Bombay High Court
Dr. Sadanand M Ingle, Mbbs, Md ... vs State Of Maharashtra, Thr. The ... on 24 August, 2018
Author: S.B. Shukre
Bench: S.B. Shukre
J-apl54.12.odt 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.54 OF 2012
Dr. Sadanand M. Ingle,
MBBS, MD (Gynaecology),
"Sevasadan", Jalamb Naka,
Khamgaon, District Buldana. : APPLICANT
...VERSUS...
1. State of Maharashtra,
through the Secretary,
Department of Home, Mantralaya,
Mumbai-400 032.
Respondent No.2 is
deleted as per the 2. Judicial Magistrate, First Class,
Court's order Khamgaon.
dt.31.1.2012.
2. Dr. Suresh Kashiram Sirsat,
Medical Superintendent, General Hospital,
Shegaon Road, Khamgaon.
3. State of Maharashtra,
through the Secretary,
Public Health Department,
Mantralaya, Mumbai-400 032. : RESPONDENTS
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Shri P.C. Madkholkar assisted by Shri Ram Karode, Advocate for the applicant.
Shri K.L. Dharmadhikari, Addl. Public Prosecutor for the Respondent 1 & 3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 24
AUGUST, 2018.
ORAL JUDGMENT :
1. Heard.
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2. This petition seeks quashing of the Complaint proceeding No.119/2011 initiated under Section 3-A read with Sections 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short, "the Act, 1994"). The allegation is that the applicant/accused disclosed gender of the foetus to its mother in violation of the prohibition imposed under Section 3-A and 6 of the Act 1994. The complaint in this regard has been filed by the respondent No.2 admittedly in the capacity as Medical Superintendent, General Hospital, Shegaon Road, Khamgaon.
3. In the complaint so filed, it is stated that the complainant i.e. respondent No.2 is an authorized officer in terms of Section 17(2) of the Act, 1994.
4. Learned Addl. Public Prosecutor for the respondent Nos.1 and 3 submits that the respondent No.2 can be considered to be an authorized officer in view of notification dated 8 th November, 2001 and the clarification dated 21st March, 2013 given by the Joint Director (Hospital) State Level, Mumbai. Alternately, he also submits that some time should be given to him to seek further clarification in the matter.
5. This has been opposed to by Shri P.C. Madkholkar, learned counsel for the applicant, who submits that the complaint is bad in law because it has been filed by an officer not authorized by the State Government in terms of Section 17(2) of the Act, 1994.
6. So far as the prayer for grant of time is concerned, with due ::: Uploaded on - 30/08/2018 ::: Downloaded on - 31/08/2018 23:28:42 ::: J-apl54.12.odt 3/5 respect, I would say that at such a belated stage it is not possible for this Court to accede to the same. This application is pending for disposal since the year 2013 and there is also stay order passed by this Court way back in the year 2013. Besides, the respondents have primarily placed reliance upon the notification dated 8th November, 2001, to justify their stand that the complaint has been filed by the authorized officer and this notification being already available on record, can always be appropriately considered now. The request is, therefore, rejected.
7. A bare perusal of the Government notification dated 8 th November, 2001 is sufficient to indicate that the Government has appointed Medical Superintendent of Rural Hospital at every taluka level in the State of Maharashtra to be the appropriate authority for the respective areas under his control for the purposes of the Act, 1994. This notification does not make any reference or mention the name of an officer designated as Medical Superintendent, General Hospital at every taluka level. Therefore, it is obvious that this notification does not authorize an officer whose designation is Medical Superintendent, General Hospital of a given taluka. It only authorizes an officer who is designated as Medical Superintendent of Rural Hospital of a given taluka. The respondent No.3, however, does not fit into this designation mentioned in notification dated 8.11.2001.
8. There is of course a clarification given on 21.3.2013 by the Joint Director (Hospital), State Level, Mumbai, which has been filed on ::: Uploaded on - 30/08/2018 ::: Downloaded on - 31/08/2018 23:28:42 ::: J-apl54.12.odt 4/5 record of the connected matter being Criminal Application No.172/2013 at Page 81. This clarification only states that the Medical Superintendent of a Rural Hospital, is equivalent in post to the Medical Superintendent, Sub-District and General Hospital and, therefore, the submission is that such Officer, that is, respondent No.2 be considered as also the appropriate authority under the Act 1994.
9. This clarification, I must say, cannot be accepted at this stage for the reason that it does not fulfill the requirement of section 17(2) of the Act, 1994. The power to appoint an appropriate authority or authorized officer is conferred upon the State Government and it has to be exercised by the State Government only and that too in the manner stipulated in Section 17(2) of the Act, 1994. The State Government is required to exercise this power by issuing a notification in the official gazette. Here, the clarification has been given not by the State Government by issuing any notification in the official Gazette, but by an officer of the State in the rank of the Joint Director (Hospital), Mumbai. Therefore, the clarification cannot be accepted as fulfilling the lacuna left in the Government Notification dated 8th November, 2001.
10. The result of the above discussion would be that here is a case, a complaint case, initiated by an officer i.e. respondent No.2, who is not the appropriate authority appointed under Section 17(2) of the Act, 1994 and, therefore, the whole proceedings of the case are in bad in law and stand vitiated. The criminal application thus would have to be ::: Uploaded on - 30/08/2018 ::: Downloaded on - 31/08/2018 23:28:43 ::: J-apl54.12.odt 5/5 allowed or otherwise any continuation of the proceedings of the complaint would amount to abuse of the process of law.
11. The Criminal Application is allowed.
12. The proceedings of the complaint bearing Regular Criminal Case No.119/2011 are hereby quashed and set aside.
JUDGE okMksns ::: Uploaded on - 30/08/2018 ::: Downloaded on - 31/08/2018 23:28:43 :::