Delhi District Court
Dr. Nk Mohanty vs . Dp Dwivedi on 27 January, 2014
Dr. NK Mohanty Vs. DP Dwivedi
CR 156/13
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
1. Dr. N.K Mohanty Mohoanty Medical clinic,
WZ 1A, Palam Village, Near Syndicate Bank,
Main Road , New Delhi
...........Petitioner /accused
VERSUS
1. Sh. D P Dwivedi ,
Appropriate Authority,
under PCPNDT Act ,1994
Deputy Commissiner ( S/W) District,
Old Terminal Tax Building, Kapashera, New Delhi
............Respondent
CR No. 156/13
Date of Institution: 07.11.2013
Reserved for orders on: 20.1.2014
Order announced on: 27.01.2014
ORDER
1. Vide this order I shall dispose of this revision petition filed by the petitioner against the impugned order dt. 20.09.2013.
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2. Stating briefly, the case of petitioner/accused is that the accused/petitioner a qualified medical practitioner holding the requisite MBBS degree and the clinic of the accused/ petitioner was duly registered as " ultrasound clinic" u/s 19 (1) of the Preconception and Prenatal Diagnostic Techniques ( Prohibition of Sx Selection) Act, 1994 bearing registration no. DL /SW/2003/17 valid up to 26.8.2013. The clinic of the petitioner was inspected on behalf of respondent on 7.10.2011 and a show cause notice was issued to the petitioner to the effect that copy of consent of the pregnant woman as required u/s 5 (1) (c) of the Act was not obtained. The register containing the information as specified in rule 9 of the Act was not maintained. The record in Form F as prescribed under rule 9 (4) was not properly maintained. The accused/ petitioner was found performing ultrasound on the patient though not qualified under the Act. The petitioner filed his replies to the said notice and in support of said replies/ representations, the petitioner/accused also submitted documents such as renewal application forms dt. 23.5.2008, Form A, Affidavit, Certificate of Registration (Form B), and a copy of Judgment of Delhi High Court in WP(C) No. 6654/2007 in CA No.156/13 -:2/12 27.01.2014 Dr. NK Mohanty Vs. DP Dwivedi CR 156/13 support of his replies but the appropriate authority without considering the provisions of law, filed a criminal complaint against the petitioner.
3. The ld. trial court summoned the petitioner/ accused vide order dt.17.4.2012 for facing trial u/s 3(2) and rule 3 ( b) and Section 4, 29 and rule 9 of the Act punishable u/s 23 r/w Section 25 of the Act. The petitioner feeling aggrieved by summoning order had filed a revision petition and the said petitioner was dismissed by the revisional court vide judgment dt. 29.8.2013 .
4. It is further stated that feeling aggrieved from the said judgment and the action of the Govt. of NCT of Delhi , the petitioner filed Writ Petition (C) No. 6590 of 2013 challenging the notification dt. 18.5.2009 governing appointment of Appropriate Authority and the consequent legal proceeding against the petitioner and the Hon'ble High Court issued notice to the respondents but, in the meanwhile, ld. trial court passed impugned order dt. 20.9.2013 and framed notice against the petitioner for offence u/s 3 (2) and rule (b), Section 4, 29 and rule 9 of PNDT Act punishable u/s 23 r/w Section 25 of the above said Act.
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5. Feeling aggrieved from order dt. 20.09.2013 of framing notice , the present petition is preferred by the petitioner.
6. It is contended that the order dt. 20.9.2013 passed by the ld. trial court is contrary to the provisions of law and ld. trial court has wrongly framed notice for the said offences which are not specifically made punishable under the PNDT act and, thus, the residuary section 25 could only be attracted in the present case. It is further contended that the language of section 23 and 25 of PNDT Act, excludes each other, therefore, both Sections cannot be applied together and in view of the facts of the case, only section 25 of the PNDT Act is attracted.
7. It is further contended that while interpreting a penal statue, if more than one view is possible, the court is obliged to lean in favour of the constructions which exempt a citizen from penalty than the one which imposes the penalty, and even if, there is any lacuna in the law, it is not the duty of the court to repair or correct but the bounden duty of the court is to interpret the law and not to add or read something on the basis of supposed intendment of legislature. The benefit of such casus CA No.156/13 -:4/12 27.01.2014 Dr. NK Mohanty Vs. DP Dwivedi CR 156/13 omissus must be given to the accused. The job of plugging the loopholes must strictly be left to the legislature and not assumed by the court. In this regard he has relied upon 2003 11 SCC405.
8. It is further contended that the larger issue as regard the validity of the complainant i.e Appropriate Authority is already under challenged and is pending in High Court and the complainant already demitted his office and therefore, there is no more any competent person to act as complainant as per the recorded of the ld. trial court, as no application for substitution has been pressed or placed on record so far, thus rendering the whole proceedings vitiated, and as such the impugned order deserves to be set aside.
9. It is further contended that ld. trial court has framed notice u/s 251 Cr.PC by observing that all the offences involved in the present case are summon case trial but as the offences u/s 23 and 25 are punishable for the imprisonment up to 3 years so, the present trial cannot be treated as a trial of summon case otherwise the present case is a warrant case trial.
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10. Per contra , ld. counsel for the complainant/ respondent has contended that earlier, the revision petition against impugned order of summoning for the said offences has already been dismissed by holding that there was no illegality in the order of the ld. trial court and the petitioner has not challenged that order. Ld. counsel of the respondent further contended that notice has been rightly framed against the accused/ petitioner and this petition deserves to be dismissed.
11. I have heard ld. counsel of the parties and gone through the record.
12. At the very outset , it may be noted that offence u/s 23 and 25 of PNDT Act are punishable with sentence up to 3 years and offences which are punishable more than 3 years are warrant case and procedure provided under chapter XIX of the Code regulating trial of warrant cases by magistrates and part B of the said chapter provides the procedure in this regard.
13. It is relevant to note down here that Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate , the prosecution has CA No.156/13 -:6/12 27.01.2014 Dr. NK Mohanty Vs. DP Dwivedi CR 156/13 to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244. The expression " when such evidence has been taken" appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244 (1) of the Code.
14. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tantamounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section 246 thereof without the same being produced under Section 244 of the Code. The scheme of the two chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof CA No.156/13 -:7/12 27.01.2014 Dr. NK Mohanty Vs. DP Dwivedi CR 156/13 with or without investigation and inquiry, chapter XIX part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. It may be stated that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the approach that the Court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial . The difference lies in the fact that while the former is a process that is conducted in the absence of the accused , the latter is undertaken in his presence with an opportunity to him to crossexamine the witnesses produced by the prosecution. Therefore, there is a marked difference in the summon case trial and warrant case trial.
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15. From the above discussion, it may be observed here that the impugned order passed by the ld. trial treating the present trial case as summon case is illegal as offences u/s 23 & 25 of PNDT Act provides imprisonment up to three years as such, the disobedience to an express provision as to a mode of trial could not be regarded as a mere irregularity curable u/s 464,465 Cr.P.C
16. So far as the next contention of the ld. counsel for the petitioner is concerned that no charge can be framed u/s 23 and Section 25 of the PNDT Act simultaneously as the one offence exclude the other is devoid of merits in as much as charge can be framed in alternative and I would like to produce u/s 23 and 25 PNDT Act which provides as under:
17. Section 23 - Offences and penalties (1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counseling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of CA No.156/13 -:9/12 27.01.2014 Dr. NK Mohanty Vs. DP Dwivedi CR 156/13 this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
18. Section 25 Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.Whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention."
19. A bare perusal of both the sections make its crystal clear that none of those section excludes other. It may be noted that in code of Criminal procedure , the accused can be charged even for the offences regarding which there is a CA No.156/13 -:10/12 27.01.2014 Dr. NK Mohanty Vs. DP Dwivedi CR 156/13 doubt in this regard . I would like to produce under Section 221 Cr.PC which provides as under :
"Section 221. Where it is doubtful what offence has been committed(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be chaqrged in the alternative with having committed some one of the said offences"
20. A bare perusal of this section makes it crystal clear that if the act of the accused is of such a nature that it is doubtful which of several offences, the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences. Therefore, there is no substance in the arguments of the counsel of the petitioner that Section 25 is residuary section and the accused cannot be charged with offences simultaneously covered under Sections 23 and 25 of PNDT Act. Therefore, this contention is hereby rejected. Similar the contention regarding substitute of appropriate authority is also devoid of merit as the DM of CA No.156/13 -:11/12 27.01.2014 Dr. NK Mohanty Vs. DP Dwivedi CR 156/13 the South West has filed the complaint and after the transfer of the said officer, the new incumbent will be substituted in place of the former in due course of law.
21. From the above discussion, I am of the opinion that the impugned order whereby offences u/s 23 & 25 PNDT Act are held to be triable as summon case is illegal and deserves to be set aside . The same is hereby set aside. The ld. trial court is directed to proceed further with the trial as a warrant case trial. This petition is disposed of accordingly.
22. Needless to say that nothing stated herein shall tantamount to an expression of my opinion on the merits of the case.
23. TCR and copy of the order be sent to the Ld. Trial Court for information and compliance.
24. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya)
on the 27th of January, 2014 ASJ/ Dwarka Courts
New Delhi 27.01.2014
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