Madhya Pradesh High Court
Dr. Harihar Nath Garg vs The State Of Madhya Pradesh on 7 March, 2017
1
M.Cr.C. No.13583/2016
(Dr. Harihar Nath Garg v. State of MP & Others)
07.03.2017
Shri MPS Raghuwanshi, Advocate for the petitioner.
Shri C.R. Roman, learned Government Advocate for the
respondent no. 1-State.
Shri H. K. Shukla, learned counsel for respondent no.2. None for respondent no.3.
Heard.
1. Petitioner has filed this petition under Section 482, Cr.P.C. for quashing Criminal Complaint No.12712/16 filed by respondent no.2-Shivbhan Singh Rathore so also for quashing order dated 01.10.2016 passed by the Chief Judicial Magistrate, Bhind, taking cognizance of offences under the provisions of Section 23 (1) and 23 (3) of the Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter for short referred to "PC-PNDT Act"), on the ground that from perusal of the complaint, which has been enclosed by the petitioner as Annexure A/1, none of the conditions are met to show violation of the provisions of the Act and with a further prayer that since the provisions of Section 3 (3) have been stayed by the Bombay High Court, no violation can be said to have been made by the petitioner, all these provisions as have been sought to be made out in para 18 as those provisions are since under stay from the Bombay High Court, those provisions will not be attracted to the facts and circumstances of the case.
2. Learned counsel for the petitioner has taken this Court through para 13 to para 19 to submit that none of the violations as pointed out by the complainant are made out and it is a false and frivolous complaint to blackmail the 2 M.Cr.C. No.13583/2016 (Dr. Harihar Nath Garg v. State of MP & Others) petitioner. It is also submitted that the conduct of respondent no.2 is itself under cloud inasmuch as he is an accused in a rape case and therefore such person has no authority to file a complaint against the petitioner, who is reputed doctor having put in more than 40 years of service to the society.
3. Learned counsel for the petitioner submits that the petitioner has placed in service From-F as issued under the proviso to Section 4 (3), Rule 9 (4) and Rule 10 (1A) of the PC-PNDT Act and the Rules made thereunder to show that there is no violation of any of the provisions alleged in the complaint. A close scrutiny of the provisions and the Annexures P/17 to P/26, reveals that prima-facie there is no violation of any of the provisions of the Act so as to entitle the Court of JMFC to take cognizance for the offences under Sections 23 (1) read with Section 23 (3) of the PC-PNDT Act.
4. Learned counsel for the petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Prabhu Chawla v. State of Rajasthan & Anr. as reported in 2016 Cr.L.R.(SC) 883, wherein the ratio of the judgment is that despite availability of remedy of revision, the petition under Section 482, Cr.P.C. is maintainable. Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Punjab State Warehousing Corporation, Faridkot v. Shree Durga Ji Traders & Others as reported in (2013) 3 SCC (Cri) 713, wherein the Hon'ble Supreme Court has held that availability of alternative remedy of filing appeal is not an absolute bar to entertaining a petition under 3 M.Cr.C. No.13583/2016 (Dr. Harihar Nath Garg v. State of MP & Others) S.482, Cr.P.C. Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of V.P. Shrivastava v. Indian Explosvies Limited & Others as reported in (2010) 10 SCC 361, wherein placing reliance on para 39 and 41, the learned counsel for the petitioner submits that since no prima-facie case has been made out against the petitioner in respect of the alleged offences under the provisions of Sections 3, 4, 5 and 6 of PC-PNDT Act therefore this is a fit case for exercise of jurisdiction under Section 482, Cr.P.C. for quashing the complaint against the petitioner.
5. On the other hand, the learned counsel for respondent no.2 submits that he is a social worker and some false case filed against him will not deter him from performing his social obligation of bringing malpractices for violation of the provisions of the PC-PNDT Act. He also submits that in fact respondent no.2 has been acquitted from the charges of rape as were levelled on him and submits that he had examined three persons including CMHO of Bhind in favour of his complaint and after taking into consideration the statements of three witnesses, a private complaint has been registered by CJM Bhind taking cognizance of the offences under Sections 23 (1) and 23 (3) of the PC-PNDT Act. Learned counsel for respondent no.2 has placed reliance on the judgment of the Hon'ble Supreme Court in the case of K.K. Singhal & Others v. Steel Strips Ltd. as reported in 2015 (1) CCSC 477 (SC), wherein the Hon'ble Supreme Court had upheld the decision of the lower Court in 4 M.Cr.C. No.13583/2016 (Dr. Harihar Nath Garg v. State of MP & Others) dismissing the proceedings under Section 482, Cr.P.C. for quashing the complaint under the provisions of Sections 417, 418 and 420 read with Section 120 of IPC. He submits that since respondent no.2 has filed a revision before the Sessions Court against the order of taking cognizance, whereby the learned CJM has refused to take cognizance under the provisions of Sections 420, 467, 471 and 120B of IPC, therefore the proper way for the petitioner would have been to approach the revisional Court rather than approaching this Court under its inherent jurisdiction under Section 482, Cr.P.C. He submits that prima-facie, the case is made out and there is gross violation of the provisions of the PC-PNDT Act inasmuch as Section 4(3) provides that no pre- natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely :-
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the 5 M.Cr.C. No.13583/2016 (Dr. Harihar Nath Garg v. State of MP & Others) Board.
6. The documents submitted by the petitioner as Annexures P/17 to P/26 do not disclose that the petitioner had recorded reasons in writing about fulfillment of the conditions laid down in Section 4 (3) of the PC-PNDT Act. Similarly, it is submitted that Section 5 provides that written consent of pregnant woman has to be taken in the language which she understands, but there is no such informed consent and thumb impression has been obtained on a proforma. Therefore, prima-facie there is sufficient material even if the plea of the petitioner about non-availability of the avenue of prosecution under Section 3 (3) is also taken into consideration for framing of the charges under Sections 23 (1) and 23 (3) of PC-PNDT Act and therefore since there is prima-facie material to substantiate the charges and further even in the case of first time pregnancy of woman, general column under Section 4 (2) (iv) and (v) have been ticked, whereas this is too general inasmuch as unless the gynecologist is satisfied about existence of the conditions mentioned in Section 4 (3), no pre-natal diagnostic techniques could have been applied under sub-section (2) of Section 4.
7. In view of the aforesaid submissions, which are also borne from the record, which has been submitted by the petitioner himself, shows that the form F is in English, there is no mention of consent being obtained after reading terms and conditions mentioned in that Form in English language, in the language to be understood by the patient, this Court is 6 M.Cr.C. No.13583/2016 (Dr. Harihar Nath Garg v. State of MP & Others) of the view that as there is no error in the impugned order taking cognizance of offfences under Sections 23 (1) and 23 (3) of the PC-PNDT Act calling for interference in the order under exercise of extraordinary jurisdiction of this Court under Section 482, Cr.P.C. Thus, this petition fails and is hereby dismissed.
Certified copy as per rules.
(Vivek Agarwal)
meh/ Judge