Delhi District Court
Neeraj Sharma vs State (Govt Of Nct Of Delhi) on 24 April, 2023
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE-04: WEST DISTRICT
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-007295-2022
Crl. Rev. No. 220/2022
NEERAJ SHARMA
S/O SHRI ANAND PRAKASH SHARMA,
R/O A-15, TAGOR MARKET, KIRTI NAGAR,
NEW DELHI-110015
........ REVISIONIST
Vs.
STATE (GOVT OF NCT OF DELHI)
....... RESPONDENT
&
CNR No. DLWT01-011339-2022
Crl. Rev. No. 438/2022
NEELAM
W/O SH. KAWAL SINGH MALIK
R/O A-16, DOUBLE STOREY, RAMESH NAGAR,
NEW DELHI-110015
........ REVISIONIST
Vs.
STATE (GOVT OF NCT OF DELHI)
....... RESPONDENT
Crl. Rev. No. 220/22 & 438/22 Neeraj & Neelam Vs. State Page no. 1 of 6
Date of Institution of case : 02.08.2022 & 28.11.2022
Date of decision : 24.04.2023
Decision : Dismissed
JUDGMENT
1. These are two separate revision petitions u/s 397 Cr.PC preferred by revisionists namely Neeraj Sharma and Neelam Kumari against the order dated 25.02.2022 passed by Ld CMM/West, Tis Hazari Court vide which Ld CMM took cognizance and summoned the accused persons/revisionists herein in case FIR bearing No. 484/2020, PS Kirti Nagar, u/s 4/5/6/23 PC & PNDT Act & section 120 IPC titled as State Vs. Neeraj Sharma & Anr.
2. I have heard arguments on the present revision petitions and perused the record.
3. Both the revisionists have challenged the impugned order dated 25.02.2022 passed by Ld. CMM/West/THC wherein Ld. CMM took the cognizance of the offence committed in case FIR no. 484/20 PS Kirti Nagar and summoned the revisionists for the offences u/s 4/5/6/23 of PC & PNDT Act, 1994 and 120B IPC.
4. Ld. Counsels for the revisionists have argued that no complaint under section 28 of PC & PNDT Act (hereinafter referred to as 'the Act') has been filed by the appropriate authority appointed by Central or State Government as per terms of section 17 of PC & PNDT Act for any contravention or violation of any provision of PC & PNDT Act or rule. Ld. Counsels have also argued that the said complaint under section 28 of the Act could Crl. Rev. No. 220/22 & 438/22 Neeraj & Neelam Vs. State Page no. 2 of 6 be filed within the period of 03 years from the registration of FIR by the District Magistrate, North District since District Magistrate has been appointed by the State as Appropriate Authority in terms of section 17 of the Act vide notification no. F-97/1/DFW/PNDT/03/Pt/327-339 dated 18.05.2009 read with notification no. F.9(1) (2)/PNDT/DFW/03/3304-3319 dated 23.04.2014.
5. Both the Ld. Counsels have argued that as per section 28 of the Act, a separate complaint under section 28 of PC & PNDT Act ought to have been filed by the District Magistrate/District appropriate authority for the violation of the provision under PC and PNDT Act but in the present case, charge sheet has been filed with the said complaint. Ld. Counsels have also argued that in the absence of a complaint under section 28 of the Act, the Court could not have taken cognizance of the offence punishable under the said Act. Ld. Counsels have also relied upon certain judgments in the support of their contentions.
6. The main ground on which the present revision petition has been filed is the non-compliance of Section 28 of the PC-PNDT Act which mandates that no court shall take cognizances of the offences under the Act except on a complaint made by (A) appropriate Authority concerned, (B) any officer authorized in this behalf by Central or State Government and (C) or any officer authorized by the appropriate authority. The reliance is also placed upon section 17 of the Act which defines the term 'Appropriate Authority'.
Crl. Rev. No. 220/22 & 438/22 Neeraj & Neelam Vs. State Page no. 3 of 6
7. It is the well settled proposition of law qua the offences under the PC-PNDT Act that the Court of Metropolitan Magistrate is authorized to take cognizance only on a complaint made by the appropriate authority or any officer authorized in this regard either by Government or Appropriate Authority. The petitioners herein have placed on record the notification dated 23.04.2014 issued by Government of GNCT Delhi in exercise of the powers conferred upon it under Section 17(2) and 3(a) of the Act vide which the members of the State Appropriate Authority for National Capital Territory of Delhi have been enumerated. Further, by the same notification and in super session of early notification dated 18.05.2009, the District Appropriate Authority has been defined which is now the Deputy Commissioner (DC)/District Magistrate (DM) of the district concerned. In the present case in hand, the Appropriate Authority under the Act for filing the complaint is the D.M/DC, District West, Delhi.
8. Admittedly, as per the chargesheet, the present case was got instituted on the basis of FIR registered pursuant to the complaint made by Dr. Souharda Nath, DIMC (PNDT)West Delhi. After completion of the investigation, charge sheet under section 173 Cr.P.C was filed before the Ld. Trial Court.
9. It is pertinent to mention that IO Insp. Surya Prakash has also filed a letter dated 17.04.2023 issued by District Nodal Officer PC& PNDT Cell, West District wherein it has been categorically mentioned that no complaint under section 28 of the Act has been filed by District Crl. Rev. No. 220/22 & 438/22 Neeraj & Neelam Vs. State Page no. 4 of 6 Appropriate Authority (DAA) West till date.
10.Thus, no separate complaint by District Appropriate Authority as envisaged under the Act was before the Ld. Trial Court at the time of taking cognizance. The mere filing of the complaint to SHO Kirti Nagar by the Nodal officer is not the compliance of mandatory provisions of law. A separate complaint has to be there as had been decided by Hon'ble Supreme Court in Manvinder Singh Gill Vs. State of MP 2014 (134) AIC 580. It is also well settled proposition of law that once a law mandates certain act to be done in a particular manner, it has to be followed. (Reliance placed on A.K Roy & Anr vs State of Punjab, 1986 AIR 2160).
11.Apart from that, this issued has also been dealt with by Hon'ble Delhi High Court in case titled Harsh Mahajan & ors vs State of NCT of Delhi & ors, MANU/DE/1016/2016 wherein it has been held by Delhi High Court:-
"45. Even it it is taken as correct the same is not in compliance of the said section as in the said letter there is no reference of any offence under the PC- PNDT Act alongwith the name of the persons against whom the complaint is sought to be made as by that time by her own showing she suspected that the alleged sex determination was done upon her during the ultrasound at the Jaipur Golden Hospital and accordingly in the said letter was supposed to name the persons against whom she intends to make a complaint before the court of commission of offence under the PC-PNDT Act. The Magistrate had no jurisdiction to take cognizance on the complaint dated 22.11.2008 in view of the statutory bar under section 28 of the Crl. Rev. No. 220/22 & 438/22 Neeraj & Neelam Vs. State Page no. 5 of 6 PC-PNDT Act."
12.In view of the above said settled law, the complaint filed by the Nodal officer to the SHO PS Kirti Nagar, cannot be taken as complaint under section 28 of PC-PNDT Act. In view of the aforesaid discussion and well settled proposition of law, since no complaint under section 28 of the PC-PNDT Act has been filed before Ld. CMM, therefore, the order of taking cognizance for the offence under section 4/5/6/23 of PC-PNDT Act on the basis of charge sheet filed under section 173 Cr.P.C is bad in law and illegal and is liable to be set aside.
13.Hence, the impugned order dated 25.02.2022 of the Ld. Trial Court taking cognizance of the offences against the revisionists is accordingly set aside.
14.Both the revision petitions are accordingly disposed of.
15.TCR be sent back with copy of this order.
16.A copy of this order be also sent to the concerned District Magistrate, West, Delhi for perusal and appropriate necessary action, if any.
17.Both the revision petitions be consigned to Record Room.
18. Copy of order be sent to Ld Trial Court.
Digitally signed by MANISHANNOUNCED IN THE OPEN COURT MANISH KHURANA ON THIS 24th DAY OF APRIL 2023 KHURANA Date:
2023.04.24 15:48:20 +0530 (Manish Khurana) Additional Sessions Judge-04 West/Tis Hazari Courts Delhi/24.04.2023 Crl. Rev. No. 220/22 & 438/22 Neeraj & Neelam Vs. State Page no. 6 of 6