Punjab-Haryana High Court
Tejinder Pal Singh Multani vs State Of Punjab And Another on 16 September, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No.M-10163 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-10163 of 2014
Date of Decision: 16.09.2014
Dr. Tejinder Pal Singh Multani ....Petitioner
Versus
State of Punjab and another ....Respondents
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. K.S. Dadwal, Advocate
for the petitioner.
Mr. P.S. Ghuman, Addl. A.G., Punjab
for the respondent-State.
*****
DAYA CHAUDHARY, J.
The present petition has been filed under Section 482 Cr.P.C for quashing of FIR No.78 dated 15.08.2012 under Section 23 of Pre Conception and Pre Natal Diagnostic Techniques Act, 1996 (here-in-after referred to as 'the PNDT Act') and Maternity Benefit Act, 1961 registered at Police Station Bholath, District Kapurthala as well as all subsequent proceedings arising therefrom.
Learned counsel for the petitioner submits that as per Section 17 of the PNDT Act, the Appropriate Authority has been prescribed but none of the Authority has put the Court into motion and as such, in view of provisions of Section 28 of the PNDT Act, the taking of cognizance of offence under the PNDT Act is totally contrary to the provisions of the Act. Learned counsel also submits that the Appropriate Authority or authorized officer is to give notice of not less than 15 days in the manner prescribed. The powers to search and seize the record is also provided under Section 30 of the PNDT Act. The trial Court has not taken into consideration the specific bar contained in Section 28 of the PNDT Act and by relying upon GURPREET KAUR 2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-10163 of 2014 2 the judgment in case Dr. Preetinder Kaur and others vs The State of Punjab and others, decided on 10.02.2010, the charges have been framed and the continuation of the proceedings against the petitioner is not only misuse of process of the Court but also no prima facie offence is made out against the petitioner as the petitioner has not conducted any test at the pre natal stage. Said judgment is not applicable in view of the facts and circumstances of the present case. Learned counsel further submits that the FIR as well as charge sheet and other proceedings arising therefrom are liable to be quashed being without any jurisdiction and especially keeping in view the provisions as enshrined under Section 28 of the PNDT Act as no power is there with the police to investigate the matter and the cognizance has to be taken by the Magistrate only on the basis of complaint filed before the appropriate authority. Learned counsel further submits that the case of the present petitioner is squarely covered by the judgment of Gujrat High Court in case SUO MOTU vs State of Gujarat passed in Criminal Reference No.4 of 2008 with Criminal Reference No.3 of 2008.
Learned counsel for the respondent-State has fairly admitted the submissions made by learned counsel for the petitioner.
Heard the arguments of learned counsel for the parties and have also gone through the file.
For consideration of the controversy in the case in hand, Section 28 of the PNDT Act is reproduced as under :-
"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 authorized in this behalf by the Central Government or State Government, as the case may be, or the GURPREET KAUR 2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-10163 of 2014 3 Appropriate Authority ; or
(b) 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 organization.
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."
From perusal of Section 28 of the PNDT Act, it is clear that the Appropriate Authority or the authorized officer is to give notice of not less than 15 days in the manner prescribed to the appropriate authority.
Section 30 of the PNDT Act provides that in case, the Appropriate Authority has reasons to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place, such Authority or any officer authorized in this behalf may, subject to such Rules as applicable, enter and search at all reasonable times with such assistance, if any, and in case, the Authority or officer authorized so consider necessary and thereafter he can seize and seal the same if reasons are there. It may furnish evidence for the commission of an offence punishable under the said Section.
Section 30 of the PNDT Act is reproduced as under :-
"30. Power to search and seize records, etc. -
1. If the Appropriate Authority has reason to believe GURPREET KAUR 2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-10163 of 2014 4 that an offence under this Act has been or is being committed at any Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic or any other place, such Authority or any officer authorized thereof in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such authority or officer considers necessary, such Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.
2. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches and seizures shall, so far as may be, apply to every search or seizure made under this Act."
It is clear from the provisions of Section 28 of the PNDT Act that no FIR could have been registered against the petitioner.
Under Section 2(a) of the PNDT Act, the "Appropriate Authority" has been defined as under :-
"2. Definition : In this Act, unless the context otherwise requires :
(a) "Appropriate Authority" means the Appropriate Authority appointed under Section 17."
From the perusal of definition of "Appropriate Authority", it is clear that reference has been made to Section 17 of the PNDT Act, which is reproduced as under :-
"17. Appropriate Authority and Advisory Committee.-
1. The Central Government shall appoint, by Notification in the Official Gazette, one or more Appropriate GURPREET KAUR Authorities for each of the Union Territories for the 2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-10163 of 2014 5 purposes of this Act.
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. PNDT Act, 1994 and Amendments.
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 multimember 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.
(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 Counseling Centre, Genetic Laboratory or Genetic Clinic;
(b) to enforce standards prescribed for the Genetic Counseling Centre, Genetic Laboratory and Genetic GURPREET KAUR Clinic;2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-10163 of 2014 6
(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;
(h) to recommend to the CSB 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, obstetricians, 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 GURPREET KAUR one shall be from amongst representatives of women's 2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-10163 of 2014 7 organizations.
7. No person who has been associated with the use or promotion of pre-natal diagnostic technique 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
(d)any other matter which may be prescribed."
It is clear from the facts as mentioned above that in the present case, the cognizance of offence has been taken contrary to the provisions of the PNDT Act. Under Section 17 of the PNDT Act, the Authorities have been mentioned and prescribed but none of the Authority has put the Court into motion and as such, the proceedings are contrary to GURPREET KAUR 2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-10163 of 2014 8 the provisions of PNDT Act.
As per provisions of Section 28 of the PNDT Act that there is specific bar to lodge FIR. The petitioner has brought this fact to the notice of the police authorities but in spite of that, the FIR has been registered and even challan has been filed on the basis of which, the charges have also been framed.
This controversy was before the Gujarat High Court in Suo Moto's case (supra), wherein, it was held that as per clause (a) of sub- section (1) of Section 28 of the PNDT Act, only the complaint can be filed by an officer, who is authorised in that behalf by the Central Government, the State Government or the Appropriate Authority, besides the Appropriate Authority itself. The power to delegate and authorise an officer to make a complaint is conferred upon all the three authorities under the provisions of section 28, and, therefore, a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in that behalf by the Appropriate Authority.
In the present case also, the FIR and other proceedings are contrary to the provisions of PNDT Act as there is an express legal bar and still the FIR has been lodged and on the basis of said FIR, the charges have been framed against the petitioner. The trial Court has failed to take into consideration the facts and circumstances of the case and especially, the legal provisions which debars the police from further proceedings with the matter as the police cannot take cognizance without the complaint filed by the Appropriate Authority.
Accordingly, the present petition is allowed and the FIR No.78 dated 15.08.2012 registered under Section 23 of Pre Conception and Pre Natal Diagnostic Techniques Act, 1996 and Maternity Benefit Act, 1961 at Police Station Bholath, District Kapurthala as well as order dated GURPREET KAUR 2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-10163 of 2014 9 20.02.2014 passed by the Judicial Magistrate Ist Class, Kapurthala framing the charge and all other subsequent proceedings arising therefrom are quashed qua the present petitioner.
However, the prescribed authority is at liberty to initiate proceedings as per law provided under the PNDT Act.
(DAYA CHAUDHARY) 16.09.2014 JUDGE gurpreet GURPREET KAUR 2014.09.23 10:04 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh