Allahabad High Court
Dr. Rahul Malik vs State Of U.P. And 3 Ors. on 21 February, 2017
Bench: Ramesh Sinha, Krishna Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 36 Case :- CRIMINAL MISC. WRIT PETITION No. - 2085 of 2017 Petitioner :- Dr. Rahul Malik Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Ramesh Kumar Shukla Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Krishna Pratap Singh,J.
1. Counter affidavit filed today, is taken on record.
2. Heard Sri Ramesh Kumar Shukla, learned counsel for the petitioner and Sri Ashish Pandey, learned A.G.A. for the State.
3. This writ petition has been filed by the petitioner with the following prayers:
" (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned first information report dated 11.12.2016 in Case Crime No.1703 of 2016 under Section 23/25 of Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, Police Station Sihani Gate District Ghaziabad. (Annexure No.1 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus restraining the respondents from harassing arresting and interfering in any manner in the peaceful personal liberty of the petitioner.
(iii) Issue a writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(iv) award cost of the petition to the petitioner."
4. Necessary relevant facts are stated here-under to appreciate the case of the petitioner and also to find out whether the petitioner is entitled to the relief prayed for in this petition:
4.A The respondent No.4 who is informant working as Deputy Chief Medial Officer Nodal Officer, PNDT Team, Deptt. Sonipat Haryana along-with Dr. Anvita Kaushik, S.M.O. Sonipat and others police personnel were following from Sonipat, a Maruti Swift Dezire Car No.H.R. 10 U0950 after getting a prior information that a decoy patient Neetu is being sent to a tout named Dr. Anita in that car for sex determination and deal for sex determination was earlier fixed for Rs. 26,000/-, decoy money was given by PNDT Dept. Sonipat to Neetu and serial number of notes were noted on separate slips, which were signed by decoy, Civil Surgeon Sonipat and informant. Decoy patient was picked up by Dr. Anita near Singhu Border Delhi in Car HR10UO950. It is further submitted in the F.I.R. that informant with his team started following them. After crossing Delhi this car entered in Ghaziabad Region. Information about illegal sex determination in this region was already given in district appropriate authority Ghaziabad in writing. After entering Ghaziabad, informant informed D.M. cum District appropriate authority Ghaziabad that they have reached Ghaziabad following Maruti Dezire HR10U 0950. On a road near Rajnagar Extension, Car stopped. Then, informant was informed that ACM Sri Chandar Bhanu Singh is coming along with Dr. Narendra Kumar. After few minutes, informant contacted Police Station Sihani Gate for Police cover after confirming from local police and street people that this area of Rajnagar extension is within the territory of Police Station Sihani Gate and came back to original spot where car HR10U 0950 was stopped, that after few minutes informant was informed by his team that a Maruti Alto car came and two ladies including decoy customer was taken to a separate place. Registration no. of Alto car was DL2CH9005. Informant team Male Dr. Anvita followed Maruti Alto car and it was noticed that ladies were taken in Grand Savana Apartments. After about one hour these ladies were brought back to original place where they were picked up from Maruti Desire after that Maruti Desire car began to move towards Delhi. Informant along with his team followed them and in the meantime ACM Sri Chandra Bhanu Singh met along-with Dr. Narendra. After going some distance, informant with his team intercepted Maruti Desire after stopping car and decoy customer. Informant was informed by decoy that her ultra sound has been done and sex of foetus was disclosed as female by Dr. Anita and a man who took them in Alto car there was another lady, who was identified as Reena w/o Vikas Chander and was also in the Car along with Dr. Anita and a man called Manjeet. Manjeet was driving the Maruti Swift Desire car. Ultrasound of Reena was also done but sex of her baby was not clear and she was advised to come again after 10-15 days due to early pregnancy. Thereafter team took both pregnant women to Grand Savana Apartment and the identified the house in which ultra sound of both was done, the team entered that house flat No. M002 KDP Grand Savana and a person identified by pregnant woman as the same person, who had taken them in Alto car for ultrasound. He was identified as Gajendra Singh. On questioning Gajendra Singh, told that Dr. Anita has given Rs.4,000/- (two notes of Rs. 2000/-each) to him for ultrasound of pregnant woman and he called another person Dr. Rahul Malik for ultrasonography on mobile No.9899116000 and ultrasound was done by Dr. Rahul and he has brought his own ultrasound machine for that purpose. Rs. 4000/- (Rs. 2000x2) recovered from the house of Gajendra Singh and seizure memo was prepared and he was taken to the house of Rahul Malik in Hindon Gulmohar Green Apartment. After reaching house of Dr. Rahul Malik, team came to know that he has gone away and his father and mother were present in the house. One the inspection of house, team found a portable ultrasound machine Sr. No.WSPBGCA026 Ipad and a Samsung mobile phone. These items were seized and Seizer memo was prepared on spot. Then team searched the purse of Dr. Anita and Rs. 22,000/- (7 note of Rs. 2000, 80 notes of Rs.100 each) were recovered from her purse and seizure memo was prepared. Time of occurrence was around 11.30 p.m. on 10/12/2016. House of Gajendra Singh was not registered as Genetic Centre under PC PNDT Act. Similarly house of Dr. Rahul Malik was also not a registered as ultra sound (genetic) centre. Moreover both are involved in sex determination along with tout Dr. Anita which is punishable under PC PNDT Act.
5. The only contention argued by the learned counsel for the petitioner before us is that there is a bar on investigation in view of Section 28 of the Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 which prohibits cognizance by any court of an offence except on a complaint made by the concerned appropriate authority. It was submitted that no complaint has been filed by the concerned appropriate authority in competent Court, therefore, the aforesaid F.I.R. is liable to be quashed.
6. Learned A.G.A. for the State submitted that for the offence under Section 28 of Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, there is a provision for filing complaint by the competent authority in the competent court but the proceeding under section 28 of the Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, is not of civil nature rather the same is of criminal nature so the provision of section 28 of Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, does not apply at the stage of investigation and only relates to the stage when cognizance is sought to be taken by the competent court. Learned A.G.A. for the State in this regard has cited the judgment of Hon'ble Apex Court in M. Narayan Das vs. State of Karnataka AIR 2004 SC 768 where it is held that the said bar only applies at the time when the court takes cognizance of an offence, and not at the stage of investigation. It was further submitted that the present petition is liable to be dismissed.
7. In case of Dr. Varsha Gautam vs. State of U.P. and others reported in ALJ 2006 (5) Page No.221 division bench of this Court in para No.5 of the judgment has held as under:
"5. In our view the said prohibition does not apply at the stage of investigation and only relates to the stage when cognizance is sought to be taken by the concerned court. In this regard " In our view the said prohibition does not apply at the stage of investigation and only relates to the stage when cognizance is sought to be taken by the concerned court. In this regard when dealing with the question of a bar under Section 195 (1) (b) (ii), it has been held in M. Narayan Das v. State of Karnataka AIR 2004 SC 768, that the said bar only applies at the time when the court takes cognizance of an offence, and not at the stage of investigation. The material Paragraph 8 reads as follows:
We are unable to accept the submissions made on behalf of the Respondents. Firstly it is to be seen that the High Court does not quash the complaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had not been followed. Thus such a ground could not be used to sustain the impugned judgment. Even otherwise there is no substance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh . In this case it has been that as follows :
2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468, I.P.C. by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii), Cr. P. C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195, Cr. P.C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1), Cr. P. C; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceedings in Court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195, Cr. P. C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b), Cr. P. C., but nothing therein deters the Court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340, Cr. P. C. The judgment of this Court in Gopala-krishna Menon v. Raja Ready on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil Court and hence it was held that the Court could not take cognizance on such a complaint in view of Section 195, Cr. P.C. Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and. the Court would not be competent to take cognizance. However that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340, Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected. "
8. In the case of State of Haryana vs. Bhajan Lal 1992 Supp (1) SCC 335, Hon'ble Apex Court has laid down the following categories of cases in which High Court can quash the F.I.R.:
"1. Where the allegations made in the First Information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. Do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the code.
3. Whether the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Whether, the allegations in the F.I.R. Do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police office without an order of a Magistrate as contemplated Under Section 155 (2) of the code.
5. Where the allegations made in the F.I.R. Or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
9. The case of the petitioner does not fall under the category of the quashing of F.I.R. mentioned in the case of Bhajan Lal (Supra).
10. According to the Provision of Section 27 of the P.N.D.T. Act every offence under this Act shall be cognizable, non-bailable and non-compoundable.
11. From the perusal of the F.I.R. it is clear that prima facie cognizable offence is made out, therefore there is no ground to quash the F.I.R. and stay the arrest of petitioner. Petition has no force and it is accordingly, dismissed.
Order Date :- 21.2.2017 Pr/-
(Krishna Pratap Singh, J.) (Ramesh Sinha, J.)