Chattisgarh High Court
Dr. G.D. Meghani vs Appropriate Authority Pndt Act on 9 August, 2024
1/7
2024:CGHC:36527
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 141 of 2018
1 - Dr. G.D. Meghani S/o Barunomal Meghani Aged About 70 Years
Director Meghani Patho Lab And Sonography Centre, Tilak Nagar
Police Station Civil Lines Bilaspur Chhattisgarh
... Petitioner
versus
1 - Appropriate Authority Pndt Act 1984 Through Additional District
Magistrate Bilaspur District Bilaspur Chhattisgarh
... Respondent
For Petitioner : Shri Amit Soni, Advocate
For Respondent : Shri Ajit Singh , GA and Ms. Monika Thakur, PL
(Hon'ble Shri Justice Arvind Kumar Verma)
Order on Board
09/08/2024
Present petition has been filed under Section 482 Cr.P.C. seeking quashment of the complaint which has not been filed by the appropriate authority or Officer authorized and the order taking cognizance passed by the trial court in the Complaint Case No. 582/2013 and has challenged the entire proceedings initiated in the said case pending before the Judicial Magistrate First Class, Bilaspur.
2. Brief facts of the case is that the petitioner is a pathologist 2/7 practicing in Bilaspur for the last many years and for the purpose of pathological diagnosis, he has installed the Sonography machine. In the year 2011, a criminal complaint was preferred against the petitioner for commission of the offence punishable under Section 3 & 4 of the Pre- conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter 'PC&PNDT Act') read with Section 23 and 25 of the Pre-Conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter 'PC& PNDT Act').
3. Vide order dated 29.07.2011, cognizance has been taken by the learned trial court and the petitioner appeared before the learned trial court and applied for bail. Thereafter the petitioner was granted bail and the entire proceedings were vitiated on the ground that the complaint was not filed by the appropriate authority according to the notification issued by the State Government.
4. Contention of the counsel for the petitioner is that the trial court has committed an error of law by registering the complaint against the petitioner and as such the same is not maintainable. He submits that the definition of 'appropriate authority' under Section 17(2) of the aforesaid Act which reads as under:
"The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre- natal sex determination leading to female foeticide."
5. It is argued by learned counsel for the petitioner that cognizance of offences could not have been taken by the learned Trial Court under PC& PNDT Act in the absence of any complaint made by Appropriate 3/7 Authority or any officer authorized on behalf of it, as per clear mandate of Section 28 of the Act, and cognizance taken on the basis of a charge- sheet filed by the prosecution was impermissible and untenable in law. Learned counsel for the petitioner submits that the cognizance which has been taken under the PC & PNDT Act, complaint has not ben filed by the competent authority under Section 28 of the PNDT Act. He submits that the complaint itself is void ab initio and without jurisdiction for which no cognizance can be taken. He placed his reliance in the case of Raj Kumar Badwani Vs. Collector, Ex-Officio Chairman PC & PNDT Act,CG & Another reported in 2016 (4) CGLJ 413, wherein in para 16, it has been held as under:
"16. The judgment of High Court of Madhya Pradesh in Dr. Manvinder Singh Gill (supra) was put to test before the Supreme Court by the State of Madhya Pradesh vide Special Leave to Appeal (Crl.) No. 2226/2014. The Supreme Court vide order dated 03.08.2015 while dismissing the said SLP of State has affirmed the judgment of MP High Court holding that unless a complaint is made by an "appropriate authority' or by an "Officer authorized" by the State Government, the same cannot be held to be a valid complaint. It has further approved the stand of the MP High Court that the officers who were authorized by the appropriate authority to help in monitoring an effective implementation of the PCPNDT Act cannot be construed as an officer authorized under the Act for the purpose of Section 28 of the PCPNDT Act."
6. Contention of the counsel for the petitioner is that in the instant 4/7 case, the complaint has been preferred by the Additional District Magistrate and according to the notification issued by the State Government, the appropriate authority for the district would be District Magistrate. In view of the notification issued by the State Government, dated 1st October 2007 which reads as under:
NOTIFICATION "In exercise of the powers conferred by clause (b) of Sub-section (3) of Section 17 with sub-section (20 of section 17 of the "Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of x selection) Act, 1994 (No. 57 of 1994)" and in supersession of Department Notification no. 977/4169/2001/H dated 30.10.2001, the State Government hereby appoints the District Magistrate for the District and the Block Medical Officer for the Block as "Appropriate Authority" within their respective jurisdiction."
In view of the above notification, the appropriate authority is only the District Magistrate. He therefore submit that the order passed by the learned trial court is illegal, perverse and against the settled principle of law and the same deserves to be set aside.
7. On the other hand, learned State counsel opposes the present petition and states that the allegations are serious in nature and that the defect, if any, was cured after the complaint as per Section 28 was filed by the Appropriate Authority. It is further submitted that offences under PC & PNDT Act are cognizable, non-bailable and non- compoundable in nature as provided under Section 27 and the power of arrest in cognizable cases vests with the police only since no such power has been vested in the Appropriate Authority by virtue of PC & PNDT Act. It is vehemently argued that the words 'as far as possible' in 5/7 Rule 18A(3) of PC&PNDT Rules would show that the role of police in investigating cases under the Act and assisting the Appropriate Authority is not ruled out per se, and it is only the 'cognizance' which is to be taken by the Courts as per Section 28 of the Act.
8. The ground raised by the petitioner is that as per the notification of the State government, the appropriate authority for the district would be District Magistrate whereas the complaint has been preferred by the Additional district Magistrate and as per the provisions contained in Section 17(3)(i) to (iii), the complaint may be made only by the appropriate authority consisting of three persons and thus, reading of the relevant provision of law would also make it clear that the complaint shall be directly filed by way of private complaint before the Judicial Magistrate either by appropriate authority or any other persons after giving statutory notice to appropriate authority of his intention to make complaint to the court but in the present case, the complaint has been filed by the Deputy Collector in that capacity and not as the chairperson of the appropriate authority authorized by the Govt. under Section 17(2).
9. The arguments and the contentions raised on behalf of both the sides have been heard at length and the material on record has been perused.
10. On conjoint reading of Section 17 and 28, the provisions of the PCPNDT Act specifies the Appropriate authority and Advisory Committee. Section 17(2) of the Act is reproduced thus:
"17. Appropriate Authority and Advisory Committee
- xxxx xxxx xxxx (2) The State Government shall appoint, by notification in the Official Gazette, one or more 6/7 Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide."
It has been specifically enumerated in the PCPNDT Act about the procedure for taking cognizance of offence under Section 28 of the said Act which clearly deals with the cognizance of the offence. It is reproduced as under:
"28. Cognizane 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."
11. On bare reading of the said section, it clearly depicts that the Court shall take cognizance of an offence in the event if the complaint is made by an appropriate authority or Officer authorized in this behalf by the State Government/Central Government. For the State of Chhattisgarh, the appropriate authority is the District Magistrate and therefore the complaint under Section 28 of the Act ought to have been filed by the District Magistrate himself or else by an Officer who has been duly authorized by way of notification in this behalf to be the appropriate authority.
12. The perusal of the aforesaid makes it clear that the State 7/7 Government for the parts of the State notified the District Magistrates as "appropriate authority" at district level to exercise their jurisdiction within the districts. In the present case, the complainant being Additional Collector, not being duly notified by the State Government to act as an appropriate authority or as an officer authorized by the State Government or Central Government. If required, they may nominate any executive Magistrate for the purpose of monitoring in execution of the provisions of the Act. In this regard, it is suffice to observe the provisions of Section 17(2)(3)(a) and (b) and also Section 28(1) of the PC and PNDT Act. It is not for the Court to say that it is in consonance to the provision of the Act or not. Therefore, in the facts of the present case, it is held that complaint has not been made by "appropriate authority" or any officer authorized by the State Government under the provision of PC and PNDT Act, however, the trial Court cannot take cognizance as specified under Section 28(1) (a) of the PC and PNDT Act, therefore, the order taking cognizance passed by trial Court is not in accordance with law.
13. In view of the foregoing discussion, this petition under Section 482 of the Cr.P.C. is hereby allowed. The proceedings in Criminal Case No. 582/2013 which are pending before the Judicial Magistrate First Class, Bilaspur are hereby, quashed.
Sd/-
(Arvind Kumar Verma) Judge Digitally signed by SUGUNA SUGUNA DUBEY DUBEY Date:
2024.09.20 02:11:19 -0400