Orissa High Court
Satyabrata Patel vs State Of Orissa ......... Opposite ... on 29 July, 2019
Equivalent citations: AIRONLINE 2019 ORI 130, (2019) 202 ALLINDCAS 789, (2019) 75 OCR 675, (2020) 129 CUT LT 119
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 2419 Of 2017
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with 2(C) CC No. 1630 of 2012
pending on the file of learned S.D.J.M, Jharsuguda.
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Satyabrata Patel ......... Petitioner
-Versus-
State of Orissa ......... Opposite party
For Petitioner: - Mr. B.K.Ragada,
L.N.Patel, N.KDas,
U.C.Dora & H.K.Muduli
For Opp. Party: - Mr. Prem Kumar Patnaik
(Addl. Govt. Advocate)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 29.07.2019
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S. K. SAHOO, J. The petitioner Satyabrata Patel has filed this
application under section 482 of Cr.P.C. challenging the
impugned order dated 05.08.2017 passed by the learned
S.D.J.M., Jharsuguda in 2(C) CC No. 1630 of 2012 in taking
cognizance of the offences under sections 23 and 25 of the Pre-
conception and Pre-natal Diagnostic Techniques (Prohibition of
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Sex Selection) Act, 1994 (in short, "PCPNDT Act") and issuance
of process against him.
2. The complaint petition was filed by the DTO -cum-
Authorised Officer of the District Appropriate Authority,
Jharsuguda under the PCPNDT Act against the petitioner and
others wherein it is stated that the State PC & PNDT monitoring
team visited Jharsuguda on 22.08.2012 for a surprise inspection
and met the Collector-cum- District Appropriate Authority,
Jharsuguda and appraised the latter regarding one unregistered
ultrasound clinic run by the petitioner. The Collector-cum-
District Appropriate Authority authorized Dr.Hrushikesh Naik, the
DTO vide order No.324 dated 22.08.2012 to inspect the
ultrasound clinic along with the State team. The State team
proceeded to the Doctors Chamber, Jyoti Medical Store near
Hotel Gourav, Main Road, Behermal, Jharsuguda at about 1.30
p.m. During such inspection, the team found 2-3 patients were
present in the ultrasound clinic and waiting for the ultrasound
test and the petitioner was conducting ultrasound test of one
patient namely, Debanda Patel, S/o. Late Laxman Patel,
At/P.O.Jhirpali, P.S.Likera, District- Jharsuguda. It is stated in
the complaint petition that the ultrasound clinic was run by the
petitioner without registration and he unauthorisedly purchased
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the portable ultrasound machine bearing model No.DP-6600,
Serial No.BE-75-5898 from Greaves Systems, P-597, Hemanta
Mukhopadhaya Sarani (Keyatola Road), 3rd floor, Kolkata-700
029. During course of inspection, the petitioner himself admitted
that the ultrasound clinic in the name and style of "Doctors
Chamber" is not registered under the PCPNDT Act and he is not a
trained person as per PCPNDT Rules, 1996 and that the clinic
was not maintaining the mandatory records as per the said Act
and that he had purchased the said un-registered ultrasound
machine since 28.05.2007. During inspection, the statement of
the petitioner was recorded in presence of the inspection team,
the C.D.M.O. and other witnesses. It is also stated in the
complaint petition that the petitioner is a Government doctor
being posted as Medical Officer, O.S.A.P. Hospital, Jharsuguda
and unauthorisedly he was conducting ultrasound test of the
pregnant women involving sex selection practices in the said
chamber by using the unregistered portable ultrasound machine
and also doing infertility cases in the said clinic. It is also stated
that the petitioner was not a qualified person to perform the
ultrasound test as per Rule 3(3)(1)(b) of the PCPNDT Rules,
1996. It is also stated that the manufacturer of the said
ultrasound machine MINDRAY knowing the provisions of the said
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Act, unauthorisedly sold the ultrasound machine to the petitioner
through the dealer, Greaves Systems P-597, Hemanta
Mukhopadhaya Sarani (Keyatola Road), 3rd Floor, Kolkata-700
029 violating the prevision of section 3-B of the PCPNDT Act and
Rule 3-A of the PCPNDT Rules. The authorized signatory, namely,
Debasish Chothria for Greaves Systems is also responsible along
with MINDRAY ultrasound manufacturer for violation of the
provisions of the PCPNDT Act and PCPNDT Rules. During course
of inspection, the following articles of the said clinic were seized:
(i) One portable ultrasound machine bearing model DP-
6600, Serial No.BE-75-5898.
(ii) Report on abdomen and pelvic sonography of the
clinic 54 nos.
(iii) Ultrasound scan report- two numbers.
(iv) Xerox scan report- 3 nos.
(v) Prescription pad of Dr.Satyabrata Patel
(vi) Invoice of portable ultrasound machine bearing
model DP-6600, Serial No.BE-75-5898 in favour of
Dr.Satyabrata Patel.
(vii) Xerox copy of certificates and other seized papers.
While filing the complaint petition, the complainant has
filed the following documents:
(a) Notification of the Government as District
Appropriate Authority.
(b) Seizure list dated 22.08.2012
(c) Report on abdomen and pelvic sonography of the
clinic 54 nos.
(d) Ultrasound scan report- two numbers.
(e) Xerox scan report- 3 nos.
(f) Prescription pad of Dr.Satyabrata Patel
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(g) Invoice of portable ultrasound machine bearing
model DP-6600, Serial No.BE-75-5898 in favour of
Dr.Satyabrata Patel.
(h) Xerox copy of certificates and other seized papers.
(i) Statements of witnesses.
3. It appears that after filing of the complaint petition
on 05.11.2012, the learned S.D.J.M., Jharsuguda took
cognizance of the offence under section 28(2) of the PCPNDT Act
and directed for issuance of process against the petitioner. The
petitioner challenged the said order by filing an application under
section 482 of Cr.P.C. before this Court vide CRLMC No. 215 of
2017 and this Court by order dated 14.07.2017 quashed the
impugned order as cognizance was not taken under any penal
provision and section 28(2) of the PCPNDT Act only specifies the
jurisdiction of the Court, who can try the offences under the said
Act. This Court held that penal provision is necessary to be
mentioned so that the accused can know what charge is levelled
against him and what punishment is prescribed for the offence.
The matter was remitted back to the learned S.D.J.M.,
Jharsuguda for reconsideration on the question of taking
cognizance of offences. After receipt of the order of this Court,
the learned S.D.J.M., Jharsuguda perused the complaint petition,
the notification of the Government as District Appropriate
Authority, seizure list, statements of witnesses, invoice and
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chalan of the ultrasound machine and other equipments in
favour of the petitioner, sanction order and other connected
papers and being satisfied about the existence of prima facie
case for commission of the offences under sections 23 and 25 of
the PCPNDT Act, took cognizance of such offences and issued
process against the petitioner.
4. Mr.B.K. Ragada, learned counsel appearing for the
petitioner challenged the impugned order mainly on two
grounds; i.e. (i) since the punishment prescribed for the offence
under section 23 of the PCPNDT Act is up to three years and the
punishment prescribed for the offence under section 25 of the
said Act is up to three months, the offence having been taken
place as per the complaint petition on 22.08.2012, the order
taking cognizance on 05.08.2017 is beyond the prescribed period
of limitation in view of section 468 of Cr.P.C. and (ii) when the
surprise inspection was made on 22.08.2012 in the clinic in the
name and style of "Doctors Chamber", Jyoti Medical Store near
Hotel Gourav Main Road, Behermal, Jharsuguda, no female
person was present in the clinic and one Dr.Debasis Behera had
applied for registration of the clinic and therefore, filing of the
complaint petition against the petitioner and that too for
commission of the offences under the PCPNDT Act is illegal.
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Mr. Prem Kumar Patnaik, learned Addl. Government
Advocate, on the other hand, supported the impugned order and
contended that when the matter was remanded back by this
Court in CRLMC No.215 of 2017 after perusing the complaint
petition and all other relevant documents, which were filed along
with such complaint petition, the impugned order has been
passed and the relevant date for considering the period of
limitation is the date of filing of the complaint petition and not
the date of taking cognizance. It is further submitted that since
during inspection, it was found that the petitioner was
performing the test and the ultrasound machine and the reports
seized also substantiated that tests were being conducted in an
unregistered clinic in violation of the provisions of the PCPNDT
Act and therefore, there is no illegality or infirmity in the said
order.
5. Adverting to the contentions raised by the learned
counsel for the respective parties, let me first consider the point
relating to the cognizance being taken beyond the prescribed
period of limitation.
There is no dispute that section 23 of the PCPNDT Act
prescribes a punishment for a term which may extend to three
years and with fine, which may extend to rupees ten thousand
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rupees for any medical geneticist, gynaecologist, registered
medical practitioner or any person who owns a Genetic
Counselling 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
if he contravenes any of the provisions of the PCPNDT Act or the
Rules made thereunder and on subsequent conviction, the
imprisonment may extend to five years and with fine, which may
extend to fifty thousand rupees. Similarly, section 25 of the
PCPNDT Act prescribes punishment up to three months or with
fine, which may extend to one thousand rupees or with both in
case of contravention of the provisions of the Act and rules for
which no specific punishment is prescribed 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.
6. In the case at hand, the offence was detected on
22.08.2012 in Doctors Chamber, Jyoti Medical Store near Hotel
Gourav Main Road, Behermal, Jharsuguda when the authorized
officer with the monitoring team visited the clinic and the
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complaint petition was filed on 05.11.2012, which was within
three months of such detection.
Section 468 of Cr.P.C. creates a bar to take
cognizance after lapse of the period of limitation and in sub-
section (2)(c), the period of limitation prescribed is three years,
if the offence is punishable with imprisonment for term
exceeding one year but not exceeding three years. In the case of
Japani Sahoo Vrs. Chandra Sekhar Mohanty, reported in
(2007) 38 Orissa Criminal Reports (SC) 309, the Hon'ble
Supreme Court has held that for the purpose of computing the
period of limitation, the relevant date must be considered as the
date of filing of the complaint or initiating the criminal
proceeding and not the date of taking cognizance by a Magistrate
or issuance of process by a Court and accordingly, all the
decisions in which it was held that the crucial date for computing
the period of limitation is taking of cognizance by the Magistrate/
Court and not of filing of complaint or initiation of criminal
proceedings, were over-ruled.
In view of the settled position of law as decided in
the case of Japani Sahoo (supra), I am not inclined to accept
the contention raised by the learned counsel for the petitioner
that the impugned order dated 05.08.2017 is beyond the period
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of limitation since the complaint petition has been filed within
three months of detection of offence which is within the
prescribed period of limitation.
7. Coming to the next contention, it appears that from
the materials available on record that the petitioner is not a
trained person as per the PCPNDT Rules and the Doctors
Chamber where the ultrasound test was conducted, is not a
registered one as per PCPNDT Act. The ultrasound machine and
the reports, which were seized along with the statements of
witnesses prima facie reveal that tests were being conducted
without following the provisions of the said Act and Rules.
Section 3-A of the PCPNDT Act creates a prohibition
of sex selection and it states that no person, including a
specialist or a team of specialists in the field of infertility, shall
conduct or cause to be conducted or aid in conducting by himself
or by any other person, sex selection on a woman or a man or
on both or on any tissue, embryo, conceptus, fluid or gametes
derived from either or both of them. Similarly, section 3-B
creates a prohibition on sale of ultrasound machine etc, to
persons, laboratories, clinics etc. not registered under the Act.
Needless to say that under Chapter-VI of the said
Act, procedure has been prescribed regarding application to be
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made for registration of genetic counseling centres, genetic
laboratories and genetic clinics and after application is made with
prescribed fees, the appropriate authority is to hold an inquiry
and after being satisfied that the applicant has complied with all
the requirements of the Act and the Rules framed thereunder
and having regard to the advice of the Advisory Committee in
that behalf can grant certificate of registration in the prescribed
form and after obtaining such registration certificate, a person
can purchase ultrasound machine or imaging machine or scanner
or any other equipments for establishing a Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinics. In this case since
no registration certificate has been obtained by the Doctors
Chamber and the petitioner is not a trained person to conduct
such test, I am of the humble view that prima facie case under
sections 23 and 25 of the PCPNDT Act is made out.
8. The scope of interference of this Court with an order
of taking cognizance by invoking the power under section 482 of
Cr.P.C. is very limited and it is to be sparingly used only when
the ingredients of the offences are not made out or to prevent
the abuse of the process of the Court or otherwise to secure the
ends of justice. After perusing the materials available on record,
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I find no illegality or infirmity in the impugned order. Therefore, I
am not inclined to interfere with the same.
9. The learned S.D.J.M., Jharsuguda shall proceed with
the case and since it is a case of the year 2012, all endeavours
should be made to conclude the trial within a period of six
months from the date of receipt of a copy of this judgment. It is
made clear that I have not expressed any opinion on the merits
of the case and while adjudicating the guilt or otherwise of the
petitioner, the learned trial Court shall strictly take into the
evidence adduced by both the sides during trial.
A copy of this judgment be sent to the learned
S.D.J.M., Jharsuguda forthwith.
With the aforesaid observation, the CRLMC stands
disposed of.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 29th July 2019/PKSahoo