Karnataka High Court
Shri.Dhondiba Anna Jadhav vs Taluka Health Officer, Gokak on 21 February, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.101392/2019
BETWEEN:
1. DHONDIBA ANNA JADHAV
MEMORIAL HOSPITAL,
BY DR.NITIN JADHAV
AGE: 50 YEARS,
OCC: MEDICAL PRACTITIONER,
FALLS ROAD, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
2. DR.MRS PADMA NITIN JADHAV
AGE: 48 YEARS,
OCC: MEDICAL PRACTITIONER,
FALLS ROAD, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
...PETITIONERS.
(BY SHRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE.)
AND:
THE STATE OF KARNATAKA
BY SPP,
REP. BY TALUKA HEALTH OFFICER, GOKAK
REP. BY RAMAPPA SIDDAPPA
BENCHINAMARADI,
AGE: 59 YEARS,
R/O: GOKAK, DIST: BELAGAVI.
...RESPONDENT.
(BY SHRI RAMESH CHIGARI, HCGP.)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
PROCEEDINGS PENDING ON THE FILE OF THE PRL. CIVIL JUDGE &
JMFC COURT, GOKAK, IN C.C.NO.910/2016 REGISTERED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 23 OF PRENATAL
DIAGNOSTICS TECHNIQUES (REGULATION & PREVENTION OF
MISUSE) ACT, 1994 READ WITH RULES 9(3) & (4) OF RULES 1996,
SO FAR IT RELATES TO THE PETITIONERS ARE CONCERNED, ETC.,.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:
ORDER
The petitioners call in question proceedings instituted in C.C.No.910/2016 under Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 r/w Rules of 1996 ('Act' for short) pending before the Principal Civil Judge and JMFC, Gokak invoking Section 200 of the Cr.P.C.
2. Heard learned counsel appearing for the petitioners and learned HCGP appearing for the respondent.
3. Sans details, facts in brief germane for a resolution of the dispute in the lis are as follows:
Petitioners are medical practitioners. They own and run Sri Dhondida Anna Jadhav Memorial Hospital at Gokak for many 3 years now. The respondent - Taluka Health Officer visits the hospital and conducts an inspection, the result of which is the registration of the impugned complaint invoking Section 28 of the Act on the allegation that the hospital has not maintained records as required under the Act and have also installed equipments for the purpose of detecting sex of fetus.
4. On this inspection it is further contended in the complaint that equipments and documents were seized from the hospital. After the registration of the said complaint, the jurisdictional Magistrate records the sworn statement and takes cognizance of the offences punishable under Section 28 of the Act and Rule 9 of the Rules. It is this action of the learned Magistrate that drives the petitioners to this Court.
5. The learned counsel appearing for the petitioner would vehemently argue and contend that the respondent is not the authority empowered under the Act either to inspect or register a complaint against the petitioners. Therefore, any act of the respondent in registration of the complaint is one without jurisdiction and a nullity in law.
4
6. On the other hand, the learned High Court Government Pleader would seek to defend the action by contending that there is a notification issued by the Government on 15.10.2011 empowering the respondent to inspect and register the complaint. He would submit that the petitioners have to come out clean in the trial as the registration of the complaint is in accordance with law.
7. I have given my anxious consideration to the submissions made by the respective learned counsel for the parties and perused the material on record. In furtherance whereof, the only issue that falls for my consider is, "whether the proceedings instituted by the respondent suffers from want of jurisdiction?"
8. The afore-quoted facts are not in dispute. The Act was brought into force to check female foeticide. Section 17 of the Act reads as follows:
"17. Appropriate Authority and Advisory Committee.- (1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act.5
(2) 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.
(3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be,--
(a) when appointed for the whole of the State or the Union territory, consisting of the following three members-
i) an officer of or above the rank of the Joint Director of Health and Family Welfare-Chairperson;
ii) an eminent woman representing women's organization; and
iii) an officer of Law Department of the State or the Union territory concerned:
Provided that it shall be the duty of the State or the Union territory concerned to constitute multi-member State or Union territory level Appropriate Authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002:
Provided further that any vacancy occurring therein shall be filled within three months of that occurrence.6
(b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be, may deem fit.
4. The Appropriate Authority shall have the following functions, namely:--
(a) to grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic;
(b) to enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory and Genetic Clinic;
(c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action;
(d) to seek and consider the advice of the Advisory Committee, constituted under sub-section (5), on application for registration and on complaints for suspension or cancellation of registration;
(e) to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigations in such matter;
(f) to create public awareness against the practice of sex selection or pre-natal determination of sex;
(g) to supervise the implementation of the provisions of the Act and rules;
7
(h) to recommend to the Board and State Boards modifications required in the rules in accordance with changes in technology or social conditions;
(i) to take action on the recommendations of the Advisory
Committee made after investigation of complaint for suspension or cancellation of registration.
5. The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for each Appropriate Authority to aid and advise the Appropriate Authority in the discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its Chairman.
6. The Advisory Committee shall consist of--
(a) three medical experts from amongst gynaecologists, obstericians, paediatricians and medical geneticists;
(b) one legal expert;
(c) one officer to represent the department dealing with information and publicity of the State Government or the Union territory, as the case may be;
(d) three eminent social workers of whom not less than one shall be from amongst representatives of women's organisations.
7. No person who has been associated with the use or promotion of pre-natal 8 diagnostic techniques for determination of sex or sex selection shall be appointed as a member of the Advisory Committee.
8. The Advisory Committee may meet as and when it thinks fit or on the request of the Appropriate Authority for consideration of any application for registration or any complaint for suspension or cancellation of registration and to give advice thereon:
Provided that the period intervening between any two meetings shall not exceed the prescribed period.
9. The terms and conditions subject to which a person may be appointed to the Advisory Committee and the procedure to be followed by such Committee in the discharge of its functions shall be such as may be prescribed.
17A. Powers of Appropriate Authorities:- The Appropriate Authority shall have the powers in respect of the following matters, namely:-
a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder;
b) production of any document or material object relating to clause (a);
c) issuing search warrant for any place suspected to be indulging in sex selection techniques or pre-natal sex determination;
and 9
d) any other matter which may be prescribed."
9. Chapter V of the Act deals with 'Appropriate Authority and Advisory Committee'. Sub-Section (1) of Section 17 empowers the Central Government to appoint an Appropriate Authority by notification in the official gazette. The Appropriate Authority can be one or more. Sub-Section (2) of Section 17 empowers the State Government to appoint an Appropriate Authority, again by a notification in the official gazette. Once the Appropriate Authorities are appointed, they may become empowered to act under the Act. Therefore, notification being issued either by the Central Government or the State Government is imperative for such determination.
10. The State Government has issued a notification under the Act appointing the Assistant Commissioner as the Appropriate Authority invoking his power under sub-Section (2) of Section 17 of the Act. Under sub-clause (b) of sub-Section (3) of Section 17, the Assistant Commissioner of the districts of Bijapur, Bagalkot, Belgaum, Chitradurga, Mandya, Bidar and 10 Gulbarga, is the Appropriate authority. The notification dated 15.10.2011 reads as follows:
PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀASÉå : DPÀÄPÀ 309 J¥sï¦Dgï 2011 PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ, «PÁ¸À ¸Ëzs,À ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ: 15-10-2011.
C¢ü¸ÀÆZÀ£É PÉÃAzÀæ ¸ÀPÁðgÀ eÁjUÉ vÀA¢gÀĪÀ, UÀ¨ð Às ¥ÀƪÀð ªÀÄvÀÄÛ ¥À¸ æ ª À À¥ÀƪÀð ¥ÀvÉÛ ºÀZÀÄѪÀ vÀAvÀæU¼ À ÀÄ (°AUÀ DAiÉÄÌ ¤µÉÃzsÀ) PÁAiÉÄÝ 1994 (PC & PNDT Act 1994) (À PÉÃAzÀæ C¢¤AiÀĪÀÄ 57, 1994) ªÀÄvÀÄÛ ¤AiÀĪÀÄUÀ¼ÀÄ 1996, EªÀÅUÀ¼£À ÀÄß gÁdåzÀ°è ¥ÀjuÁªÀÄPÁjAiÀiÁV C£ÀĵÁ×£U À Éƽ¸À®Ä PÁAiÉÄÝAiÀÄ ¸ÉPÀë£ï 17 (2) gÀ°è ¤ÃqÀ®ànÖgÀĪÀ C¢üPÁgÀª£ À ÀÄß ZÀ¯Á¬Ä¹ gÁdåzÀ DAiÀiÁ f¯ÉèAiÀÄ "f¯Áè¢Pü Áj" (Deputy Commissioner) UÀ¼£ À ÀÄß f¯Áè ªÀÄlÖzÀ f¯Áè "¸ÀPÀëªÀÄ ¥Áæ¢Pü Áj" (Appropriate Authority) UÀ¼£ À ÁßV vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ ºÁUÀÆ ªÀÄÄA¢£À DzÉñÀzÀªg À ÉUÉ £ÉëĹzÉ.
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À ÀÄ (°AUÀ DAiÉÄÌ ¤µÉÃzsÀ) PÁAiÉÄÝ 1994gÀ ¸ÉPÀë£ï 17 (3)(©) gÀ°è ¤ÃqÀ®ànÖgÀĪÀ C¢üPÁgÀª£ À ÀÄß ZÀ¯Á¬Ä¹ °AUÁ£ÀÄ¥ÁvÀ EgÀĪÀ gÁdåzÀ f¯ÉèU¼ À ÁzÀ ©eÁ¥ÀÄgÀ, ¨ÁUÀ®PÉÆÃmÉ, zÁªÀtUÉg,É ¨É¼U À ÁA, avÀz æ ÀÄUÀð, ªÀÄAqÀå, ©ÃzÀgï ªÀÄvÀÄÛ UÀÄ®âUÀð f¯ÉèU¼ À À "G¥À «¨sÁUÁ¢üPÁj" (Assistant Commissioner) UÀ¼£ À ÀÄß CªÀgÀ G¥À «¨sÁUÀU½ À UÉ ¸ÀA§A¢ü¹zÀAvÉ "¸ÀPÀëªÀÄ ¥Áæ¢Pü Áj"
(Appropriate Authority at sub-district level) UÀ¼£ À ÁßV vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ ºÁUÀÆ ªÀÄÄA¢£À DzÉñÀzÀªg À U É É £ÉëĹzÉ.11
¢£ÁAPÀ: 2-12-1997 gÀAzÀÄ ºÉÆgÀr¸À¯ÁzÀ PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ C¢ü¸ÀÆZÀ£É ¸ÀASÉå: DPÀÄPÀ 119 J¥sï¦Dgï 94 C£ÀÄß vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ gÀzÀÄÝ¥Àr¹zÉ.
PÀ£ÁðlPÀ gÁdå¥Á®gÀ DeÁУÀĸÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸j À £À°è, ¸À»/-
(L.ºÉêÀÄ£Áxï) ¸ÀPÁðgÀzÀ C¢üãÀ PÁAiÀÄðzÀ²ð, DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉ EªÀjUÉ:
¸ÀAPÀ®PÁgÀgÀÄ, PÀ£ÁðlPÀ gÁdå ¥ÀvÀæ, ¨ÉAUÀ¼ÀÆgÀÄ EªÀjUÉ «±ÉõÀ UÉeÉmï£À°è ¥ÀPæ ÀlUÉƽ¹ 200 ¥Àw æ UÀ¼£ À ï£ÀÄ DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉ, ªÉÆzÀ®£Éà ªÀĺÀr, «PÁ±À ¸ËzsÀ, ¨ÉAUÀ¼ÀÆgÀÄ E°èUÉ PÀ¼ÀÄ»¸ÀĪÀAvÉ PÉÆÃjzÉ.
11. Therefore, on a conjoint reading of the provisions of the Act and the notification, what can be unmistakably gathered is that the Assistant Commissioner is the Appropriate Authority appointed under the Act.
12. Section 28 of the Act which deals with Cognizance of offences and reads as follows:
"28. Cognizance 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 authorised in 12 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.
Explanation.--For the purpose of this clause, "person" includes a social organisation.
2. No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
3. Where a complaint has been made under clause (b) of sub-section (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person."
13. Section 28 mandates that no Court shall take cognizance of an offence under the Act except on a complaint made by the Appropriate Authority concerned or any officer authorized in this behalf by the Central Government or the State Government as the case would be. Therefore, registration of a complaint is required to be done only from the hands of an 13 Appropriate Authority. Thus, the complaint registered by the respondent -Taluka Health Officer is without doubt without jurisdiction.
14. The submission of the learned High Court Government Pleader that the Taluka Health Officer is delegated with the responsibility by the Assistant Commissioner is to be noticed only to be repelled, as the provisions of the Act are unequivocal. Appointing an Authority under the Act would be the Appropriate Authority or any officer authorized either by the Central Government or by the State Government. This is to be done in terms of the notification and the notification is issued appointing the Assistant Commissioner.
15. Therefore, the order of the learned Magistrate taking cognizance of a complaint registered under Section 28 of the Act is erroneous, as cognizance under Section 28 of the Act cannot be taken except on a complaint being registered by an Appropriate Authority.
16. The admitted facts reveal that Taluka Health Officer is not the Appropriate Authority or the authorized officer under 14 the Act. Therefore, the very complaint registered by the respondent is without authority of law. The action of the learned Magistrate in taking cognizance under Section 28 of the Act is sequentially rendered unsustainable. In the light of all the actions impugned being ones without jurisdiction, the petition deserves to succeed, failing which, it would result in miscarriage of justice.
17. For the aforesaid reasons, the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The impugned proceedings in C.C.No.910/2016 pending before the Principal Civil Judge and JMFC, Gokak stand quashed.
Sd/-
JUDGE Mrk/-