Delhi District Court
State Of Nct Of Delhi vs . Dr. N.K.Mohanty on 20 November, 2015
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(SOUTHWEST)02, DWARKA COURTS:DELHI
(Crl. Revision No. : 52/15)
Unique Case ID No. : 02405R0079672015
State of NCT of Delhi Vs. Dr. N.K.Mohanty
CC No. : 70A/1/12
U/s : 28 PNDT Act
PS : Palam Village
STATE OF NCT OF DELHI
Through Public Prosecutor .... Petitioner
Vs.
Dr. N.K.Mohanty,
Mohanty Medical Clinic,
WZ1A, near Syndicate Bank,
Main Road, Palam Village,
New Delhi ....Respondent
Date of institution of case09.7.2015
Date on which, order have been reserved07.11.2015
Date of pronouncement of order20.11.2015
ORDER
The present revision petition has been filed on behalf of the petitioner State against the impugned order dated 10.4.2015 passed by the Ld. Trial Court in the case titled as "D.P.Dwivedi ( Appropriate Authority PNDT Act ) Vs. Dr. N. K. Mohanty " bearing CC No. 70A/1/12 u/s 28 PNDT Act P.S: Palam Village.
CR No. 52/15 1/9 22. Brief facts necessary for the disposal of the present revisionpetition are that a complaint u/s 28 of Pre Natal Diagnostic Techniques ( Regulation and Prevention of Misuse) Act [ hereinafter referred as PNDT Act ] r/w Rules 1996 & Section 200 Cr.PC was filed on behalf of the Appropriate Authority PNDT Act before the Ld. Trial Court, wherein it has been stated that in discharge of his duties under the PNDT Act, it has been brought to the notice of Appropriate Authority that inspecting team consisting of Sh.Ashish Mohan SDM ( NG) and Dr. Vimal Kaushal the then Nodal Officer/District SouthWest in the presence of independent witnesses Sh. Neeeraj Bhardwaj and Ms. Chanderlekha Mohanty inspected the Mohanty Medical Clinic and inspecting team found that Mohanty Medical Clinic was violating the following provisions of PNDT Act/ Rules: a. Written consent of pregnant woman and prohibition of communicating the sex of foetus, which is required to be obtained, before conducting ultrasound process on her u/s 5(1) (2) was not recorded.
b. Mohanty Medical Clinic was also not maintaining register as specified under Rule 9(1) of Preconception and Prenatal Diagnostic Techniques ( Regulation and Prevention of Misuse) Rules, 1996 amended from time to time. c. Mohanty Medical Clinic was also not maintaining record of statutory Form"F" as specified under Rule 9(4) of Preconception and Prenatal Diagnostic Techniques ( Regulation and Prevention of Misuse) Rules, 1996 amended from time to time.
It has been further stated that during the above said inspection, various documents i.e FormF of Devki dated 28.9.2011 with ambiguous signature, prescription and ultrasound report of Mrs. Rukshana, Ante natal register w.e.f January 2011 to September 2011 and Cash receipt book bearing S. No.1001 to 1100 were seized and the ultrasound machine Toshiba, SSA320A bearing SI. No. 35820 CR No. 52/15 2/9 3 alongwith the ultrasound room of M/s. Mohanty Medical Clinic was sealed. It has been further stated that Dr. N.K.Mohanty was conducting ultrasound, although he was not permitted to do so by the Appropriate Authority and he was neither registered with Appropriate Authority nor qualified to conduct ultrasound as required under Rule 13 of PNDT Act. Thereafter inspection team issued show cause notice to Mohanty Medical Clinic and reply thereof was filed by M/s. Mohanty Medical Clinic on 12.10.2011. Thereafter on 02.11.2011, the Appropriate Authority passed a speaking order on 09.12.2011 after considering the above said reply of M/s. Mohanty Medical Clinic. It has also been stated that material as seized above proves that offences have been committed under various Section of PNDT Act and accordingly, the present complaint was filed before the Ld. Trial Court, wherein it has been prayed that cognizance of the offence committed by the accused ( respondent herein ) may be taken and he may be punished in accordance with law.
Thereafter, presummoning evidence was recorded and the accused was summoned by the Ld. Trial Court. After the appearance of the accused, precharge evidence was recorded and on conclusion of the precharge evidence, arguments on the point of charge were heard and vide impugned order dated 10.4.2015, accused Dr. N.K.Mohanty ( respondent herein ) has been discharged by the Ld. Trial Court.
Aggrieved by the aforesaid impugned order 10.4.2015 passed by the Ld. Trial Court, the petitionerState has filed the present revisionpetition, wherein it has been prayed that the aforesaid impugned order dated 10.4.2015 passed by the Ld. Trial Court may be set aside and accused ( respondent herein ) may be charged for the offences under PNDT Act .
3. Upon filing of the present revision petition, the notice was issued to the respondentDr. N.K.Mohanty and he entered the appearance and contested the CR No. 52/15 3/9 4 present revision petition.
Trial Court Record (hereinafter referred as 'TCR') was also summoned and the same has been received.
4. I have heard the arguments on the revisionpetition put forward by Ld.Addl. PP for the petitionerState and Ld. counsel for the respondent and have carefully gone through the record of the case.
5. It has been submitted by the Ld.Addl. PP for the petitionerState that impugned order dated 10.4.2015 passed by the Ld. Trial Court is not in consonance with law. It is further submitted that Ld. Trial Court has not properly appreciated the material on record and has erred in discharging the accused, although there was sufficient material evidence on record for framing the charge against the accused/ respondentDr. N.K.Mohanty. It is submitted that Ld. Trial Court ignored the fact that accused was found violating the provisions of PNDT Act and Rules with regard to the written consent of the pregnant women and prohibition of communicating sex of foetus , which is required to be obtained before conducting ultrasound process on her and the said clinic was also not maintaining the register as specified under rule 9(1) of PNDT Act. It is further submitted that Ld. Trial Court has failed to appreciate that the fact the Mohanty Medical Clinic was not maintaining record of statutory Form F as specified under rule 9(4) of PNDT Act and Form F of one Devki dated 28.9.2011 was found with ambiguous signature . It is submitted that Ld. Trial Court has failed to appreciate that respondentDr. N.K.Mohanty was conducting ultrasound although he was not permitted to do so by the appropriate authority as neither he was registered with Appropriate Authority SouthWest District nor qualified to conduct ultrasound as required under Rule 13 of PNDT CR No. 52/15 4/9 5 Act. It is also stated that the impugned order passed by the Ld. Trial court was against allegations mentioned in the complaint and statement of witnesses examined and the Ld. Trial Court erred in discharging the accused/respondent, although prima facie case for framing of charge under PNDT Act was categorically made out against respondentDr. N.K. Mohanty.
It has been further submitted that the impugned order passed by the Ld. Trial Court was against the law and facts on record . It has also been submitted that impugned order was based on surmises & conjectures and mere assumptions & presumptions and was not sustainable in law and it has been prayed that the impugned order dated 10.4.2015 passed by the Ld. Trial Court may be set aside and accused ( respondent herein ) may be charged for the offences under PNDT Act.
6. On the other hand, it has been submitted by the Ld. counsel for the respondent that there was no illegality or irregularity in the impugned order dated 10.4.2015 passed by the Ld. Trial Court. It is further submitted that Ld Trial Court has correctly passed the impugned order in the fact and circumstances of the present case as there was no material on record to frame any charge against the respondent . It is submitted that the Ld. Trial Court has properly considered and appreciated the precharge evidence on record and has rightly discharged the accused . It is further submitted that petitioner/complainantState has miserably failed to bring on record any precharge evidence to show violation of the provisions of PNDT Act by the respondent and as such the Ld. Trial Court has correctly discharged the accused/ respondent. It is submitted that the scope of the revision is very limited and a revisional court can exercise revisional jurisdiction only when an illegality , arbitrariness or perversity is shown on the face of the record and in the instant case, petitioner has miserably failed to point out any illegality, arbitrariness or perversity CR No. 52/15 5/9 6 in the impugned order and therefore the said impugned order was not liable to be set aside. Ld. counsel for the respondent also submitted that there was no illegality or infirmity in the impugned order dated 1014.2015 passed by the Ld. Trial Court and he prayed that present revision petition filed on behalf of the petitionerState may be dismissed.
In support of his contentions , Ld. Counsel for the respondent has relied upon the case law cited as 2008 Cr.LJ 1627, 1999 Cr.LJ 1061, 2011(2) JCC 1345, 2009 Cr.LJ 3379, 2008 Cr.LJ 1505, 1966 Cr.LJ 1418, 1999 (3) SCC 422, AIR 1984 SC (5), AIR 1962 SC 1206, AIR 1966 SC 1457, AIR 2011 SC 2344,AIR 1979 SC 366 & AIR 2010 SC 663.
7. I have carefully considered the submissions made by Ld. Addl. PP for the petitionerState and Ld. counsel for the respondent and have carefully gone through the record of the case. I have also carefully perused the TCR and the case law relied upon by the Ld. Counsel for the respondent.
8. The present revision petition has been filed on behalf of the petitioner State against the impugned order dated10.4.2015 passed by the Ld. Trial Court in the case titled as "D.P.Dwivedi ( Appropriate Authority PNDT Act ) Vs. Dr. N. K. Mohanty " bearing CC No.70A/1/12 u/s 28 PNDT Act P.S: Palam Village, whereby the respondent herein have been discharged.
9. It has been submitted on behalf of the petitionerState that impugned order dated 10.4.2015 passed by the Ld. Trial Court is not in consonance with law. It is further submitted that Ld. Trial Court has not properly appreciated the material on record and has erred in discharging the accused, although there was sufficient CR No. 52/15 6/9 7 material evidence on record for framing the charge against the accused/respondent Dr. N.K.Mohanty. It is submitted that Ld. Trial Court ignored the fact that accused was found violating the provisions of PNDT Act and Rules with regard to the written consent of the pregnant women and prohibition of communicating sex of foetus , which is required to be obtained before conducting ultrasound process on her and the said clinic was also not maintaining the register as specified under rule 9(1) of PNDT Act. It is further submitted that Ld. Trial Court has failed to appreciate that the fact the Mohanty Medical Clinic was not maintaining record of statutory Form F as specified under rule 9(4) of PNDT Act and Form F of one Devki dated 28.9.2011 was found with ambiguous signature . It is submitted that Ld. Trial Court has failed to appreciate that respondentDr. N.K.Mohanty was conducting ultrasound although he was not permitted to do so by the appropriate authority as neither he was registered with Appropriate Authority South West District nor qualified to conduct ultrasound as required under Rule 13 of PNDT Act. It is also stated that the impugned order passed by the Ld. Trial court was against allegations mentioned in the complaint and statement of witnesses examined and the Ld. Trial Court erred in discharging the accused/respondent, although primafacie case for framing of charge under PNDT Act was categorically made out against respondentDr. N.K. Mohanty, however the aforesaid submissions made on behalf of the petitionerState are devoid of any merits and are contrary to the record as the perusal of the record reveals that ld. Trial Court has properly dealt with the various contentions raised on behalf of the petitioner and have come to the correct and reasonable conclusions on the basis of the material available on record. In the instant case, it has been rightly observed by the Ld. Trial Court that the complaint and evidence does not disclose that patient Ruksana has undergone ultrasound process for the detection of the sex of the foetus or the accused after conducting the test communicated to her by words or by gestures, CR No. 52/15 7/9 8 the sex of the foetus. Further the prescription of patient Ruksana seized by the inspecting team at the spot did not have any mention of the fact that the patient came to the Mohanty Medical Clinic for sonography and the ultrasound scanned report dated 07.10.2011 also does not mention the gender of the foetus . In addition to this, it has been mentioned in the precharge evidence, the inspecting team consisting of Sh. Ashish Mohan, SDM, Sh. Vimal Kumar Nodal inspected the clinic on 07.10.2011 in the presence of two independent witnesses namely Sh. Neeraj Bhardwaj and Ms. Chander Lekha Mohanty , however none of these persons have been examined on behalf of the complainant to prove the veracity of the contents of the complaint and this is also fatal to the case of the petitioner herein. Further, it has also been correctly observed by the Ld. Trial Court that no reference of the advisory committee as per section 17 (6) of the Act was made in the complaint, which implies that mandatory requirement of section20(2) of PNDT Act was not complied with and further from the material on record, it appears that even the show cause notice was not issued by a competent person and the proper procedure for show cause notice has not been followed on behalf of the complainant /petitioner. In these circumstances and having regard to the fact and circumstances of the case , it has been rightly held by the Ld.Trial Court that the ingredients of the offences were not present in the complaint and no case was made out against the accused and as such, the accused ( respondent herein ) has been correctly discharged by the Ld. Trial Court.
10. It has been further submitted that the impugned order passed by the Ld. Trial Court was against the law and facts on record . It has also been submitted that impugned order was based on surmises & conjectures and mere assumptions & presumptions and was not sustainable in law, however the said contentions put CR No. 52/15 8/9 9 forward on behalf of the petitioner do not hold water and are contrary to the record as perusal of the impugned order reveals that it has been passed on the basis of the proper appreciation of the material on record and is based upon the sound, cogent and just reasoning.
11. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that there is no illegality or infirmity in the impugned order dated 10.4.2015 passed by the Ld. Trial Court.
Accordingly, the present revision petition filed on behalf of the petitioner against the impugned order dated 10.4.2015 passed by the Ld. Trial Court in the case titled as "D.P.Dwivedi ( Appropriate Authority PNDT Act ) Vs. Dr. N. K. Mohanty " bearing CC No. 70A/1/12 u/s 28 PNDT Act P.S: Palam Village, is hereby dismissed.
TCR alongwith copy of this order be sent back to the concerned Ld. Trial Court.
Revision file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 20.11.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts /Delhi
CR No. 52/15 9/9
10
C.R No.52/15
20.11.2015
Present: Sh. Pramod Kumar, Addl. PP for petitionerState with Dr. Sameer Pandit, Nodal Officer PNDT.
RespondentDr. N.K.Mohanty in person.
Vide separate order, announced in the open court, the present revision petition filed on behalf of the petitionerState against the impugned order dated 10.4.2015 passed by the Ld. Trial Court in the case titled as "D. P. Dwivedi ( Appropriate Authority PNDT Act ) Vs. Dr. N. K. Mohanty" bearing CC No. 70A/1/12 u/s 28 PNDT Act P.S: Palam Village has been dismissed.
TCR alongwith copy of the order be sent back to the Ld. Trial Court.
Revision file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 20.11.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts /Delhi
CR No. 52/15 10/9