Karnataka High Court
Dr.Mallanagouda vs The State Of Karnataka & Anr on 7 June, 2018
1 W.P.No.200185/2018
C/W.W.P.No.200186/2018 &
W.P.No.200187/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
WRIT PETITION NO.200185/2018
C/W
WRIT PETITION NO.200186/2018 AND
W.P.NO.200187/2018
W.P.No.200185/2018
BETWEEN:
DR.MALLANAGOUDA S/O MELAPPAGOUDA PATIL
AGE: 67 YEARS OCC: MEDICAL PRACTITIONER
SENIOR CITIZEN NOT CLAIMED
R/O: BASAVESHWAR NAGAR, OPP: BLDEA HOSPITAL
ASHRAM ROAD, VIJAYAPUR
... PETITIONER
(BY SRI.R.S.BIDARI & SANJEEVKUMAR.C.PATIL,
ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
THROUGH, THE DEPUTY COMMISSIONER
DISTRICT APPROPRIATE AUTHORITY
PRE-CONCEPTION AND PRE-NATAL
DIAGNOSTIC TECHNIQUES (PROHIBITION OF
SEX SELECTION) (PCPNDT)
OF VIJAYAPUR-586101.
2 W.P.No.200185/2018
C/W.W.P.No.200186/2018 &
W.P.No.200187/2018
2. DR.GUNDAPPA S/O SANGAPPA
AGE: 56 YEARS
THE DISTRICT HEALTH AND FAMILY
WELFARE OFFICER, VIJAYAPUR
DISTRICT: VIJAYAPUR-586101.
...RESPONDENTS
(SRI.MALLIKARJUN SAHUKAR, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 AND 227 OF CONSTITUTION OF INDIA READ
WITH SECTION 482 OF CR.P.C. PRAYING TO ISSUE A
WRIT, DIRECTION OR ORDER IN THE NATURE OF
CERTIORARI BY QUASHING ANNEXURE-B PRIVATE
COMPLAINT AND PROCEEDINGS OF C.C.NO.368/2016
PENDING ON THE FILE OF IST ADDL. JMFC
VIJAYAPUR AND ISSUE A WRIT, DIRECTION OR
ORDER WHICH DEEM FIT UNDER THE FACT AND
CIRCUMSTANCES OF THE CASE.
W.P.No.200186/2018
BETWEEN:
DR.KIRAN S/O VASANTLAL OSWAL
AGE: 48 YEARS OCC; MEDICAL PRACTITIONER
R/O: SHANTI NAGAR, BLDE ROAD,
VIJAYAPUR.
... PETITIONER
(BY SRI.R.S.BIDARI AND SANJEEVKUMAR.C.PATIL,
ADVOCATES)
3 W.P.No.200185/2018
C/W.W.P.No.200186/2018 &
W.P.No.200187/2018
AND:
1. THE STATE OF KARNATAKA
THROUGH, THE DEPUTY COMMISSIONER
DISTRICT APPROPRIATE AUTHORITY
PRE-CONCEPTION AND PRE-NATAL
DIAGNOSTIC TECHNIQUES (PROHIBITION OF
SEX SELECTION) (PCPNDT) OF
VIJAYAPUR-586101.
2. DR.GUNDAPPA S/O SANGAPPA
AGE: 56 YEARS
THE DISTRICT HEALTH AND FAMILY
WELFARE OFFICER, VIJAYAPUR
DISTRICT: VIJAYAPUR-586101.
...RESPONDENTS
(SRI.MALLIKARJUN SAHUKAR, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 AND 227 OF CONSTITUTION OF INDIA READ
WITH SECTION 482 OF CR.P.C. PRAYING TO ISSUE A
WRIT, DIRECTION OR ORDER IN THE NATURE OF
CERTIORARI BY QUASHING ANNEXURE-C PRIVATE
COMPLAINT AND PROCEEDINGS OF C.C.NO.369/2016
at ANNEXURE-D PENDING ON THE FILE OF IST ADDL.
JMFC VIJAYAPUR AND ISSUE A WRIT, DIRECTION OR
ORDER WHICH DEEM FIT UNDER THE FACT AND
CIRCUMSTANCES OF THE CASE.
4 W.P.No.200185/2018
C/W.W.P.No.200186/2018 &
W.P.No.200187/2018
W.P.No.200187/2018
BETWEEN:
DR.KIRAN S/O VASANTLAL OSWAL
AGE: 48 YEARS OCC: MEDICAL PRACTITIONER
R/O: SHANTI NAGAR, BLDE ROAD,
VIJAYAPUR.
... PETITIONER
(BY SRI.R.S.BIDARI AND SANJEEVKUMAR.C.PATIL,
ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
THROUGH, THE DEPUTY COMMISSIONER
DISTRICT APPROPRIATE AUTHORITY
PRE-CONCEPTION AND PRE-NATAL
DIAGNOSTIC TECHNIQUES (PROHIBITION OF
SEX SELECTION) (PCPNDT) OF
VIJAYAPUR-586101.
2. DR.GUNDAPPA S/O SANGAPPA
AGE: 56 YEARS
THE DISTRICT HEALTH AND FAMILY
WELFARE OFFICER, VIJAYAPUR
DISTRICT: VIJAYAPUR-586101.
...RESPONDENTS
(SRI.MALLIKARJUN SAHUKAR, HCGP)
5 W.P.No.200185/2018
C/W.W.P.No.200186/2018 &
W.P.No.200187/2018
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 AND 227 OF CONSTITUTION OF INDIA READ
WITH SECTION 482 OF CR.P.C. PRAYING TO ISSUE A
WRIT, DIRECTION OR ORDER IN THE NATURE OF
CERTIORARI BY QUASHING ANNEXURE-C PRIVATE
COMPLAINT AND PROCEEDINGS OF
C.C.NO.6293/2017 (CASE NO.P.C.R-24/2016)
PENDING ON THE FILE OF IVTH ADDL. JMFC
VIJAYAPUR AND ISSUE A WRIT, DIRECTION OR
ORDER WHICH DEEM FIT UNDER THE FACT AND
CIRCUMSTANCES OF THE CASE.
THESE PETITIONS ARE COMING ON FOR
PRELIMINARY HEARNIG-B GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard.
2. The petitioners in all these three cases are registered medical practitioners. They are running Pre- Natal Diagnostic Centers at Vijayaapur Town. The registration certificates of their Diagnostic Centers are produced in all these cases at Annexure-A. 6 W.P.No.200185/2018 C/W.W.P.No.200186/2018 & W.P.No.200187/2018
3. It is alleged that on 08.01.2016 the Vigilance Squad formed by the Competent Authority under PCPNDT Act, conducted surprise inspection of the Units/Diagnostic Centers of the petitioners, exercising power conferred under Section 17 (4) (g) of the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short 'the PCPNDT Act, 1994').
4. It is alleged that during such inspection the following shortfalls in maintaining the records were found:-
(A) The bill books were not produced, (B) Scanning Registers were not properly maintained, (C) Particulars of patients were not properly entered in Form-F, (D) Signatures of the Doctors were not found in Form-F. (E) OPD Registers were not properly maintained, (F) Old Form-F were maintained and were being used instead of new Form-F, 7 W.P.No.200185/2018 C/W.W.P.No.200186/2018 & W.P.No.200187/2018 (G) Form-F used in the Centers were in English language instead of Kannada language, (H) Referral slips of Doctors issued by the Referral Doctors were not found.
5. On the basis of such inspection report respondent No.2 filed complaint under Section 200 Cr.P.C against the petitioners, to prosecute them for violation of Section 23 PCPNDT Act, 1994 and Rule 9. The Magistrate took cognizance of the matters. Now they are pending against the petitioners as follows :-
Sl. Petitioner in W.P. C.C.No. Court No.
01. W.P.200185/2018 CC.368/2016 I Addl. Civil Judge and JMFC-I, at Vijayapur
02. W.P.200186/2018 CC.369/2016 I Addl. Civil Judge and JMFC-I at Vijayapur
03. W.P.200187/2018 CC.6293/2017 IV Addl. Civil Judge and JMFC-III at Vijayapur.8 W.P.No.200185/2018
C/W.W.P.No.200186/2018 & W.P.No.200187/2018
6. The petitioners seek to quash the above said proceedings on the following grounds.
(A) The filing of complaints and taking cognizance are in violation of Section 28 PCPNDT Act, 1994.
(B) The cognizance was taken without any proof of competence of complainant to file the complaints.
(C) The complainant being public servant.
The complaints were filed through
private advocate without any
government authorization to such
private advocate.
(D) Order is violative of principle of natural justice and contrary to the scheme of the Act in such cases.
7. In the complaint there are allegations of violation of Section 23 and Rule-9 PCPNDT Act, 1994. The Rule-9 speaks about maintenance of Registers and Records.
9 W.P.No.200185/2018
C/W.W.P.No.200186/2018 & W.P.No.200187/2018
8. Section 28 of PCPNDT Act, 1994 deals with taking cognizance which read as follows :-
"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
authorized 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.
(2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first 10 W.P.No.200185/2018 C/W.W.P.No.200186/2018 & W.P.No.200187/2018 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.
9. On perusal of Section, it goes to show that the complaint is to be filed by the 'Appropriate Authority' concerned or any officer 'authorized' in this behalf by Central Government or State Government as the case may be, or by the 'Appropriate Authority'. The Appropriate Authority defined under Section 2 (a), "Appropriate Authority" means the Appropriate Authority appointed under Section 17 (2). The Section 17 in turns states that, the State Government, by notification in the Official Gazette, shall appoint 'Appropriate Authority'.
11 W.P.No.200185/2018
C/W.W.P.No.200186/2018 & W.P.No.200187/2018
10. In these cases the complaints are filed by the District Health Officer i.e., respondent No.2. In the complaints it is stated that the Vigilance Squad, raided on authorization of Appropriate Authority under Government Notification mentioned therein and orders of Planning Director of Health and Social Family Welfare and the Deputy Director of PC&PNDT etc., The notification, orders or authorization are not produced along with the complaints.
11. Respondent No.2 in the complaints does not even state that he was authorized by 'Appropriate Authority' to file aforesaid complaints to prosecute the petitioners. Having regard to that, there was no compliance of Section 28 (1) (a) of PCPNDT Act, 1994. There is force in the contention that in the absence of production of such notification, the complaints are incompetent.
12 W.P.No.200185/2018
C/W.W.P.No.200186/2018 & W.P.No.200187/2018
12. The complaints were filed through private advocate without any authorization of appropriate authority representing the complainant or Government Authorization. Since, the representation of the complainant before the court at inception was not under authorization of Appropriate Authority or Government, even that objections of the petitioners are sustainable.
13. In the similar matter before the High Court of Judicature at Bombay Bench at Aurangabad in Dr.Sai w/o Santosh Shiradkar v/s The State of Maharashtra and another in Criminal Writ Petition No.1381/2015, similar action was challenged on the ground of violation of principles of natural justice. It was contended that before filing of complaint, the Appropriate Authority should have given opportunity to the alleged defaulters and taken their explanation, sought the compliance.
13 W.P.No.200185/2018
C/W.W.P.No.200186/2018 & W.P.No.200187/2018
14. In that case court held that having regard to scheme of the Act, Sections 17(4), (a), 28, 29 and Rule- 9, whenever any omissions or commissions in compliance of Act and Rules are found, the appropriate authority has to seek explanation of the defaulters to find out, whether there is any criminal intention in such violation. It was further held that, if there is scope for correction, no criminal intention is found, compliance can be permitted. Over all it is stated that an opportunity shall be given to defaulters, before taking recourse to prosecution of the defaulters.
15. The learned counsel for the petitioners submits that judgment in Dr.Sai's case referred to supra, was confirmed by the Hon'ble Supreme Court in Special Leave to Appeal (Crl) CRL.M.P.No.5636/2017 on 17.04.2017. He produces the copy of the said order. 14 W.P.No.200185/2018
C/W.W.P.No.200186/2018 & W.P.No.200187/2018
16. For the reasons stated supra the trial Court has committed error in taking cognizance of the matter thereby causing gross injustice to the petitioners. Therefore, petitions are allowed.
17. The impugned proceedings before (1) I. Additional Civil Judge and JMFC-I at Vijayapur in C.C.No.368/2016, (2) I Addl. Civil Judge and JMFC-I at Vijayapur in C.C.No.369/2016 and (3) IV Addl. Civil Judge and JMFC III at Vijayapur in C.C.No.6293/2017 against the petitioners are hereby quashed. The liberty is reserved to the respondents to proceed in accordance with law.
Sd/-
JUDGE KJJ