Gujarat High Court
Shobhnaben Trivedi vs State Of Gujarat & on 24 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2857/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 2857 of 2012
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SHOBHNABEN TRIVEDI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR IH SYED, ADVOCATE for the Applicant(s) No. 1
MS RV ACHARYA, ADVOCATE for the Respondent(s) No. 2
MS HANSA PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/08/2015
ORAL ORDER
1 By this writ petition under Article 226 of the Constitution of India, the petitioner, a lady, Gynecologist, has prayed for the following reliefs:
"9(A) Your Lordship may be pleased to admit and allow this application;
(B) Your Lordship may be pleased to issue a writ or Certiorari or any other writ, order or direction to quash and set aside the C.C. No.658 of 2011 pending before the learned Court of Judicial Magistrate, Mandvi, Kutch.
(C) Your Lordship may be pleased to issue a writ of Certiorari or any other writ, order or direction to quash and set aside the order dated 01.09.2012 passed by the learned JMFC, Mandvi, Kutch issuing process to the petitioner.
(D) Pending final disposal of this petition this Hon'ble Court may stay the proceedings arising out of C.C. No.658 of 2011 pending before the Ld. JMFC, Mandvi, Kutch."Page 1 of 4
HC-NIC Page 1 of 4 Created On Wed Aug 26 01:58:40 IST 2015 R/SCR.A/2857/2012 ORDER 2 It appears that on 16th July, 2013, the following order was passed:
"NOTICE for final disposal returnable on 1/8/2013. The Court is of the prima facie view that necessary ingredients constituting an offence which are required to be there in the complaint are specifically and conspicuously absent. Hence let there be adinterim relief in respect of staying of the proceedings being Criminal Case No. 658 of 2011 pending before Learned Judicial Magistrate, Mandvi, Kutch, till the returnable date."
3 It is very distressing to note that despite there being a clearcut order passed by this Court staying the proceedings of the Criminal Case No.658 of 2011, the trial Court has proceeded further with the case and by now, I am told that three witnesses have already been examined which includes the complainant and two panch witnesses. Ms. Rohini Acharya, the learned advocate appearing for the respondent No.2 submitted that two more witnesses are to be examined and thereafter, the evidence for the complainant would be closed. 4 Mr. Syed, the learned counsel appearing for the petitioner submitted that although the trial has already commenced and three witnesses have been examined, yet this Court in exercise of power under Article 226 of the Constitution of India may look into the complaint to satisfy whether the same discloses commission of any offence or not. 5 The prosecution against the petitioner is under the provisions of the Prenatal Diagnostic Techniques (Regulation and Prevention of Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Aug 26 01:58:40 IST 2015 R/SCR.A/2857/2012 ORDER Misuse) Act, 1994. Since the trial has already commenced and only two more witnesses are to be examined, I am not inclined to look into this matter on merit.
6 The trial Court is directed to complete the trial at the earliest with the judgment by end of September, 2015. I clarify that I have otherwise not gone into the merit of the matter. However, the matter does not rest here. The trial Court owes on explanation as to on what basis it proceeded with the recording of the evidence, more particularly, when the proceedings were stayed by this High Court way back in July 2013. It was also the duty of the complainant who is none other than the authority under the Act to have pointed out to the trial Court that there is stay operating so far as the proceedings are concerned. 7 With the above, this application is rejected. Notice stands discharged. The adinterim relief granted earlier stands vacated forthwith.
8 The Registry shall call for the explanation from the trial Court concerned. For the purpose of looking into the explanation, let this matter be notified on next Monday on top of the Board i.e. on 31st August 2015. However, this should not delay further in conclusion of the trial.
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