Orissa High Court
Mahendra Kumar Nayak vs State Of Odisha .... Opposite Party on 8 August, 2023
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV NO.308 OF 2019
Mahendra Kumar Nayak .... Petitioner,
Mr.D.P. Dhal, Sr. Advocate
-versus-
State of Odisha .... Opposite Party.
Mr. D.K. Mishra, AGA.
CORAM:
MR. JUSTICE D.DASH
ORDER
Order No. 08.08.2023
01. 1. This matter is taken up through hybrid arrangement
(virtual/physical mode).
2. The Petitioner, by filing the Revision has called in question the legality and propriety of the judgment dated 18.04.2019 passed by the learned Sessions Judge, Cuttack in Criminal Appeal No.107 of 2017.
The Petitioner (accused) having been convicted by the learned Judicial Magistrate First Class (J.M.F.C.), Cuttack in 2(c) CC No.902 of 2013 (T.R. No.478 of 2017) by judgment dated 31.08.2017 for commission of offence under sections 23 & 25 of Pre-Conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ( for short, 'the PC & PNDT Act') and sentenced to undergo simple imprisonment for one year and pay fine of Rs.3,000/- , in default, to undergo simple imprisonment for a further period of one month for the offence under section 23 of the PC & PNDT Act and pay fine of Rs.1,000/- in default to undergo simple imprisonment for fifteen days for the Page 1 of 6 // 2 // offence under section 25 of the PC & PNDT Act, had filed the Appeal. The Appeal has been allowed in part. The Appellate Court while confirming the conviction of the Petitioner (accused) for commission of offence under section 23 of the PC & PNDT Act and the sentence awarded thereunder, has set aside the conviction of the Petitioner (accused) for commission of offence under section 25 of the PC & PNDT Act, consequently the sentence so imposed.
3. Mr. D.P. Dhal, learned Senior Counsel for the Petitioner (accused) submits that the complaint in the present case has been filed by the Executive Magistrate examined in the trial as P.W.1 and he is not duly authorized under the PC & PNDT Act to file the complaint. He further submits that the Appellate Court has erroneously interrupted the Extra- Ordinary Gazette Notification dated 05.09.2007 (Ext.1) of the Government of Orissa in the Department of Health and Family Welfare. He next submitted that when by that Notification, the District Appropriate Authority, i.e., District Magistrate of the District has been given the power to nominate the Executive Magistrate of the concerned District as his/her nominee to assist him/her in monitoring the implementation of provision contained in PC & PNDT Act and by the said Notification the Sub-Divisional Magistrates (Sub-Collectors of the Sub-Divisions) have also been appointed as the Appropriate Authority in the concerned Sub-Division for smooth implementation of the provision under the Act, the Appellate Court has lost sight of the fact Page 2 of 6 // 3 // that here the very complaint has been lodged by the Executive Magistrate which could have only been done by the District Magistrate. He, therefore, submits that the very complaint having not been lodged following due process of law as provided in the PC & PNDT Act, the prosecution would stand vitiated. In support of the same, he has placed reliance upon the decision of this Court in (Dr.) Sudhir Kumar Brahma Vrs. State of Odisha (2023) 89 OCR-247. He, therefore, submits that on this ground alone, the judgment and conviction and order of sentence challenged in this Revision are liable to be set aside.
4. Mr. D.K. Mishra, learned Additional Government Advocate while not disputing the fact that here the Executive Magistrate as the complainant has lodged the complaint, however, contends that the complaint at his behest is maintainable and the order of cognizance cannot be said to be illegal so as to conclude that the prosecution stands vitiated.
5. Keeping in view the submissions made, I have carefully read the judgments passed by the courts below.
It is seen from paragraph-4 of the judgment of the Appellate Court that this Petitioner (accused) had taken the above as one of the grounds in the Appeal in challenging the judgment of conviction and order of sentence passed by the Trial Court. The Appellate Court at paragraph-7 of its judgment while dealing with the said ground has taken the view that by virtue of this Extra-Ordinary Gazette Page 3 of 6 // 4 // Notification as afore-stated, which has been admitted in evidence and marked (Ext.1), the District Magistrate having directed the Executive Magistrate (P.W.1) to remain present during the surprise inspection on 06.11.2012 by the State Team and take necessary legal action as per the provision of the Act against the violators that act/action would also fall within the sweep of monitoring of the implementation of the PC & PNDT Act and, therefore he is competent to lodge the complaint in enabling the court to take cognizance of the offence.
In case of (Dr.) Sudhir (supra), similar question had arisen for decision as to whether the Executive Magistrate is competent to file the complaint alleging commission of the offences under the PC & PNDT Act or not. This Court going through the provision of section 28 of the PC & PNDT Act, as also several decisions including those of the Apex Court as noted therein has come to the following conclusions:-
(i) Appropriate Authority (AA) is the authority who is to file the complaint as per Section 17(4) read with section 28 of the PC & PNDT Act read with the Office Memorandum (OM) of the State Government in the Department of Health and Family Welfare dated 27th July, 2007 and no other official;
(ii) In view of the Office Memorandum (OM), District Magistrate (DM) is the Appropriate Authority (AA) in respect of a district and Sub-Divisional Magistrate (Sub-
Collector) shall be the authority vis-à-vis Sub-District (Sub-
Page 4 of 6// 5 // Division) who shall file the complaint under the PC&PNDT Act;
(iii) For the purpose of rendering assistance, an Executive Magistrate (EM) may be nominated by the District Magistrate (DM) for monitoring the implementation of PC&PNDT Act which is virtue of the OM of 2007;
(iv) The authority to file the complaint cannot be shifted by the Appropriate Authority (AA), inasmuch as, there is no such provision in the PC&PNDT Act for delegation of power for the said purpose.
(v) A complaint cannot be filed by any other official as a substitute of the Appropriate Authority (AA) or in the guise of or on behalf of the Appropriate Authority (AA) in derogation to the Office Memorandum (OM);
(vi) For the purpose of inspection, investigation etc, any other officer may be engaged by the orders of the District Magistrate (DM) in accordance with the Office Memorandum (OM) which is for assisting the authority in due implementation of the PC&PNDT Act and not beyond;
(vii) Any such complaint filed other than by the Appropriate Authority (AA) cannot be held as valid prosecution in accordance with law; and
(viii) The Office Memorandum (OM) is issued by the State Government whereby the District Magistrate/Sub-Divisional Magistrate (DM/SDM) is to file the complaint and not the Chief District Medical Officer (CDMO) anymore after Page 5 of 6 // 6 // suppression of the notification of 2002 and if at all, he is treated as an Executive Magistrate (EM), he can only by said to render help and assistance to the District Magistrate (DM) and not to usurp the jurisdiction of the Appropriate Authority (AA).
6. Keeping in view the conclusions as above, the facts and circumstances of the case at hand being gone through, it is seen that the complaint in the given case for commission of the offences under the PC & PNDT Act has not been lodged by the Appropriate Authority who is competent as per the provisions contained in section 28 of the PC & PNDT Act. In that view of the matter, as the prosecution stands vitiated, this Court is of the view that the impugned judgment of conviction and order of sentence cannot be sustained.
7. In the result, the Revision stands allowed. The judgments of conviction and order of sentence which have been impugned in this Revision stand set aside. The bail bonds executed by the Petitioner (accused) shall stand discharged.
Issue urgent certified copy as per rules.
(D. Dash), Judge.
Signature H Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 11-Aug-2023 18:40:33 Page 6 of 6