Delhi District Court
Dr. Radha Nirmal vs D.P Dwivedi on 23 February, 2021
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
CR No. 58/2019
Dr. Radha Nirmal,
Rural Health Centre,
Vasant Kunj Road,
Mahipalpur, Delhi 110037
....Revisionist.
Versus
D.P Dwivedi,
Appropriate Authority,
Under PCPNDT Act/
Dy. Commissioner (South West District)
Old Terminal Tax Building,
Kapashera, New Delhi110037 .....Respondent.
Date of Institution : 22.01.2019
Date of Arguments : 22.02.2021.
Date of Pronouncement : 23.02.2021.
ORDER
The present is a revision u/s 397 Cr.P.C filed against order dated 22.12.2018 passed by ld. MM (2), Patiala House Court, New Delhi.
CR No. 58/19
(Parveen Singh)
Page No. 1 of 9 ASJ03/NDD/PHC: 23.02.2021
2. The brief facts giving rise to the present revision petition are, that the revisionist is the owner of a Clinic Rural Health Centre at Mahipalpur, New Delhi. Revisionist's clinic was granted a certificate of registration under PNDT Act and the revisionist's clinic was authorized to carry out ultrasound and other tests. It is further submitted that on 14.10.2011, officials of NIMC visited the clinic of revisionist. After the inspection, members of NIMC seized the documents and sealed the clinic of the revisionist. Subsequently respondent, without serving any show cause notice, passed order no. F.PA/DC(SW)/2011/Insp/9847 dated 17.11.2011. It is further submitted that vide order dated 17.11.2011, the District Appropriate Authority had cancelled the registration certificate of revisionist and imposed penalty of Rs.20,000/. Revisionist filed an appeal before the State Appropriate Authority on various grounds including that the act of District Appropriate Authority without serving show cause notice had brought harm to revisionist's professional reputation. On 15.03.2012, vide an order, the submissions made by the revisionist were dismissed by the State Appropriate Authority. Thereafter, the revisionist filed a Writ Petition (C) before Hon'ble High Court of Delhi against orders dated 17.11.2011 and 15.03.2012. It is further submitted that vide order dated 21.01.2013, Hon'ble High Court of Delhi set aside the order dated 17.11.2011 passed by District Appropriate Authority and order dated 15.03.2012 passed by the State Appropriate Authority. Pursuant to order dated 21.01.2013 passed by Hon'ble High Court of Delhi, the District CR No. 58/19 (Parveen Singh) Page No. 2 of 9 ASJ03/NDD/PHC: 23.02.2021 Appropriate Authority issued show cause notice to the revisionist. On 03.12.2014, revisionist appeared before the Appropriate Authority and made her submissions. Thereafter, vide order dated 12.12.2014, the District Appropriate Authority dropped the proceedings against the revisionist. Thereafter, on the complaint of the respondent, revisionist received summons from the court of Ld. MM02. Revisionist appeared before the court of Ld MM and made submissions about the order dated 21.01.2013 passed by Hon'ble High Court of Delhi and order dated 12.12.2014 passed by District Appropriate Authority. However, vide order dated 22.12.2018, Ld. MM had issued directions for continuing the proceedings. Hence, the present revision petition against order dated 22.12.2018.
3. The grounds taken in revision petition are, that the impugned order dated 22.12.2018 is arbitrary illegal and has been passed mechanically without having regard to facts and circumstances of the case. It is further submitted that Ld. MM failed to appreciate that the ultimate object of the procedural laws is to ensure that substantial justice is done to the parties. Therefore, it should be the endeavor of the courts to see that parties are not prosecuted again and again for the alleged offence from which the person has been absolved by the same authority. Ld. Trial court failed to appreciate that there was no reason or basis for continuing the proceedings once order of complainant had been set aside by Hon'ble High Court of Delhi. Ld. Trial court acted against the revisionist in haste and in violation of Article 20 of the Constitution. Ld. Trial court failed to appreciate that Constitution bars CR No. 58/19 (Parveen Singh) Page No. 3 of 9 ASJ03/NDD/PHC: 23.02.2021 double prosecution and punishment for the same offence. Ld. Trial court failed to appreciate that the same District Appropriate Authority, vide its order dated 12.12.2014, dropped the proceedings on the ground of lack of any evidence. The order of Ld. MM is based on conjectures and surmises.
4. I have heard ld. counsels for the parties and perused the record very carefully.
5. It has been contended by ld. Counsel for revisionist that the trial court erred in dismissing the request of the revisionist for dropping the proceedings against the revisionist. He has further contended that the entire basis of the present complaint was the order dated 17.11.2011 of the District Appropriate Authority which has been upheld by appellate authority. However, the said order and the subsequent order of State Appropriate Authority had been set aside by the Hon'ble High Court of Delhi on 21.01.2013 in WP (C) No. 1811 of 2012. He has further contended that once that order and the order of the Appellate authority had been set aside by Hon'ble High Court of Delhi, there was no basis for moving ahead with the present complaint. He has further contended that the trial court erred in observing that the complaint had been filed u/s 28 of PNDT Act whereas the order was passed u/s 20 of PNDT Act. He has further contended that the complaint had been filed on the basis of the said order and therefore, it would not matter whether the said order had been passed u/s 20 of PNDCT Act and the complaint had been filed u/s 28 of PNDT Act. He has further contended that subsequent thereto, the Appropriate Authority passed an CR No. 58/19 (Parveen Singh) Page No. 4 of 9 ASJ03/NDD/PHC: 23.02.2021 order dated 12.12.2014 wherein the District Appropriate Authority had decided to drop the proceedings and had found the original inspection report, which is the basis of present complaint, to be too deficient to be of any evidentiary value. Therefore, there is no point in continuing the present complaint.
6. Per contra, ld. Counsel for respondent has contended that the trial court could not have dropped the proceedings because it would amount to review of summoning order which as per the judgment of Adalat Prasad v. Roop Lal Jindal & Ors. (2004) 7 SCC 338, trial court had no powers to do. Therefore, the trial court rightly rejected the request of the revisionist. He has further contended that as per section 28 of PNDT Act, court could only have taken cognizance in a complaint filed by the Appropriate Authority. The present complaint has been filed by Appropriate Authority therefore, it is not related to the order which had been set aside by Hon'ble High Court of Delhi.
7. Countering it, ld. Counsel for revisionist has contended that perusal of the complaint would reveal that the entire complaint is filed on the basis of inspection and the subsequent order dated 17.11.2011 passed by the Appropriate Authority which has been upheld by the State Appropriate Authority on 15.03.2012. He has further contended that the complaint does not detail the offence which has been committed and what are the shortcomings except what was found in the surprise inspection. He has CR No. 58/19 (Parveen Singh) Page No. 5 of 9 ASJ03/NDD/PHC: 23.02.2021 further contended that para 3 of the order of the Appropriate Authority dated 17.11.2011 states that the case has to be further examined by CDMO (SW) in consultation with State PNDT Unit and Law Department, Government of NCT of Delhi/ Public Prosecutor to explore the possibility of launching prosecution against Dr. Radha Nirmal/ revisionist. However, there is nothing on record or in the complaint that any such opinion was taken and the part of the order where it was stated to initiate criminal action or seek opinion for starting criminal action against revisionist has been set aside. Therefore, the entire basis for filing the present complaint has gone. He has further contended that before the ld. Trial court, the subsequent order of the District Appropriate Authority dated 12.12.2014 had also been filed wherein it had been ordered subsequently that the Appropriate Authority itself had found that original inspection report was too deficient to be of any evidentiary value and under reporting of form F could not be proved as no reasonable evidence was ever sighted for proving that form F under reported. He has further contended that the ld. Trial court not only ignored this submission but failed to record it and deal with it in its order. He has shown to the court in the paper book of the ld. Trial court the said order dated 12.12.2014 of the District Appropriate Authority which has been filed in the revision petition as Annexure B.
8. On being asked to rebut these submissions, ld. Counsel for respondent has admitted that order dated 12.12.2014 had been passed by District Appropriate Authority and the proceedings were ordered to be CR No. 58/19 (Parveen Singh) Page No. 6 of 9 ASJ03/NDD/PHC: 23.02.2021 dropped and the copy filed on record is the true copy of the order dated 12.12.2014. Ld. Counsel for respondent has admitted that apart from order of Appropriate Authority dated 17.11.2011, which admittedly had been set aside by Hon'ble High Court of Delhi, there is nothing on record to reflect that the criminal proceedings u/s 28 of PNDT Act were initiated on the basis of some other ground.
9. I have considered the rival submissions.
10. A perusal of the record reveals that the present complaint is based on the inspection dated 14.10.2011 and thereafter, after stating in the complaint that inspection dated 14.10.2011 was held, the complainant/ Appropriate Authority went on to state as under:
9. That M/s Rural Health Centre relied to the Appropriate Authority on 18.10.2011 & 04.11.2011 (Annexure 1313) and the Appropriate Authority passed a speaking order on 17.11.2011 after considering the reply of M/s Rural Health Centre (Annexure 2022).
10. That the appeal of M/s Rural Health Centre to the State Appropriate Authority under Rule 19 of the Pre Natal Diagnostic Techniques (Prohibition of sex selection) Rules 1996 dismissed on dated 15.03.2012 (Annexure 2528).
11. That the material as seized above proves that an offence has been committed under Section 9(1), (3), (4) read with Rule 9 and 13 of the PNDT Act, punishable under Section 23 read with Section 25.
11. Apart from these paras, there is no other material which had been relied upon. The paras reproduced above clearly reflect that the complaint had been based on the order of Appropriate Authority dated CR No. 58/19 (Parveen Singh) Page No. 7 of 9 ASJ03/NDD/PHC: 23.02.2021 17.11.2011 and the subsequent order of State Appropriate Authority dated 15.03.2012 whereby the aforesaid order of the District Appropriate Authority was upheld. Therefore, the entire basis of this complaint was these two orders. This fact is further reflected from the index filed with the complaint which reflects that nothing else apart from these two orders and the documents seized during the inspection, has been relied upon. However, both these orders i.e. the order of the District Appropriate Authority and the subsequent order of State Appropriate Authority had been set aside by Hon'ble High Court of Delhi vide order dated 21.01.2013, as has been admitted by both the parties. Therefore, the entire basis of filing of the complaint had become a nullity and thus, merely because the complaint was filed u/s 28 of PNDT Act, it cannot be said that setting aside or the order of District Appropriate Authority and subsequent order of State Authority by the Hon'ble High Court of Delhi would not have any consequences upon the complaint.
12. Furthermore, it is an admitted position that proceedings initiated against the revisionist had been ordered to be dropped by the subsequent order of the Appellate Authority dated 12.12.2014. The copy of the said order is filed on record and both the parties have admitted it to be the true copy.
13. A perusal of the said order reveals that the Appropriate Authority itself had found that there was no evidence against the revisionist for the offences for which the present complaint has been filed including the CR No. 58/19 (Parveen Singh) Page No. 8 of 9 ASJ03/NDD/PHC: 23.02.2021 under reporting form F which according to the Appropriate Authority had not been proved as not evidence had been shown in that regard.
14. While dropping the proceedings, the Appropriate Authority had further observed that the original inspection report was found to be too deficient to be of any evidentiary value.
15. Therefore, when the Appropriate Authority itself had not found any evidence of the commission of acts which constitute the offences for which the present complaint has been filed, there is no ground or basis for continuing with the present complaint. The revision petition is accordingly allowed. Revisionist stands discharged.
16. Revision file be consigned to record room. Copy of order be sent to the ld. Trial court with TCR.
Announced in open court (Parveen Singh)
today on 23.02.2021. ASJ03, New Delhi Distt.,
(This order contains 09 pages Patiala House Court, Delhi.
and each page bears my signatures.)
CR No. 58/19
(Parveen Singh)
Page No. 9 of 9 ASJ03/NDD/PHC: 23.02.2021