Delhi District Court
State vs Dr Rahul Kumar. on 8 May, 2018
IN THE COURT OF SH. VIKRAM, MM-01, NORTH -
DISTRICT, ROHINI COURTS, DELHI.
State Vs Dr Rahul Kumar.
Case No. 5293955/16
FIR No. 06/15
PS Narela
U/s 18(1) 19(3) 23(1)/28 PC & PNDT Act
08.05.2018
ORDER ON CHARGE
1.Accused is chargesheeted for offence u/s 18(1) 19(3) 23(1)/28 PC & PNDT Act and allegations are that accused was licensee of Nishtha Pain Clinic & General hospital to run ultrasound clinic under PC & PNDT Act with effect from 18.09.2008 for a period of 5 years and its registration was expired on 17.09.2013 and accused has failed to apply for renewal of registration for further period.
2. It is alleged that on inspection on 04.09.2014 premises of licensee was found locked and his whereabouts was not known or traceable. Thereafter on State vs Dr Rahul Kumar Dated 08.05.2018 Page No.1/ 7 recommendation of DACM on 07.05.2017, direction were issued to trace the accused but licensee was not traced. Thereafter again on 05.07.2014 during inspection premises of licensee was found locked and owner of premises told that licensee/accused Dr Rahul is not in town for last three years and when contacted on mobile phone of licensee, he informed that he had shifted along with USG machine to District Lakhisarai, Bihar and got centre registered with CMO/DAA District Lakhisarai, Bihar. As per prosecution in response to SCN dated 24.09.2014, licensee submitted a letter dated 19.05.2011 informing that he was going to close the said hospital/centre and shifting to Bihar but no such letter was found on record. It is alleged that by transferring USG Machine without canceling the centre and without prior approval from district authority, accused Dr Rahul has violated the provisions u/s 18(1), 19(3), 23(1) and 28 PC & PNDT Act. On such allegations SDM Narela made a complaint to SHO PS Narela on which FIR was registered and after State vs Dr Rahul Kumar Dated 08.05.2018 Page No.2/ 7 investigation accused was chargesheeted for the same.
3. Ld counsel for accused submitted that prosecution in this case is invalid and stated that police case and final report u/s 173 Cr PC is not maintainable because Act itself, under rule 18(A) (3) clause (IV), provides that prosecution in this case has to be on basis of complaint filed by appropriate authority.
4. It is also submitted on merits that the accused had applied for transfer of USG machine on 19.05.2011 which prosecution has denied. However, on the same letter appropriate authority has, on 24.09.2015 ordered for cancellation of registration number of accused Dr Rahul Kumar vide reference no.F.No.SDM/Narela/PNDT/14/7234-
37. It is submitted by Ld counsel for accused that the accused had applied for transfer of USG machine under old law, under rule 13, where information of shifting of place was to be made within 30 days of such change, which by amendment after June 2012 has been changed to 30 days in advance. Therefore, accused Dr Rahul has State vs Dr Rahul Kumar Dated 08.05.2018 Page No.3/ 7 not committed any offence as it was the failure of appropriate authority is not acting as on intimation dated 19.03.2011.
5. Ld counsel for accused has also submitted that the prosecution of accused Dr Rahul Kumar is also bad because as per notification of Health and Welfare Department dated 23.04.2014, the appropriate authority for North District Delhi is Deputy Commissioner North and District Magistrate NCT, Delhi. However, complainant in this case is filed by SDM PS Narela who is not an appropriate authority and prosecution can not sustain. Ld counsel for accused has placed reliance on judgments of various Hon'ble High Courts on this point. In Rajinder and Others Vs State of Maharastra writ petition no.4310/15 while referring Section 21(1) of the Act it was held by Hon'ble High Court of Bombay that the complaint u/s 28 of the Act that complaint has to be filed by appropriate authority only and authority has no power to delegate this right to some other persons. State vs Dr Rahul Kumar Dated 08.05.2018 Page No.4/ 7
6. Again in criminal writ petition no.1381/15 titled as Dr Sahay Vs State of Maharashtra, it was held by Hon'ble High Court of Bombay that on a complaint filed by a person who is not notified as appropriate authority u/s 17 of PC and PNDT Act, the court has no power to take cognizance.
7. It was also observed by Hon'ble High Court that the role of appropriate authority is not just to receive the complaint and to file proceedings in the court of law. Section 17(4) (c) specifically provides that one of the function of the appropriate authority is to investigate the compliance of breach of provisions of the Act to take legal action.
8. Further in criminal Misc. No.10264/16 titled as Dr. Dass Motwani Vs State of MP and Manvinder Singh Gill Vs State of MP, ILR 2014(MP) 1176 it was held that if complaint is not filed by appropriate authority it is liable to be quashed. The SLP against ILR 2014(M) 1176 i.e. SLP criminal no.2226/14 has been dismissed by State vs Dr Rahul Kumar Dated 08.05.2018 Page No.5/ 7 Hon'ble Supreme Court.
9. Referring all these judgments and provision under PNDT Act, it is clear that mandate of the statute is that complaints under the Act are to be filed by appropriate authority only. There is no power to pass any administrative order delegating this authority to any other official of the State.
10. The complaint in the present case is admittedly filed by SDM Narela who as per notification dated 23.04.2014 is not an appropriate authority. Further as per Section 28 of the Act being a complaint case under the Act procedure of trial can not be taken up under Chapter XIX Part A of Cr PC but under Chapter XIX Part B i.e. cases instituted otherwise than in police report, which is warrants triable complaint case and for that there is no complaint filed by appropriate authority against accused.
11. Considering the totality of the circumstances, there is no substance to frame charge against accused Dr Rahul Kumar and there is no valid complaint against accused Dr State vs Dr Rahul Kumar Dated 08.05.2018 Page No.6/ 7 Rahul Kumar. Hence accused Dr Rahul Kumar is discharged Dictated & Announced in Open Court On the 8th day of May 2018 (Vikram) MM-01/North-Rohini/Delhi 08.05.2018 State vs Dr Rahul Kumar Dated 08.05.2018 Page No.7/ 7