Gujarat High Court
Pareshbhai Nagindas Seth vs State Of Gujarat & on 23 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1427/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1427 of 2017
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PARESHBHAI NAGINDAS SETH....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
KSHITIJ M AMIN, ADVOCATE for the Applicant(s) No. 1
MR. RAHUL R DHOLAKIA, ADVOCATE for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/02/2017
ORAL ORDER
RULE returnable forthwith. Ms.Pathak, the learned APP waives service of notice of rule for and on behalf of the respondents.
By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a practicing Gynecologist, has prayed for the following reliefs :
"A. This Hon'ble Court may be pleased to admit and allow this petition;
B. This Hon'ble Court may be pleased to quash and set aside the FIR being I-CR No.17 of 2015 registered with Mahila Police Station, Ahmedabad as well as Criminal Case No.356 of 2015 pending adjudication before the Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri Feb 24 00:50:44 IST 2017 R/SCR.A/1427/2017 ORDER court of Ld. Metropolitan Magistrate, Court No.18, Ahmedbad, in the interest of justice;
C. Pending admission, hearing and final disposal of the petition, this Hon'ble Court be pleased to stay the further proceedings of Criminal Case No.356 of 2015 pending adjudication before the court of Ld. Metropolitan Magistrate, Court No.18, Ahmedbad, in the interest of justice;
D. To pass such other and further order/s necessary in the interest of justice;"
It appears from the materials on record that one Dr.Shilpaben Kanubhai Yadav, serving as the District Appropriate Authority, PNDT Act, and incharge Chief District Health Officer, Ahmedabad, lodged a FIR against the writ- applicant herein being CR No.I-17 of 2015 registered with the Mahila Police Station, Ahmedabad, for the offence punishable under Sections 22, 23, 24 and 25 of the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
The sum and substance of the allegations levelled in the first information report are that the applicant herein is a practicing Gynecologist at Ahmedabad, and she conducted a sonography for the purpose of determining the sex of the foetus. At the end of the investigation, the Investigating Officer filed the charge-sheet and the filing of the charge-sheet culminated in the Criminal Case No.356 of 2015, which is pending as on date in the court of the learned Metropolitan Magistrate, Court No.18, Ahmedabad.
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R/SCR.A/1427/2017 ORDER
Mr.Dholakia, the learned counsel appearing for the applicant has two-fold submissions to canvass. His first submission is that having regard to the provisions Section 28 of the Act, the court concerned could not have taken cognizance of the alleged offence based on a police report. His second submission is that even if the prosecution is maintainable, the first informant could not have lodged the FIR, she not being the appropriate authority or an officer authorized by the State Government in that regard.
This writ-application has been opposed by Ms.Shruti Pathak, the learned APP appearing for the State.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the prosecution initiated against the applicant herein is maintainable.
The moot question that falls for my consideration is, whether cognizance could have been taken by the court concerned on a police report for the offence under the Act, 1994.
Section 28 of the Act, 1994 reads as under :
"Section-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 this behalf by the Central Government or State Government, as the case Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Feb 24 00:50:44 IST 2017 R/SCR.A/1427/2017 ORDER 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 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 subsection (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."
The plain reading of Section 28 of the Act makes it abundantly clear that cognizance of an offence under the Act, 1994 can be taken by the Court only upon a complaint made by the appropriate authority or any officer authorized in this behalf by the State Government. The term complaint in section 28 of the Act should be construed as one defined under section 2(d) of the Criminal Procedure Code. Section 2(d) of the Criminal Procedure Code reads as under;
"2(d) complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
Section 28 of the Act is almost at par with section 195 of the Code of Criminal Procedure. Section 195 of the Cr.P.C. Also specifies the offences, of which, cognizance can be taken by Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Feb 24 00:50:44 IST 2017 R/SCR.A/1427/2017 ORDER the Court only upon a complaint. The term complaint under section 195 of the Cr.P.C. has been interpreted in number of decisions as the one defined under section 2(d) of the Cr.P.C.
In such circumstances, the trial cannot proceed further against the applicant herein. Let me clarify that whatever investigation has been carried out and whatever materials have been collected, will have no bearing with the issue at hand. The investigation cannot be termed as illegal so as to render the materials also inadmissible in evidence.
If the State wants to rectify its mistake, it is always open for it to initiate appropriate proceedings before the court concerned in accordance with law relying on the very same materials which is on record as on date.
Ms.Pathak, the learned APP, at this stage, pointed out something very important. The learned APP pointed out that the prosecution is of the year 2015. The maximum punishment for the alleged offence under the statute is three years. If that be so, then probably the issue with regard to the limitation may arise before the court concerned. If such issue with regard to the limitation arises, the court concerned shall consider the provisions of Section 473 of the Cr.P.C.
I clarify that I do not express any opinion in this regard.
To put it in other words, whether to condone the delay or not will be within the discretion of that particular court.
So far as the offence under the Gujarat Medical Practitioners' Act, 1963, is concerned, the same, on the basis of the record, is not made out because it is not even the case Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Feb 24 00:50:44 IST 2017 R/SCR.A/1427/2017 ORDER of the prosecution that the applicant herein has not been registered as a medical practitioner in accordance with the provisions of the Act.
With the above, this writ-application is allowed. The proceedings of the Criminal Case No.356 of 2015, which is pending as on date in the court of the learned Metropolitan Magistrate, Court No.18, Ahmedabad, are hereby quashed. Rule made absolute to the aforesaid extent. Direct service is permitted.
In view of the above, I am not going into the second submission canvassed by the learned counsel as regards the appropriate authority.
(J.B.PARDIWALA, J.) MOIN Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Feb 24 00:50:44 IST 2017