Delhi District Court
Munna vs State on 22 July, 2022
IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH DISTRICT,
ROHINI, DELHI
Crl. Revision no. 78/2022 ( DLNT01010025482022)
1. Munna
S/o Late Lal Babu Shah
R/o G111, Jhuggi, GBlock, Jahangir Puri
Delhi
2. Surbala Chauhan
W/o Mahender Singh Chauhan
R/o Chauhan Hospital, Palla Road
Bakhtawarpur, Delhi. .......... Revisionists/Petitioners.
Versus
State
NCT of Delhi
Respondent.
Date of Institution : 31.03.2022
Date of Reserving the Order : 09.06.2022
Order Pronounced on : 22.07.2022
O R D E R:
1. This is the revision petition preferred by the petitioner herein against the impugned order dated 01.10.2020 passed by the court of Ld. CMM, North, Rohini, in FIR No.719/2016 titled as 'State V. Munna', whereby the cognizance has been taken and the petitioners have been summoned by the Ld. Trial Court to face trial for the offence u/s 420/34 IPC & 3A/4/5/6/23 Pre Conception and PreNatal Diagnostic Technique (Prohibition of Sex Selection Act ) ( hereinafter referred to as PCPNDT Act) Page 1/10
2. The facts in brief are that the FIR No. 719/2016 under Section 3/3A/4/5/6/23/25 PC & PNDT Act and Section 420/34 IPC was lodged with Police Station Alipur on 30.12.2016 on the basis of complaint made by Dr. Abhijeet Yadav, Nodal Officer (PNDT), North District wherein he alleged that owner of Chauhan Hospital Palla Road, Bakhtawarpur, Tanda, Delhi alongwith accused Surbala Chauhan (petitioner no.2 herein), Munna (petitioner no.1 herein), Dr. Sanyal Kumar, owner of North Delhi Advanced Diagnostics and MRI Centre are involved in heinous crime of sex determination. Accordingly, a decoy patient was sent to the said hospital on 30.12.2016 and petitioner no.2 (accused before the Ld. Trial Court) demanded Rs.15,000/ for sex determination and made a false referral slip in the name of Nitu W/o Bhola with fake I.D available with said patient and petitioner no.1 (accused before the Ld. Trial Court) who was working the said hospital accompanied the said decoy patient of North Delhi Advanced Diagnostics & MRI Centre where the sex determination test was conducted of the said decoy patient. The PC PNDT team of Delhi as well as Jhajjar were tracking them. On a designated signal made by decoy patient, the teams swung into action and nabbed accused Munna/petitioner no.1 herein. The amount given by decoy patient to accused/petitioner no.2 herein for conducting prenatal determination test was recovered from petitioner no.2 in the presence of SDM. On completion of investigation, the chargesheet was filed. The Ld. CMM after taking cognizance of the offence summoned the petitioners herein vide impugned order dated 01.10.2020.
3. The said impugned order has been primarily challenged on the following Page 2/10 grounds :
(a) The Ld. CMM has erred in taking cognizance of the offence in the absence of any complaint under Section 28 of the PC &PNDT Act as per Section 17 of the said Act. In this regard, reliance has been placed in case titled Manvinder Singh Gill V. State of M.P. 2014 (134) AIC580 and Dr. Amritlal Rohledar V. State of Chattishgarh & Ors vide Cr. M.P. No. 2378/2019.
(b) Ld. CMM failed to appreciate that the FIR in question is not maintainable as per terms of Section 28 of PC&PNDT Act.
Further, reliance has been placed on notification no.
F.9/7/1/DFW/PNDT/03/Pt/327339 dated 18.05.2009 read with Notification No. F.9(1)(2)PNDT/DFW/03/33043319 dated 23.04.2014 issued by Health and Family Welfare Department, Govt of NCT of Delhi
(c) Ld. CMM further failed to appreciate that a separate chargesheet could be filed for the violation of Section 420/34 IPC and a separate complaint under Section 28 of PC &PNDT Act could be filed by the District Magistrate/District Appropriate Authority for violation of provision under PC&PNDT Act within stipulated period of three years which has already lapsed. However, in the present case, cognizance for violation of provisions of PC&PNDT Act and has been filed in the absence of complaint under Section 28 of the Act which is totally illegal and Page 3/10 barred by the Act.
(d) The impugned order passed is illegal and based on surmises and conjectures and therefore bad in law.
(e) The Ld. CMM failed to appreciate that the District Appropriate Authority has never taken any action against the Centre till filing of the present complaint.
(f) There is no prima facie evidence to show the revisionists have contravened any provision of PC & PNDT Act.
(g) Ld. CMM also failed to appreciate that investigating authority has failed to procure any documents or proof to show that the revisionist were involved in the present case. The revisionists have been falsely implicated in the case due to personal animosity of their competitors.
(h) Ld. CMM failed to consider that all the allegations against revisionist without any discretion or on instance of the revisionists and therefore, the impugned order for taking the cognizance and summoned the petitioners is illegal.
4. The Ld. Counsel for the petitioner, in support of the said grounds, further argued that the cognizance of the offences taken by the Ld. Trial Court vide its order dated 01.10.2020 is illegal in view of the mandatory provisions under Page 4/10 Section 28 of PCPNDT Act as there was no separate complaint filed by the Appropriate Authority as designated under Section 17 of the said Act. In this regard, the reliance is placed on the notification No. F.9/7/1/DFW/PNDT/03 /Pt/327339 dated 18.05.2009 read with Notification No. F.9(1) (2)PNDT/DFW/03/33043319 dated 23.04.2014 issued by Health and Family Welfare Department, Govt of NCT of Delhi.
4.1 It is further argued on behalf of the petitioners/revisionists that the said order of cognizance is also against provisions of Section 468471 of Cr.P.C as the maximum punishment prescribed under the PCPNDT Act is three years. In the present case, as per the case of prosecution, the offence took place on 30.12.2016 and the chargesheet was filed on 01.10.2020. Admittedly, beyond the period of three years. Hence the case is barred by limitation.
5. Per contra, Ld. Chief PP for the State/Respondent argued that there is no legal infirmity in the impugned order which calls for any interference. It is further argued that the first ground taken by the petitioners qua cognizance being bad in view of Section 28 of PCPNDT Act is only a hypertechnical objection as record itself reflects that the FIR in question was got registered on the complaint of Dr. Abhijeet Yadav, the Nodal Officer, under the PCPNDT Act. There is also authorisation letter issued by D.M North which is the District Appropriate Authority in his favour for the prosecution of the present case. Further, it is argued that the Section 27 of the Act shows that the offence in question was a cognizable offence and the police is authorised to conduct the investigation. 5.1 Lastly, it is argued on behalf of the State that as far as the issue of limitation is concerned, the FIR as well as the chargesheet is also filed for the offence under Section 420/34 IPC apart from the offences under the PCPNDT Act. Therefore, Page 5/10 the issue of limitation is irrelevant as offence under Section 420 IPC is punishable with the imprisonment for a period of seven years. Though it is fairly admitted by Ld. Addl. PP for the State that the present revision petition has been filed within stipulated period as limitation in case is the same is covered by virtue of the order of the Hon'ble Supreme Court extending the period of limitation in view of the Pandemic Covid19.
6. I have heard the Ld. Counsels for the parties and have considered the material placed on record.
7. The first ground on which the present revision petition has been filed is the noncompliance of Section 28 of PCPNDT Act which mandates that no court can take cognizances of the offences under the Act except on a complaint made by (A) Appropriate Authority concerned, (B) any Officer authorized in this behalf by Central or State Government and (C) or any Officer authorized by the Appropriate Authority. The reliance is also placed upon Section 17 of the Act which defines the term 'Appropriate Authority'.
8. It is the well settled proposition of law qua the offences under the PCPNDT Act that the court of Metropolitan Magistrate is authorised to take cognizance only on a complaint made by the appropriate authority or any officer authorised in this regard either by Government or Appropriate Authority. The petitioners herein have placed on record the notification dated 23.04.2014 issued by Government of GNCT Delhi in exercise of the powers conferred upon it under Section 17 (2) and 3 (a) of the Act. By virtue of the said powers, the Page 6/10 members of the State Appropriate Authority for National Capital Territory of Delhi, has been enumerated. Further, by the same notification and in super session of early notification dated 18.05.2009, the District Appropriate Authority has been defined which is now the Deputy Commissioner (DC)/District Magistrate (DM) of the district concerned. In the present case in hand, the Appropriate Authority under the Act for filing the complaint is the D.M/Deputy Commissioner, District North, Delhi.
9. Admittedly, as per the chargesheet, the present case in hand was got instituted on the basis of FIR registered pursuant to the complaint made by Dr. Abhijeet Yadav, Nodal Officer, PCPNDT Act. After completion of the investigation, chargesheet under Section 173 Cr.P.C was was filed before the Ld. Trial Court. Thus, no separate complaint as envisaged under the Act was before the Ld. Trial Court at the time of taking cognizance. The mere filing of the complaint to SHO Alipur by the Nodal Officer is not the compliance of mandatory provisions of law. A separate complaint has to be there as has been decided by Hon'ble Supreme Court in Manvinder Singh Gill (supra) case. It is also well settled proposition of law that once a law mandates certain act to be done in a particular manner, it has to be followed ( To support this court I am guided by the judgment of Hon'ble Supreme Court in A.K. Roy & Anr. v. State of Punjab, 1986 AIR 2160). Apart from that, this issue has also been dealt with by Hon'ble Delhi High Court in case titled Harsh Mahajan & Ors. V. State of NCT of Delhi & Ors, MANU/DE/1016/2016 as has been relied upon by the petitioner. The relevant para45 of the said judgment is reproduced for the sake of convenience:
Page 7/10"45. Even if it is taken as correct the same is not in compliance of the said Section as in the said letter there is no reference of any offence under the PCPNDT Act along with the name of the persons against whom the complaint is sought to be made as by that time by her own showing she suspected that the alleged sex determination was done upon her during the ultrasound at the Jaipur Golden Hospital and accordingly in the said letter was supposed to name the persons against whom she intends to make a complaint before the court for commission of offence under the PCPNDT Act. The Magistrate had no jurisdiction to take cognizance on the complaint dated 22nd November, 2008 in view of the statutory bar under Section 28 of the PCPNDT Act."
10. Therefore, the argument on behalf of the State that the complaint by the Nodal Officer to SHO Alipur be taken as complaint u/s 28 of PCPNDT Act is a argument without any legal sanctity .In view of the said wellsettled proposition of law, the order of taking cognizance for the offences under Section 3A/4/5/6/23 of PCPNDT Act on basis of a chargesheet filed u/s 173 of CrPC is bad in law and illegal and is liable to set aside.
11. Now, coming to the second ground regarding summoning order being bad as chargesheet was filed after delay of more than three years of date of offence and hence, the period of limitation having already expired. In this regard, the petitioner herein has primarily placed reliance on Section 468 Cr.P.C which envisages three years limitation for filing of the chargesheet in case of offences punishable with imprisonment upto three years. The said ground, on the face of it, Page 8/10 liable to set aside. The material available before the Ld. Trial Court and the offences for which the cognizance has been taken was for offences 3A/4/5/6/23 of PCPNDT Act and under Section 420/34 IPC. Therefore, the cognizance has not been taken only for the offences under Section PCPNDT Act but has been taken under Section 420 IPC also which is punishable with imprisonment upto seven years. Therefore, the Section 468 of Cr.P.C had no application and there is no period of limitation in the present case for filing of the chargesheet for the offene under Section 420 IPC. The reliance placed upon Harsh Mahajan (supra) case has no application in the present case as in that case the complaint was only for the offence under Section 23 of the PCPNDT Act which is not the case herein.
12. The other limb of the argument of the petitioners/revisionists is that even the registration of the FIR in the present case is illegal and in this regard, the reliance is placed upon the judgment in case titled Dr. Amrit Lal Rohledar (supra) case of Hon'ble High Court of Chattisgarh. The said contention on behalf of the petitioners is liable to be rejected in view of the fact that right since the beginning of the present case after the registration of the FIR, the offence under Section 420/34 IPC was under investigation and has been investigated. Even the chargesheet has been filed for prosecution of the offenders under Section 420/34 IPC. Therefore, there was no bar on the police officials to register the FIR for the offence of cheating and subsequently filing the chargesheet. The abovenoted judgment is distinguishable on facts as in that case the FIR was registered solely for the offence under Section 23 of PCPNDT Act. As far as the issue of there being sufficient material on record to proceed against the petitioners and other accused persons for the offence under Section 420/34 IPC is concerned, the same Page 9/10 shall be taken by the Ld. Trial Court at the stage of charge and this court has no jurisdiction to interfere qua the said offences at this stage in the present revision petition.
13. In view of the abovediscussed reasons and observations, the impugned order dated 01.10.2020 of the Ld. Trial Court taking cognizance of the offences under Section 3A/4/5/6/23 of PCPNDT Act is bad and illegal and is accordingly set aside. However, the said order of the Ld. Trial Court qua cognizance and summoning of the accused persons to face the trial for the offence under Section 420/34 IPC is neither challenged nor is liable to be set aside on the abovenoted grounds. Petitioner to accordingly face the said summoning order for the offence under Section 420/34 IPC though they have all the rights to raise their defence regarding said allegations at the stage of charge.
TCR be sent back with a copy of this order.
Revision file be consigned to Record Room.
Announced in the Open Court (GAGANDEEP SINGH)
on 22.07.2022 Addl. Sessions Judge/
Spl. Judge (NDPS), North
District, Rohini Courts, Delhi.
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