Gujarat High Court
Bharatkumar Chhaganlal Bhate vs State Of Gujarat & on 1 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/228/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 228 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHARATKUMAR CHHAGANLAL BHATE....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR.NANDISH H THACKAR, ADVOCATE for the Applicant(s) No. 1
MS. PATHAK, LD. APP WITH MR. MITESH AMIN, LD. PUBLIC
PROSECUTOR for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/02/2017
ORAL JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a practicing Gynecologist-original accused, has prayed for the following Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri Feb 03 03:37:22 IST 2017 R/SCR.A/228/2016 JUDGMENT reliefs;
"(A) Your Lordships may be pleased to quash the Chargesheet No.31/2017 filed before the Ld. Chief Judicial Magistrate, Rajkot for the offences under the PNDT Act and the Criminal Case No.1408/2007 initiated pursuant to the filing of the chargesheet, in the interest of justice.
(B) Your Lordships may be pleased to stay the further proceedings of the chargesheet No.31/2007 filed before the Ld. Chief Judicial Magistrate, Rajkot for the offences under the PNDT Act and the Criminal Case No.1498 of 2007 initiated pursuant to the filing of the chargesheet, pending the admission, hearing and final disposal of this petition.
(C ) Your Lordships may be pleased to grant such other and further orders, as may be deemed fit and proper by the Hon'ble Court in the interest of justice."
2. It appears from the materials on record that the Chief District Health Officer, Rajkot lodged a first information report at the Rajkot City Police Station being II-C.R. No.148 of 2006 for the offence punishable under sections 22, 23, 24, 25 and 26 of the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
3. The sum and substance of the allegations levelled in the first information report are that the applicant herein is a practicing gynecologist at Rajkot, and he conducted a sonography for the purpose of determining the sex of the foetus. At the end of the investigation, the Investigating Officer filed the charge-sheet and the filing of the charge-sheet culminated in the Criminal Case No.1498 of 2007 which is pending, as on date, in the court of the learned Chief Judicial Magistrate, Rajkot.
4. Mr. Thakkar, the learned senior counsel appearing for the Page 2 of 6 HC-NIC Page 2 of 6 Created On Fri Feb 03 03:37:22 IST 2017 R/SCR.A/228/2016 JUDGMENT applicant has two fold submissions to canvass. His first submission is that having regard to the provisions section 28 of the Act, the court concerned could not have taken cognizance of the alleged offence based on a police report. His second submission is that even if the prosecution is maintainable, the first informant could not have lodged the first information report, he not being the appropriate authority or an officer authorized by the State Government in this regard.
5. This writ application has been opposed by Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State and Ms. Rohini Acharya, the learned counsel appearing for the respondent No.2-original first informant.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the prosecution initiated against the applicant herein is maintainable.
7. Mr. Amin, the learned Public Prosecutor clarified that by way of a notification dated 9th November, 2001 issued by the Health and Family Welfare Department, State of Gujarat, all the Chief District Health Officers in the State of Gujarat have been empowered to lodge the first information report for the offence under the Act, 1994. The learned Public Prosecutor pointed out that the Chief District Health Officers are the appropriate authorities.
8. In such circumstances, it cannot be said that the first informant could not have lodged the first information report.
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R/SCR.A/228/2016 JUDGMENT
9. The moot question that falls for my consideration is whether cognizance could have been taken by the court concerned on a police report for the offence under the Act, 1994. Section 28 of the Act, 1994 reads as under;
"Section-28. Cognizance of offences.
1. No court shall take cognizance of an offence under this Act except on a complaint made by -
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.
Explanation.- For the purpose of this clause, person includes a social organization.
2. No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under this Act.
3. Where a complaint has been made under clause (b) of subsection (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.
10. The plain reading of section 28 of the Act makes it abundantly clear that cognizance of an offence under the Act, 1994 can be taken by the Court only upon a complaint made by the appropriate authority or any officer authorized in this behalf by the State Government. The term "complaint" in section 28 of the Act should be construed as one defined under section 2(d) of the Criminal Procedure Code. Section 2(d) of the Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Feb 03 03:37:22 IST 2017 R/SCR.A/228/2016 JUDGMENT Criminal Procedure Code reads as under;
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
11. Section 28 of the Act is almost at par with section 195 of the Code of Criminal Procedure. Section 195 of the Cr. P.C. Also specifies the offences, of which, cognizance can be taken by the Court only upon a complaint. The term "complaint" under section 195 of the Cr.P.C. has been interpreted in number of decisions as the one defined under section 2(d) of the Cr.P.C.
12. In such circumstances, the trial cannot proceed further against the applicant herein. Let me clarify that whatever investigation has been carried out and whatever materials have been collected, will have no bearing with the issue at hand. The investigation cannot be termed as illegal so as to render the materials also inadmissible in evidence.
13. If the State wants to rectify its mistake, it is always open for it to initiate appropriate proceedings before the court concerned in accordance with law relying on the very same materials which is on record as on date.
14. Mr. Amin, the learned Public Prosecutor, at this stage, pointed out something very important. The learned Public Prosecutor pointed out that the prosecution is of the year 2007. The maximum punishment for the alleged offence under the statute is three years. If that be so, then, probably, the issue with regard to the limitation may arise before the court concerned. If such issue with regard to the limitation arises, Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Feb 03 03:37:22 IST 2017 R/SCR.A/228/2016 JUDGMENT the court concerned shall consider the provisions of section 473 of the Cr.P.C.
15. I clarify that I do not express any opinion in this regard. To put it in other words, whether to condone the delay or not will be within the discretion of that particular court.
16. With the above, this application is allowed. The proceedings of the Criminal Case No. 1498 of 2007 pending in the court of the learned Chief Judicial Magistrate, Rajkot, are hereby quashed. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Feb 03 03:37:22 IST 2017