Madhya Pradesh High Court
Mukesh Rathore vs P.C.P.N.D.T. on 26 June, 2020
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1
(M.Cr.C. No.3154/2020)
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B. HON'BLE MS. JUSTICE VANDANA KASREKAR
M.Cr.C. No.3154/2020
Mukesh Rathore
Vs.
The State of M.P. & Another
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Shri Deepak Kumar Rawal, learned counsel for the
petitioner.
Shri Yogesh Gupta, learned Govt. Advocate for the
respondents/State.
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ORDER
(26/06/2020) The petitioner has filed this present petition under Section 482 of Cr.P.C. for quashment of proceedings initiated against him under Sections 23 and 25 of Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994 bearing Complaint No.381/PNDT/2019 in Case No.8646/2019.
2. That, as per prosecution case, on the directions of the Additional District Magistrate, a surprise inspection was conducted on 30/09/2019 at Flat No,.405, Palitana Apartment, Silicon City, Rau, District - Indore. During inspection, it was allegedly found that the present petitioner was conducting Sonography on a pregnant woman. It was alleged that the 2 (M.Cr.C. No.3154/2020) Sonography Machine is not registered in the Indore District and that the petitioner herein is also not licensed to conduct Sonography tests upon subjects. Thereafter, upon completion of investigation, a criminal complaint no.381/PNDT/2019 was filed under Sections 23 and 25 of 'PNDT ACT'. Subsequently, the learned trial Court took cognizance of the present matter in R.C.T. No.8646/2019 pending before the Chief Judicial magistrate, District - Indore.
3. That, the State Government in exercise of its powers vested under Sections 17(2) and 17(3) of 'PNDT ACT', vide Notification dated 4/04/2007 published in the Official Gazette, appointed the District Magistrates at district levels to act as the 'Appropriate Authority' under the 'PC & PNDT ACT'. The said notification also empowered the District Magistrate to nominate an Executive Magistrate for aiding him in monitoring the implementation of 'PC & PNDT ACT'.
4. The appropriate authority for District Indore viz. District Magistrate, Indore vide order dated 5/07/2019 nominated Additional District Magistrate, Indore Shri Pawan Jain, for aiding the former in monitoring the implementation of the 'PC & PNDT ACT' in pursuance of the notification dated 4/04/2007. 3
(M.Cr.C. No.3154/2020)
5. The nominated Additional District Magistrate, Indore, on receipt of information regarding sex determination of foetus/fetus, constituted a committee of 7 members and authorized the said committees to take appropriate action under the 'PC & PNDT ACT' vide order dated 30/09/2019. The Additional District Magistrate, Indore himself was not part of the above-said committee.
6. The Committee so constituted to investigate under the 'PC & PNDT ACT' regarding the alleged act of sex determination of Foetus. During investigation, it was allegedly found that the present petitioner was conducting Sonography on a pregnant woman. It was allegedly stated that the Sonography Machine is not registered in the Indore District and that the petitioner herein is also not licensed to conduct Sonography upon subjects. Thereafter, on the basis of this allegation, the Additional District magistrate authorised and directed the Nodal Officer, PC & PNDT ACT, Collectorate Office, Indore viz. Shri Satish Kumar Joshi, vide order dated 1/10/2019 to file a criminal complaint. Accordingly, the complaint was filed before the C.J.M., Indore and he took cognizance in the matter. Being aggrieved by that, the petitioner has filed the present petition for quashment of the 4 (M.Cr.C. No.3154/2020) said proceedings.
7. In the present case, a supplementary complaint was also filed. Learned counsel for the petitioner submits that there are no express provisions under the relevant law or under Cr.P.C. in regards to filing of supplementary complaint on which cognizance had already been taken by the Court for an offence and in absence of an express provision to that effect, supplementary complaint could not have been filed, which will only delay the trial. He further argues that the combined reading of Sections 17 and 28 of PC & PNDT ACT together with definition of the expression "Appropriate Authority" would make it clear that if the complaint has not been signed and filed by such an Appropriate Authority or the officer, the Court would be precluded from taking cognizance of the complaint. That, in the present case also, the complain was not signed by the Appropriate Authority or an officer authorized by the Appropriate Authority as required under the PC & PNDT ACT and, therefore, it cannot be said that the complaint was filed in terms of Section 28 (1) (a) of the PC & PNDT ACT, therefore, the cognizance which has been taken by the Court, is bad in law.
8. This Court in the case of Dr. Das Motwani Vs. State of 5 (M.Cr.C. No.3154/2020) M.P.(M.Cr.C. No.10264/2016) has held as under :-
"Making of complaint would be complete when it is signed and filed by the officer authorized or appropriate authority. It can safely be held that until the complaint is signed and presented before the competent Court by the officer authorized or appropriate authority as notified by the State Government, the Court cannot take cognizance on such complaint. If in the statute provision prescribes a condition to exercise the statutory power distinguished from the duty by a person or officer must be construed as specified in the statute treating it to be a mandatory requirement."
9. Similar view has been taken by the Bombay High Court in the case of Kavita Pramod Kamble Vs. Sate of Maharashtra & Others reported in 2018(1) RCR(Criminal) 762.Thus, in all these judgment cited above, the Court has held that before prosecuting any person under the Act, the sanction of Appropriate Authority is required. In the present case, according to Section 17(1) (a ) the competent authority is the District Magistrate, who will authorize the Additional District Magistrate to appoint any person as the appropriate authority and in the present case, the power has been given to the S.D.O., who is not a competent authority under the Act to file a complaint. The Hon'ble High Court of Bombay after considering the judgment of Hon'ble Apex Court in SLP(Cri) No.2226/2014 Dr. Manvinder Singh Gill Vs. State of M.P. held that :
6
(M.Cr.C. No.3154/2020) "No person other than the one falling in the category of persons mentioned in Section 28 of the PCPNDT Act is empowered to institute the prosecution. The complaint for the offences under the PCPNDT Act as such can be filed only by the Appropriate Authority concerned or by any officer authorized for this purpose by the Central or the State Government as the case may be, or by the Appropriate Authority apart from a private person on giving notice of not less than 15 days. Unless and until the complaint for the offence punishable under the PCPNDT Act is instituted by any of these Officer / persons, the Court is not empowered to take cognizance of the offence alleged in the said complaint."
10. So far as search and seizure is concerned, learned counsel for the petitioner relied on Section 30(1) and Rule 12 of the Pre Conception and Pre Natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 Rules 1996, only Appropriate Authority or the officer so authorized by such Appropriate Authority shall have the right to investigate and carry search and seizure and the same must be done in presence of two or more independent expertise persons.
11. In the present case, the Committee so constituted by the Additional District Magistrate, Indore was not competent to conduct the investigation search and seizure on 30/09/2019. In view of the provisions of Section 30 of the 'PC & PNDT ACT' and the Rules, the said power vests upon the Appropriate 7 (M.Cr.C. No.3154/2020) Authority or the officer so authorized. Hence, the proceedings stand vitiated. In the light of the aforesaid, leaned counsel for the petitioner submits that the application deserves to be allowed and the criminal proceedings under Sections 482 of Cr.P.C. initiated against the petitioner under Sections 23 and 25 of the "PC & PNDT ACT' as well as further proceedings which are pending before the C.J.M., Indore in Criminal Case No.381/PNDT/2019 be also quashed.
12. Counsel for the respondents' supports the order passed by the Court below and has stated that the investigation has righty been taken against the petitioner. As per reply submitted by the respondents, on 30/09/2019, one Smt. Kanika wife of Santosh Talreja has made a complaint to District Magistrate, stating that she is pregnant and her husband is pressurizing her to determine the sex of the fetus. On 1/10/2019, the complainant has filed a complaint before the Chief Judicial Magistrate. The complainant in his compliant has stated that the complaint is not filed by the competent authority under the Act. He submits that the complaint is signed by the District Magistrate and he is not a competent authority to file the complaint. He further submits that the identical M.Cr.C. No.6027/2013 has been dismissed by this 8 (M.Cr.C. No.3154/2020) Court on 1/09/2015 against which an S.L.P. was preferred before the Apex Court, which was also dismissed. Therefore, he submits that in the light of the aforesaid judgment passed by this Court, the present petition also deserves to be dismissed.
13. Heard learned counsel for the parties at length and perused the record.
14. In the present case, a complaint was filed by one Smt. Kanika wife of Santosh Talreja before the District Magistrate stating that her husband is pressurizing her for sex determination of the fetus. On the basis of this complaint, the District Magistrate has directed sudden inspection Accordingly, the officer has conducted inspection and has found that at the spot three more pregnant woman were present. Thereafter, on the basis of this fact, the complaint was preferred before the Chief Judicial Magistrate. The Chief Judicial Magistrate has aken cognizance in the matter. Thus, being aggrieved by that, the petitioner has filed the present petition.
15. In the present case, it has been stated that the complaint has not been filed by the competent authority. According to Section 17 of the Act, only Appropriate Authority is empowered 9 (M.Cr.C. No.3154/2020) to take cognizance under the PC & PNDT ACT and Appropriate Authority has been defined under Section 2 of the Act.
16. On perusal of the aforesaid, it is clear that section 17(1) applies to the Central Government while Section 17(2) applies to the State Government by which the State Government by a notification under official gazette may appoint one or more appropriate authorities for the whole State as per Section 17(3)
(a) or part of the State as per Section 17(3)(b) to carry out the purposes of the act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide. Subsection (3)(a) specifies when appropriate authority is appointed for the whole of the State or the Union territory, such Authority would be vested within the three members as specified in sub clause (i), (ii) and (iii). But when Appropriate Authority is required to be appointed for a part of the State then under Sections 17 (2), (3)(b), i.e. the officer of such other rank not specified under Section 17(3)(a)(i)(ii)(iii), by way of a notification of the State Government published in the official gazette.
17. The powers of the Appropriate Authority specified in Section 17A may be exercised by such authority summoning any person who is in possession of any information relating to 10 (M.Cr.C. No.3154/2020) violation of the provision of the Act and Rules; for production of any document or material object relating to clause (a); for issuing search warrant for any place suspected to be indulging in sex selection techniques or pre-natal sex determination or for any other matter which may be prescribed, therefore, prescribed authority may exercise the above powers. As per the scheme of the Act, Section 18 provides registration of genetic counseling centers, genetic laboratories and genetic clinics. Issuance of Registration Certificate is provided under Section 19, which can be suspended or cancelled as per Section 20 to which appeal is provided under Section 21 Chapter 7 deals with offences and penalties making a cheque prohibiting advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention. Its violation would be an offence and penalty as specified under Section 23. Sections 24, 25 and 26 deal with presumption, penalties for contravention and offences of companies. Section 27 makes it clear that if any offence is committed, it would be cognizable, non bailable and non compoundable.
18. Section 28 of the PC & PNDT Act relates to taking of cognizance of offence, however, for the case at hand, it is 11 (M.Cr.C. No.3154/2020) relevant, therefore, reproduced as under:-
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 organisation. (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 sub-section (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.
19. Bare perusal of the same makes it clear that cognizance may be taken by the Court for an offence under the provision of this Act on a complaint made by the "Appropriate Authority concerned" or "any officer authorized" in this behalf by the Central Government or State Government, as the case may be or by "the Appropriate Authority." Thus, "Appropriate Authority concerned" "officer authorized" and "appropriate authority"
appointed by Central or State Government notified in Gazette may file the complaint on which cognizance can be taken. The said three authorities may have material bearing to the definition 12 (M.Cr.C. No.3154/2020) clause 2(a) and 17(3)(a) and (b) of the PC and PNDT Act.
20. The State Government by issuing notification dated 04/04/2007 has notified the District Magistrate as Appropriate Authority. The notification appointing "appropriate authority" is reproduced as under:-
M.P. State Official Gazette Dated 20.4.2007 ^^yksd LokLF; ,oa ifjokj dY;k.k foHkkx ea=ky;] oYyHk Hkou] Hkksiky] Hkksiky] fnukad 4 vizSy 2007 Ø- ,Q&10&83@2001&l=g&esfM 2]&bl foHkkx ds vkns'k Øekad ,Q 10&63&2001&l=g&esfM&2 fnukad 11 tqykbZ 2001 dks vfrf"Br djrs gq,] jkT; 'kklu] ,rn~}kjk] Hkwz.k fyax irk djus ds fy;s xHkZ/kkj.k iwoZ ,oa izlo iwoZ funku rduhd dk nq#i;ksx jksdus ,oa blds vkSfpR;iw.kZ iz;kstuksa ds fy;s mi;ksx dks fofu;fer djus ds mn~ns'; dks /;ku esa j[krs gq,] Hkkjr ljdkj] LokLF; ,oa ifjokj dY;k.k ea=ky; ds i= Ø- 24026&111&06 fnukad 12 Qjojh 2007 esa fn;s x;s funsZ'kksa ds ikyu esa xHkZ/kkj.k iwoZ ,oa izlo iwoZ funku rduhd vf/kfu;e] 1994 dh dafMdk 17 dh midafMdk 2] 3 ¼c½ ds rgr ftyk Lrj ij ftyk eftLVªsV dks mudh vf/kdkfjrk ds ftys ds fy;s l{ke izkf/kdkjh ¼,izksfiz;sV vf/kdkjh½ fu;qDr djrk gSA ftyk eftLVªsV xHkZ/kkj.k iwoZ ,oa izlo iwoZ funku rduhd vf/kfu;e] 1994 ds fØ;kUo;u dh ekWfuVfjxa esa lg;ksx gsrq ;fn vko';d le>s rks muds v/khu dk;Zjr fdlh ,DthD;wfVo eftLVªsV dks ukekfa dr dj ldxsas] e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj] ,-ds- JhokLro] milfpo^^
21. The perusal of the aforesaid makes it clear, the State Government for the parts of the State notified the District Magistrates as "appropriate authority" at districts level to exercise their jurisdiction within the districts. If required, they may nominate any executive Magistrate for the purpose of monitoring in execution of the provisions of the Act. Thus, as per 13 (M.Cr.C. No.3154/2020) the said notification the appropriate authority may appoint any executive Magistrate for the purpose of monitoring of the execution only. The State Government has not brought any other notification issued by them appointing the CMHO, Bhopal as officer authorized to carry out the power under Section 28 of the Act. Thus "appropriate authority" appointed under Section 17(2) by the State, may be by notification in official gazette appointing one or more "appropriate authorities" for whole or part of the State. As per sub-section (3), if appointment is required to be made for whole of the State, such appointment consist with three members as per Section 17(3)(a)(i), (ii) and
(iii) but when "appropriate authority" is appointed for any part of the State, it may be an officer of such other rank as the State Government may deem fit, therefore, it can safely be presumed, by the notification dated 20.4.2007 the State Government appointed the Collectors of the Districts as appropriate authority for a part of the State conferring the powers under the PC and PNDT Act to be exercised in their respective Districts.
22. Section 28 starts with non-obstente clause putting a cheque on the Court while taking cognizance of the offence under the PC and PNDT Act until the complaint is made by the 14 (M.Cr.C. No.3154/2020) "appropriate authority concerned", "any officer authorized" or "appropriate authority". On conjoint reading of Section 17(3)(a)
(b) and Section 28(1)(a) makes it clear for the purpose of Section 17(3)(a) it would be the "appropriate authority concerned" or the "appropriate authority" and for the purpose of Section 17(3) (b), if appointment is for any part of the State amongst officer of such other rank, it would be an appropriate authority or officer authorized in this behalf for the part of the State. However, looking to the notification of the State Government dated 20.4.2007, the appropriate authority may nominate an executive Magistrate for monitoring of execution of provisions of the Act. Thus, power of the appropriate authority to appoint any person is limited for the purpose of monitoring of the execution of the Act and not for filing of the complaint. In the said context and looking to the language of Section 28(1), it is apparent that the Court can take cognizance of an offence under the Act except on a "complaint made by the officer authorized"
or the appropriate authority" notified by the State Government.
Thus making of complaint would complete when it is signed and filed by the officer authorized or appropriate authority. The aforesaid can be elaborated in the context following the analogy 15 (M.Cr.C. No.3154/2020) that until judgment is signed and communicated, it cannot be said to be a judgment made by a Judge. The Apex Court in the case of Surendra Singh and others Vs. State of Uttar Pradesh reported in AIR 1954 SC 194 has highlighted the said principle, which is followed in the Full Bench judgment of Allahabad High Court in Samgam Lal Vs. Rent Control and Eviction Officer, Allahabad and others reported in AIR 1966 All 221, therefore, it can safely be held that until the complaint is signed and presented before the competent Court by the officer authorized or appropriate authority as notified by the State Government, the Court cannot take cognizance on such complaint. If in the statute provision prescribes a condition to exercise the statutory power distinguished from the duty by a person or officer must be construed as specified in the statute treating it to be a mandatory requirement. Therefore, for the present case, it would be the Collector, District Bhopal who may sign and file the complaint on behalf of the State Government but it cannot be made on behalf of the State by the Chief Medical and Health Officer, Bhopal as admitted in the return.
The aforesaid view is fortified from the judgment in the case of Manvinder Singh Gill (Dr.) Vs. State of M.P. (supra) wherein 16 (M.Cr.C. No.3154/2020) after referring the provisions of Section 17(2), (3)(b) and also in reference to the notification issued by the State Government, the Court has laid down thus:-
16. It is relevant to observe here that the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Adhiniyam & Rules is special enactment. The said Adhiniyam has been introduced with an object to prohibit the sex selection. The legislature intent is to restrain the sex determination before or after conception and for regulation of Pre-natal Diagnostic Techniques for the purpose of and detecting genetic abnormalities and metabolic disorder or chromosomal or certain technical male formation or sex link disorder and for prevention of their misuse or sex determination leading to female foeticide. In this regard, the stringent provision has been made and the procedure has also been specified codifying all the possibilities. On commission of the offence and after conviction, jail sentence and suspension or cancellation of the registration of the Genetic Counselling Center, Generic Laboratory or Genetic Clinic is there. In case the Central Government by enacting the law making stringent provisions want to implement it, then the Central or State Government are also bound to follow the procedure as prescribed in the Adhiniyam. If the action is taken by the State authorities in violation to the statutory provisions and the procedure as prescribed, it can be writ large. It is a settled principle of law that no one can be deprived by the right without following the procedure established under the law. However, in the present case without following the provisions and the procedure prescribed under PC & PNDT Adhiniyam the private complaint has been filed by the State authorities whereupon the cognizance has been taken by the Court which cannot be regarded as per law and on account of violation of the statutory provisions the Court can pass the appropriate order for quashing such complaints and by setting aside the order taking cognizance, in exercise of power under Section 482 of Cr.P.C.17
(M.Cr.C. No.3154/2020)
23. Assailing the said judgment, SLP (Cri.) No. 2226/2014 was filed before Hon'ble the Apex Court, which was dismissed on 3.8.2015 wherein Hon'ble the Apex Court has observed as under:-
"By the impugned order, the High Court after noticing that the person who prosecuted the respondent did not come within the definition of "Appropriate Authority" as stipulated under Section 17(3) of the Pre-Conception and Pre-Natal Diagnostic Technique (Prohibition of Sex Selection) Act, 1994 [hereinafter referred to as 'the Act'] held that the complaint was not maintainable.
We perused Section 28(1)(a) of the Act which reads as under:-
"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;"
When read carefully it emerges that the Authority is vested in three officers, namely, the Appropriate Authority, i.e. the authority as notified under Section 17(3) of the Act apart from any officer authorised in that behalf either by the Central Government or the State Government or by the concerned Appropriate Authority notified under Section 17(3) itself.
In the case on hand, however, the High Court has noted that the officeers who were authorised by the concerned appropriate authorities to help the Appropriate Authority to monitor and have effective implementation of the Act cannot construed as officers authorised in that behalf as provided under Section 28(1) (a) of the Act. The High Court had, therefore, no other go except to set aside the proceedings initiated at the instance of the petitioner and while setting aside the same gave liberty to the petitioner to take appropriate recourse under the provisions of the Act.
Learned counsel for the petitioner, however, drew our attention to paragraph 11 of the impugned judgment wherein while considering Section 17(3)(b) and (28)(1)(a) of the Act, the High Court stated that 18 (M.Cr.C. No.3154/2020) action under the Act can be taken by the Court only when a complaint is made by "the appropriate authority" or "by any officer authorised by the Central Government or State Government, otherwise such action would not be valid in law.
While stating so, the High Court has omitted to note that under Section 28(1)(a) any officer authorised by the "Appropriate Authority" notified under Section 17(3) would also be entitled to initiate action under the Act.
While clarifying the said position, since we do not find any flaw in the ultimate order of the High Court based on the facts noted in the case on hand, we do not propose to interfere with the same.
The Special Leave Petitions stand disposed of with the above clarification."
(emphasis supplied)
24. Learned Govt. Advocate much emphasis on the observation made by Hon'ble the Apex Court observing that the High Court omitted under Section 28(1)(a) of the Act, any officer authorized by the appropriate authority notified under Section 17(3) would also be entitled to initiate action under the Act. It is submitted by him, the said observation may be contrary to the provision of Section 17(3) but in view of the observation made in the judgment of the Apex Court it would operate as law. In this regard, it is suffice to observe that this Court has already discussed the provisions of Section 17(2)(3)(a) and (b) and also Section 28(1) of the PC and PNDT Act. It is not for the Court to say that observation in the judgment is in consonance to the provision of the Act or not. Therefore, in the facts of the present 19 (M.Cr.C. No.3154/2020) case, it is held that complaint has not made by "appropriate authority" or any officer authorized by the State Government under the provision of PC and PNDT Act, however, the trial Court cannot take cognizance as specified under Section 28(1)
(a) of the PC and PNDT Act, therefore, the order taking cognizance passed by trial Court is not in accordance to law.
25. In view of the foregoing discussion, this petition under Section 482 of the Cr.P.C. is hereby allowed. The criminal proceedings under Sections 482 of Cr.P.C. initiated against the petitioner under Sections 23 and 25 of the "PC & PNDT ACT' as well as further proceedings which are pending before the C.J.M., Indore in Criminal Case No.381/PNDT/2019 are, hereby, quashed. However, it is open to the appropriate authority to take action as permissible under the law. In the facts parties to bear their own costs.
(Ms. Vandana Kasrekar) Judge pn Digitally signed by Preetha Nair Date: 2020.06.29 13:38:38 +05'30' 20 (M.Cr.C. No.3154/2020)