fake registration number being PR-548 is quoted which kind of registration number is never issued by the Dental Council.

6. The aforesaid communication was forwarded to the concerned police station and accordingly, Nagaon P.S Case No. 1811/2021 u/s 417/419/420/468 was registered and after completion of the investigation, the charge-sheet has been submitted, cognizance whereof was taken by order dated 04.09.2021 passed by the Ld. Chief Judicial Magistrate, Nagaon.

7. Mr. P Mahanta, learned Sr. counsel for the petitioner submits that the FIR in question on the basis of which the charge-sheet being charge-sheet No. 760/2021 dated 31.08.2021 has been submitted by the I/O is the second FIR based on the same facts and the same is impermissible in law.

8. Per contra Mr. A.M Bora, learned Sr. counsel appearing for the respondent No. 2 submitted that although the facts are similar in nature in respect of both the FIRs, the second part of the communication dated 26/7/2021 from the respondent No. 2 to the Director General Of Police, Government of Assam which was treated as an FIR would show that even after lodging of the first FIR against the petitioner which was registered as Bhangagarh Police Station Case No. 149/2021, the petitioner continued to practice dentistry, thereby giving rise to a fresh cause of action every time he treated a patient, after lodging of the first FIR. Therefore, the FIR in question in the instant case cannot be termed as a second FIR, in as much as it relates to events that have nexus with the actions of the petitioner, subsequent to the registration of the first FIR. Therefore, the law with regard to maintainability of the second FIR, are not at all relevant in the instant case.

9. In T.T Antony V. State of Kerala reported in (2001) 6 SCC 181, it was held by the Hon’ble Supreme Court that a second FIR is not maintainable. In the said case it was held as follows :

                   “A just balance between the fundamental rights of the to conduct further citizens under Articles 19 and 21 of the Constitution and the to be struck by the court. There cannot be any controversy that sub-expansive power of the police to investigate a cognizable offence has section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case [(1979) 2 SCC 322: 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."

10. In Anju Choudhary V. State of U.P reported in (2013) 6 SCC 384 it was held by the Hon’ble Supreme Court as follows:

                   On the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced into writing by the officer-in-charge of a police station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRS registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered(Emphasis mine). The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered.

11. In Babubhai V. State of Gujarat reported in 2010 SCC 782, it was observed as follows :

                   “In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same Incident in respect of the same occurrence or are in regard to the Incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different Incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted.”

12. Further, in Nirmal Singh Kahlon V. State of Punjab reported in (2009) 1 SCC 441 it is held that as follows :

                   The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding. as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged."

13. Upon an analysis of the judgments of the Hon’ble Apex Court referred to above, the Hon’ble Apex Court in State of Rajasthan V. Surendra Singh Rathore Supra held as follows :

                   “From the above conspectus of judgments, inter alia, the following principles emerge regarding the permissibility of the registration of a second FIR:

                   (i) When the second FIR is counter-complaint or presents a rival version of a set of facts, in reference to which an earlier FIR already stands registered.

                   (ii) When the ambit of the two FIRs is different even though they may arise from the same set of circumstances.

                   (iii) When investigation and/or other avenues reveal the earlier FIR or set of facts to be part of a larger conspiracy.

                   (iv) When investigation and/or persons related to the incident bring to the light hitherto unknown facts or circumstances.

                   (v) Where the incident is separate; offences are similar or different.”

14. Mr. A.M Bora, learned Sr. counsel appearing for the respondent No. 2 has relied upon the decision of the Hon’ble Apex Court in Sampelly Satyanarayana Rao V. Indian Renewable Energy Development Agency Ltd. reported in (2016) 10 SCC 458 wherein it has been held as follows :

                   As is clear from the above observations of this Court, it is well settled that while dealing with a quashing petition, the court has ordinarily to proceed on the basis of averments in the complaint. The defence of the accused cannot be considered at this stage. The court considering the prayer for quashing does not adjudicate upon a disputed question of fact.

15. It is an admitted position that the registration to practice dentistry on the basis of the BDS Degree has been cancelled by the Assam State Dental Council in respect of the petitioner and subsequently, on 26.03.2021, the Bhangagarh P.S Case No. 149/2021 u/s 420/468/471 IPC was registered against the petitioner. A perusal of the impugned FIR would show that the allegation is that even thereafter, the petitioner is practicing dentistry as before and in this regard, a prescription dated 08.06.2021 is also enclosed where allegedly, a fake registration number has been used. It is, however, the contention of the petitioner that he is practicing dentistry on the basis of the certificate issued by an entity namely, North Eastern Council of Alternative Medicine, hereinafter referred as NECAM.

16. Section 49 of the Dentist Act, 1948 provides as follows :

                   “Practice by unregistered persons.—(1) After the expiry of 3 [three years] from [the date appointed under sub-section (2) of section 32] in the case of dentists, and in the [States] where a register of dental hygienists or dental mechanics has been prepared under section 36 from such date as may be specified in this behalf by the [State] Government by notification in the Official Gazette, in the case of dental hygienists or dental mechanics, no person, other than a registered dentist, registered dental hygienist or registered dental mechanic, shall practise dentistry, or the art of scaling, cleaning or polishing teeth, or of making or repairing dentures and dental appliances, as the case may be, or indicate in any way that he is prepared to so practise:

                   Provided that the provisions of this section shall not apply to—

                   (a) practice of dentistry by a registered medical practitioner;

                   (b) the extraction of a tooth by any person when the case is urgent and no registered dentist is available, so however that the operation is performed without the use of any general or local anaesthetic;

                   (c) the performance of dental work or radiographic work in any hospital or dispensary maintained or supported from public or local funds.

                   (2) If any person contravenes the provisions of sub-section (1), he shall be punishable on first conviction with fine which may extend to five hundred rupees, and on any subsequent conviction with imprisonment which may extend to six months or with fine not exceeding one thousand rupees or with both.”

17. A bare perusal of the aforesaid provision of the statute would show that no person, other than a registered dentist, dental hygienist or dental mechanic shall practice dentistry i.e. unless he is registered under the Dental Council. The proviso to the aforesaid provision enumerates certain exceptions, but a person possessing a certificate issued by the aforesaid entity called North Eastern Council of Alternative Medicine, hereinafter referred as NECAM has not been included therein, although the exceptions provide for extraction of teeth during emergency without application of anesthetic in urgent cases where no registered dentist is available.

18. A perusal of the annexure 8 of the seizure list dated 07.08.2021 would show that the following items were seized from the chamber of the petitioner :

                   Description of Seizure:

                   1. Modern revolins dental chair one nos.

                   2. Compressor machine one nos.

                   3. Instruments 29 Nos.

                   4. One Lidocine Topical Acrosol USP nummit spray surface Anaesthetic

                   5. Copy of code of ethics/......north cart council of Atusatic Mediation

                   6. Dentist resistratios certificate by access state dental council copy one nos.

                   7. One black prescription pad

                   8. Restrictions certificate NECAM/548 IPC/2006 Copy

                   9. Letter from joint director of health services.

19. It prima facie appears from the aforesaid items mentioned in the seizure list that the petitioner was running a full-fledged dental clinic and therefore, it is for the prosecution to establish by evidence that the petitioner was practicing dentistry in violation of Section 49 of the Dentist Act, 1948 at the trial even after the registration of the first FIR against the petitioner. But it cannot be said that there is no material to proceed against the petitioner at all,

20. With regard to the claim of the petitioner that he has been practicing dentistry on the strength of the certificate issued by the above named organization i.e. North Eastern Council of Alternative Medicine, hereinafter referred as NECAM and that he was authorized under the law to practice dentistry, the same is also a matter to be established at the trial.

21. As held by the Hon’ble Apex Court in Anju Choudhury Supra where the incident is separate, then a second FIR can be registered and further, as held in Babubhai Supra, where the facts in the second FIR is in respect of a different incident, the second FIR is permissible. In the instant case, it clearly transpires from the second FIR that the same is in respect of the practice of dentistry by the petitioner after lodgment of the second FIR and prima facie, keeping in view the provisions of Section 49 of the Dentist Act, 1948, as discussed hereinbefore, the second FIR appears to be very much maintainable.

22. Consequently, I find the instant criminal petition to be devoid of merit and the same is dismissed accordingly.

23. Interim order, if any, stands vacated.