Gujarat High Court
Rajesh Kumar Kanchhal vs Dipakbhai S. Bhavsar on 28 April, 2023
R/CR.MA/3143/2020 ORDER DATED: 28/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3143 of 2020
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RAJESH KUMAR KANCHHAL
Versus
DIPAKBHAI S. BHAVSAR
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Appearance:
MS RV ACHARYA(1124) for the Applicant(s) No. 1
MR DEEPAKKUMAR R JATAV(11716) for the Respondent(s) No. 1,2
Ms. C M Shah, Addl. PUBLIC PROSECUTOR for the Respondent(s) No.
3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 28/04/2023
ORAL ORDER
1.0. Heard Ms. R V Acharya, learned advocate for the applicant- original complainant, Mr. S P Kotia, learned advocate who has appeared for Mr. Deepakkumar Jatav, learned advocate for the respondent nos. 1 and 2- original accused and Ms. C M Shah, learned Additional Public Prosecutor who has appeared on behalf of the State. Rule returnable forthwith. Mr. Deepakkumar Jatav, learned advocate waives service of Rule on behalf of respondent nos. 1 and 2 and Ms.Shah, learned Additional Public Prosecutor waives service of Rule on behalf of the respondent State.
2.0. This application is filed seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 25.10.2019 passed by the learned Additional Chief Judicial Magistrate, Surat in Criminal Case No.18915 of 2011 in connection with the offence registered Page 1 of 3 Downloaded on : Fri Apr 28 21:05:51 IST 2023 R/CR.MA/3143/2020 ORDER DATED: 28/04/2023 under Section 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "PC & PNDT Act").
3.0. Ms. Acharya, learned advocate for the applicant- original complainant has submitted that the learned Magistrate has failed to appreciate the provisions of the PC & PNDT Act, more particularly, Rule 4 & 5 of Rules, 1996. She has submitted that it has come on record that Sonography Machine was found in the clinic of respondent nos. 1 and 2- original accused and as per the aforesaid Rules, the respondents -accused were expected to get themselves registered prior to using sonography machine. Admittedly, no evidence has come on record to indicate that the respondents- accused have obtained registration under the prescribed Rules prior to use of sonography machine. She, therefore, submitted that case was made out for the offence committed by the respondent nos. 1 and 2 under the PC & PNDT Act. She, therefore, urge this Court to grant leave to appeal.
4.0. The submissions made by learned advocate for the applicant has been vehemently opposed by Mr. Kotia, learned advocate who has appeared on behalf of respondents no.1 and 2
- original accused. He has invited attention of this Court to the reasons assigned by the trial Court while recording order of acquittal. He has submitted that the present appeal at the instance of the applicant itself is not maintainable in absence of any specific averment being made that the applicant is holding charge as appropriate authority to file the present appeal. He placed reliance upon the cross examination of the complainant Page 2 of 3 Downloaded on : Fri Apr 28 21:05:51 IST 2023 R/CR.MA/3143/2020 ORDER DATED: 28/04/2023 and the defence raised by the accused which goes to suggest that no evidence has come on record to show that the sonography machine was used. In fact, the sonography machine was not in use. He further submitted that no allegation has been made against respondent no.2 and in fact she was required to be discharged from the proceedings. He objected to grant of leave to appeal.
5.0. Considering the submissions made by the learned advocates for the respective parties and having perused the impugned judgment and order and grounds raised in the appeal memo, prima facie, the Court finds that in the complaint the allegation was made with regard to violation of provision of PC & PNDT Act contending that the sonography machine was found in a clinic which was not registered with the appropriate authority under the PC & PNDT Act. Indisputably no evidence has come on record to suggest that the clinic was registered as provided under Rules 4 & 5 of the Rules. In absence of registration, the offence punishable under Section 25 of the PC & PNDT Act would be attracted. The Court is of the view that arguable case is made out by the applicant at this stage to grant leave to appeal. Hence, this application seeking leave to appeal is allowed. Rule is made absolute to the aforesaid extent.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 3 of 3 Downloaded on : Fri Apr 28 21:05:51 IST 2023