KANWARJIT SINGH KAKKARversusSTATE OF PUNJAB AND ANR.

                    [2011] 6 S.C.R. 895


               KANWARJIT SINGH KAKKAR                             A
                               v.
              STATE OF PUNJAB AND ANR.
            (Criminal Appeal No. 1041 of 2011)

                       APRIL 28, 2011
                                                                  B
[MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

    Code of Criminal Procedure, 1973: s.482

     Quashing of proceedings - Allegation against the C
government doctors that they indulged in private practice in
the evening at their residence and charged consultation fee
from patients which was contrary to the government rules -
FIR lodged under the Prevention of Corruption Act and under
/PC - High Court declined to quash the FIR - On appeal,           o
held: The demand/receipt of fee by a medical professional
for extending medical help by itself cannot be held to be an
illegal gratification as the amount so charged is towards
professional remuneration - If, however, it is alleged that
medical professional as a Government doctor indulged in E
malpractice in any manner, the same would be a clear case
to be registered under the /PC as also under the Prevention
of Corruption Act - Case of unlawful engagement in trade by
public seNants can also be held to be made out u/s. 168, /PC
if the facts of a particular case indicate that besides F
professional discharge of duty by the doctor, he is indulging
in trading activities of innumerable nature which is not
expected of a medical professional - In the instant case, no
presumption could be drawn that the alleged fee was accepted
as motive or reward for doing or forbearing to do any official
act so as to treat the receipt of professional fee as gratification G
much less illegal gratification - Also, offence u!s. 168, /PC
cannot be said to have been made out as the treatment of
patients by a doctor cannot by itself be held to be engagement
in a trade - However, the said act may fall within the ambit of
                                895                                 H
    896     SUPREME COURT REPORTS

A misconduct to be dealt with under the Service Rules - Thus,
  no prim a facie case either uls. 168, IPC or s. 13( 1)(d) r/w
  s. 13(2) of the Prevention of Corruption Act was made out in
  the facts and circumstances of the case - FIR registered
  uoder /PC or Prevention of Corruption Act not sustainable
B and is quashed - Prevention of Corruption Act, 1988 -
  s.13(1)(d) r.w. s.13(2), s.7 - Penal Code, 1860 - s.168 -
  Punjab Civil Medical (State Service Class /) Rules, 1972 -
  r.15.

C       Words and phrases: Corruption - Meaning of - In the
    context of Prevention of Corruption Act, 1988.

       The appellants were medical officers/doctors
  working with the Punjab Government. An FIR was
  registered under Section 13(1)(d) r.w. Section 13(2) of the..
D Prevention of Corruption Act and under Section 168 IPC
  against the appellants alleging that both the government
  doctors were doing private practice in the evening at their
  residence and charging Rs. 100 in cash per patient as
  prescription fee. The complainant stated in his FIR that
E as per the government instructions, the government
  doctors could not charge any fee from the patients for
  checking them. A raid was conducted at the residence of
  both the appellants, where they were allegedly nabbed
  doing private practice as they were trapped receiving Rs.
F 100 as consultation charges from the complainant.

      The appellants filed petitions for quashing the FIR.
  The plea of appellants was that there was no law
  prohibiting government doctor from any act on
  humanitarian ground and the appellants could be alleged
G to have indulged in private practice only if they have
  deviated from the rules laid down by the State
  Government and even if there was deviation from these
  rules prohibiting private practice by government doctors
  contrary to the government instructions, it could warrant
H
KANWARJIT SINGH KAKKAR v. STATE OF PUNJAB 897
                AND ANR.

initiation of departmental proceedings and the . A
punishment under the Punjab Civil Services (Punishment
and Appeal) Rules and not under IPC or Prevention of
Corruption Act. The High Court dismissed the petitions.
The instant appeals were filed challenging the order of
the High Court.                                         B

    Allowing.the appeals, the Court

     HELD: 1.1. 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 would clearly C
emerge that 'corruption' is acceptance or demand of
illegal gratification for doing an official act. 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 D
remuneration. It would be preposterous to hold that if a
d.octor 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, it is E
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 F
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 was not the case G
in the instant matter. The FIR sought to be quashed,
merely alleged that the appellants were indulging in
private practice while holding the post of government
doctor which restrained private practice, and charged

                                                            H"
     898     SUPREME COURT REPORTS               [2011] 6 S.C.R.

A professional fee after examining the patients. [Para 11]
  [906-F-H; 907-A-C]

          1.2. Before a public servant can be booked under the
     Prevention of Corruption Act, the ingredients of the
B    offence will have to be deduced from the facts and
     circumstances obtained in the particular case. Judging
     the case of the appellants on this anvil, the amount that
     was alleged to have been accepted even as per the
     allegation of the complainant/informant was not by way
C    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
D    gratification. Even as per the case of the complainant/
     informant, the act on the part of the 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
E    permission from the government in this regard. Thus, the
     conduct of the appellants who were 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
F    under the Service Rules but in 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
     examination of patients by doctor and thereby charging
     professional fee, by itself, would not be an offence. Thus,
G    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
·H   event was a professional foe. Thus, if a particular
..   ~   " .
 KANWARJll SINGH KAKKAR v. STATE OF PUNJAB 899
                 AND ANR.

professional discharges the duty of a doctor, thcn..by itself A
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 that event, the said act
clearly would fall within the ambit of misconduct to be
dealt with ·under the Service Rules but would not B
constitute criminal offence under the Prevention of
Corruption Act. [Para 15] [909-G; 910-A-H; 911-A]

     State of Gujarat vs. Maheshkumar Dheerajlal Thakkar
AIR 1980 SC 1167; Raj Rajendra Singh Seth alias R.R.S.
Seth vs. State of Jharkhq_nd And Anr. (2008) 11 SCC 681; B. C
Noha vs. State of Kera/a (2008) 11 SCC 681; Madhukar
Bhaskarrao Joshi vs: State of Maharashtra (2000) 8 SCC 571;
M. Narsinga Rao vs. State of A.P (2001) 1 SCC 691 -
referred to.
                                                               D
     1.3. The offence under Section 168, 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 E
his professional duty which cannot be held to be a 'trade'
so as to make out or constitute an offence under Section
168, IPC. There may be cases of doctors indulging in
cases of medical negligence, demand or accept amount
in order to incur favour on the patients which would F
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 G
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. But if the

                                                              H
    900      SUPREME COURT REPORTS              [2011] 6 S.C.R.


A 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. The
8 allegation even as per the FIR as it stands in the instant
  case, do n-ot constitute an offence either under the
  Prevention of Corruption Act or under Section 168 of the
  IPC. (Para 16) [911-B-H; 912-A]

       1.4. No prima facie case either under Section 168, IPC
C 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
D 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 appellc. nts initiating action
  for misconduct, FIR registered against them under IPC or
E Prevention of Corruption Act is not fit to be sustained.
  [Para 17) (912-B-D)

                        Case Law Reference:
          AIR 1980 SC 1167        referred to         Para 10
F
          (2008) 11 sec 681       referred to         Para 12
          (2008) 11 sec 681       referred to         Para 13
          c2000) 8 sec s11        referred to         Para 14
G         c2001) 1 sec 691        referred to         Para 14
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No.1041 of2011.

H
  KANWARJIT SINGH KAKKAR v. STATE OF PUNJAB 901
                  AND ANR.

     From the Judgment & Order dated 2.4.2009 of the High        A
 Court of Punjab & Haryana at Chandigarh in Crl. Misc. No.
 15695-M of 2007.

                             WITH

 Crl. A.No. 1042 of 2011.                                        B

      Jigyasa Tanwar. Rohit Tanwar (for Dr. Kailash Chand) for
 the Appellant.

     Niraj Jha (for Kuldip Singh) for the Respondents.
                                                                 c
     The Judgment of the Court was delivered by

     GYAN SUDHA MISRA, J. 1. Leave granted.
      2. These appeals by special leave had been filed against
                                                               0
 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 E
 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.
                                                                 F
       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 G
. 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 H
    902     SUPREME COURT REPORTS                   [2011] 6 S.C.R.

                ~



A   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 prescription slips and medicines to the patients after ,
    checking them properly and charged Rs.100/- from each patient.
B   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
c   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
D   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.

E         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 dated April 9,
    2003 before the High Court of Punjab and Haryana at
    Chandigarh wherein counsel for the appellants contended that
F   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
G   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
H   signature of the appellant.
KANWARJI I SINGH KAKKAR v. STATE OF PUNJAB 903
     AND ANR. [GYAN SUDHA MISRA, J.]

      5. It was also contended by learned counsel for the            A
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    B
there is a deviation from 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                  c
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      D
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     E
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               F
    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 interfere with the discharge
    of his or their official duties.
                                                                     G
    (2) Nothing contained herein shall be construed to limit or
    abridge th·e 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."                                        H
    904         SUPREME COURT REPORTS                [2011] 6 S.C.R.


A      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
B 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
C 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 practice is not an illegal gratification
D 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
E                 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

F         (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
G         (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
H
     KANWARJIT SINGH KAKKAR v STATE OF PUNJAB 905
          AND ANR. [GYAN SUDHA MISRA, J.]

and it was contended that the provisions of Prevention of A
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.
                                                                   B
      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 C
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 D
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   E
       trade, shall be punished with simple imprisonment for a
       term which may extend to one year, or, with fine, or with
       both."

ltwas submitted that this Section makes it amply clear that
'private practice' cannot be termed as 'trade', as accepting of F
'fee', does not involve profit making which is an essential
ingredient of the term 'trade' as held in State of Gujarat vs.
Maheshkumar Dheeraj/al Thakkar1 • The counsel further took
assistance from the Punjab Government Vigilance Department
( Vigilance -3 Branch) which vide Memo No. 53/168/02-54/ G
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

1.    AIR 1980 SC 1167.                                            H
    906.     SUPREME COURT REPORTS                  [2011] 6 S.C.R.

A 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
B 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
c 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 recovery of medical instruments or medical apparatus was
  made. It was, th~refore, contended that the impugned order of
0 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
E 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
F 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
G 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 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
H illegal gratification as that would be even against the plain
     KANWARJIT SINGH KAKKAR v. STATE OF PUNJAB 907
          AND ANR. [GYAN SUDHA MISRA, J.]
common sense. If however, for the sake of assumption, it were A
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 B
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 c
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           D
Singh Seth alias R.R. S. Seth vs. State of Jharkhand And
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    E
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      F
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'~ father was
admitted in the Central Hospital and the complainant visited his   G
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
2.    (2008) 11 sec 681.                                           H·
    908      SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A that Dr. R.R.S. Seth demanded a sum of Rs. 500/- from the
  complainant for giving proper 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
B 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.
c       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
D 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 bu.rden
  is on public servant to establish that it was not by way of illegal
  gratification. This Court held that the said burden was not
E discharged by the accused and hence it was held that all the
  requisites 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 Kera/a 3 ,
F 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
G
          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."


H 3. c2ooe) 12 sec 277.
     KANWARJIT SINGH KAKKAR v. STATE OF PUNJAB 909
          AND ANR. [GYAN SUDHA MISRA, J.]

     14. The learned Judges also took notice of the                                                           A
 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                                               B
        the presumption is that there was payment or acceptance
        of gratification. Once the said premise is established, the
        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                                          C
        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                                               D
        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                                                 E
 vs. State of A.P' ..

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                                                      F
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                                               G
facts and circumstances obtained in the particular case.
Judging the case of the appellants on this anvil, it is not difficult
to notice that in the ca~e at hand, the amount that is alleged to
4.    c2000) a sec 571.
5.    c2001) 1 sec 691.                                                                                       H
    910     SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A 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
a 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
c 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
D and hence public servant at the most, could be proceeded with
  for departmental proceeding under the Service Rules but in 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
E 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
F 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
G 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
H of the government. In that event, the said act clearly would fall
 KANWARJIT SINGH KAKKAR v. STATE OF PUNJAB 911
      AND ANR. [GYAN SUDHA MISRA, J.]

within the ambit of misconduct to be dealt with under the A
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
                                                                     8
 '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.     C
 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 engagemen~ in a trade as the doctors' duty
to treat patients is in the discharge of his professional duty       D
whi.ch 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
medical negligence, demand or accept amount in order to incur
favour on the patients which would amount to illegal gratification   E
and hence 'corruption', and in such cases offence can most
certainly be held to have been made out under the Prevention
of Corruption Act c;ilso. 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    F
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      G
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 constitute an offence either      H
    912     SUPREME COURT REPORTS                [2011] 6 S.C.R.


A   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
8
  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
C 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
D registered against them under IPC or Prevention of Corruption
  Act is not fit to be sustained. Consequently, both the appeals
  are allowed.

    O.G.                                        Appeals allowed.