Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 26 July, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.130/2016 .
Date of decision : 26th July,2019 ____________________________________________________________ Urvashi Fakay and others ... Petitioners.
Versus
State of Himachal Pradesh ...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners : Mr. B.C. Negi, Senior Advocate with Mr. Nitin Thakur, Advocate.
For the Respondent : Mr. Ashwani K. Sharma and Mr. Nand Lal Thakur, Advocate Generals for the State.
Anoop Chitkara, Judge A pygmy proposition has swelled to a monstrous proportion, and the only way to consume a monster is limb by limb.
2. The accused have invoked the inherent powers of this Court, challenging the refusal of Sessions Judge to quash the issuance of process, 1 Whether reporters of Local Papers may be allowed to see the judgment?
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in a complaint filed for violation of Rules 13, 6(6) of Pre-Conception & Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
.
3. This petition under Section 482 of the Code of Criminal Procedure, after now called as CrPC, is directed against the order dated 19.3.2016, passed by learned Sessions Judge, Kullu, District Kullu, HP, in Case Code No.0000017/2015 (Registration No.8/2015), titled as Urvashi Fakay versus State of Himachal Pradesh, whereby the learned Sessions Judge, had dismissed the petition against the order of summoning, dated 24.3.2015, passed by the learned Chief Judicial Magistrate, in the file of Complaint No.41-1/15, wherein he held that sufficient grounds exist to proceed against the accused persons under Rule 13, 6 Clause 6 of PC of Rules framed under Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (from now onwards referred to as "PNDT Act").
4. The accused are members of a family. Petitioner no. 1 is the wife of Petitioner no. 2 Dr. Sunil Fakey, who is a Radiologist and Petitioner no. 3 Dr. Y.C Fakey, is the father-in-law of Petitioner no. 1, and he retired as Chief Medical officer, from the Government of H.P. (Ref: Annexures to the complaint).
5. The State of Himachal Pradesh, through District Appropriate Authority-
cum-Chief Medical Officer, Kullu, filed a complaint in the file of Chief Judicial Magistrate, Kullu, against the present petitioners, for the violation Rule 13 and Rule 6 (6) of the PNDT Act. The complainant alleged that Urvashi ::: Downloaded on - 29/09/2019 01:20:22 :::HCHP ...3...
Fakay, who is petitioner No.1 herein, had applied to District Appropriate Authority, Kullu (After now called DAA), for the registration of Ultrasound .
Clinic, in the name of "FOURTH DIMENSION-An Ultrasound Clinic" at Kullu, H.P. The application was accompanied with the requisite fee and documents. Accordingly, the Chief Medical Officer proposed to inspect the ultrasound machines. On 15.12.2012, the Chief Medical Officer checked the proposed site for ultrasound clinic and observed that two machines that are being intended to be installed were purchased on 25.4.2006 and 21.9.2009 and further noticed that petitioner No.1 Urvashi Fakay had sought permission to transport these machines from Delhi to Kullu. It was observed in this letter that these machines were already in use in Delhi and petitioner No.1 was directed to place on record the registration of the previous installation along with N.O.C.s of Appropriate Authority at Delhi regarding the transportation of machines out of Delhi. It was further mentioned that once these formalities are completed, then the Chief Medical Officer be intimated for the inspection of the machines.
6. Vide letter dated 20.12.2012, petitioner No.1 forwarded the registration certificate of Delhi, to the Chief Medical Officer, stating that the NOC will be handed over within three months. Subsequently vide communication dated 3.1.2013 (Annexure P-5), the Chief Medical Officer informed the petitioner No.1 that in the meeting of the committee, held under the PNDT Act, it was unanimously opined that the NOC be brought from the ::: Downloaded on - 29/09/2019 01:20:22 :::HCHP ...4...
Appropriate Authority. Vide another letter dated 19.3.2013 (Annexure P-6), petitioner No.1 was reminded to submit NOC as stated before. The .
complaint also contained the minutes of the meeting of the District Advisory Committee, under the Act, held on 7.5.2013, in which the issue of registration of the clinic was considered. The minutes contained all the transactions at Delhi, including the mode and manner, in which the machines were involved in a criminal matter at Delhi. After considering all the factual position, the committee advised the Appropriate Authority, Kullu to grant the registration of the said clinic. It was further noticed that on 24.4.2013, the machines were inspected and it was found to be sealed. Accordingly, vide communication dated 13.5.2013 issued by the Chief Medical Officer, Kullu, the clinic was registered. The registration certificate was annexed as in the complaint as Annexure-4. Later on, the requisite declarations were made by petitioner No.1, Urvashi Fakay, vide communications, annexed as Annexure-13 and Annexure-14, with the complaint.
7. On 12.7.2013, the Chief Medical Officer, Kullu, who was the District Appropriate Authority under the Act, sent a notice to petitioner No.1, Urvashi Fakay, in which he stated that the orders of the Court of Metropolitan Magistrate, Rohini are computer-generated documents and these do not bear any signatures or seal of the Court and asked them to supply the certified copies of the order passed by the Delhi Court.
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8. The background of this letter was that these ultrasound machines were taken into custody in FIR No.228/10, registered in Police Station, Ashok .
Vihar, Delhi. It appears that Petitioner No. 2, Dr. Sunil Fakey, is an accused in this FIR, registered in Delhi. During the pendency of the matter, the owner of the ultrasound machines, Dr. Sunil Fakay, had sought the release of the machines on Supurdari, with an undertaking that he shall not use these machines without the permission of the Appropriate Authority under the Act. On 23.8.2012, Dr. Y.C. Fakay, who is petitioner No.3, had requested the Chief Medical Officer-cum-Appropriate Authority under the Act, seeking his permission to transfer the Ultrasound machines from Delhi to Kullu, in this new Center opened by petitioner No.1, Urvashi Fakay.
9. Consequently, vide Communication dated 31.8.2012 (Annexure-16), the District Appropriate Authority-cum-Chief Medical Officer, Kullu, informed petitioner No3, Dr. Y.C. Fakay, to intimate his Office, within one week from the date of delivery of the machines at the said address. Consequently, vide letter dated 6.11.2012 (Annexure-17), petitioner No.3, Dr. Y.C. Fakay informed the Chief Medical Officer that machines have arrived at the above premises on 1.11.2013 and that were lying in packed condition at his garage (Annexure-17). Vide another letter dated 4.5.2013 (Annexure-18), petitioner No.3, Dr. Y.C. Fakay informed the Deputy Commissioner (Revenue), who was the Appropriate Authority under the Act, that the machines had been transported to Kullu. Letter dated 20.8.2013 (Annexure-20), written to ::: Downloaded on - 29/09/2019 01:20:22 :::HCHP ...6...
petitioner No.1, Urvashi Fakay by the Chief Medical Officer, Kullu, stated that the letters sent by the department to LMM (Metropolitan Magistrate) .
Rohini, Delhi- 85, was received back and it indicates that the orders of the Court dated 8.4.2012, are still doubtful. Thus, she was directed to supply the original documents under Sub Clause (b) of Section 17 (A) of the Act. It was also indicated that action would be taken if the documents are found to be fraudulent.
10. Vide letter dated 24.8.2013 (Annexure-21), the District Appropriate Authority-cum-Chief Medical Officer, Kullu directed petitioner No.1, Urvashi Fakay to clarify, whether any case for violation of any provisions of the Act, is pending at Delhi or not. Vide a detailed reply dated 30.8.2013, petitioner No.1, Urvashi Fakay informed the District Appropriate Authority/complainant that the Court of Shri Dharmander Singh passed the order in question, Metropolitan Magistrate, Rohini, Delhi on 8.4.2013 and not on 8.4.2012 in case FIR No.228/10 at Police Station, Ashok Vihar and because of the wrong year, the complainant did not receive any intimation. She further informed the complainant that the case relating to the FIR as mentioned earlier was still subjudice in Rohini Court, Delhi. It was also suggested that the Magistrate vide its order dated 8.4.2013, was pleased to grant the NOC for registration of Ultrasound machine No.A96508300003369 in her favor. Certified copy of the order was also annexed as Annexure-22. Notice dated 11.10.2013, was sent by the complainant to petitioner No.1, Urvashi ::: Downloaded on - 29/09/2019 01:20:22 :::HCHP ...7...
Fakay under section 20 of the Act. After this clarification, the DAA Kullu closed this aspect of the matter.
.
11. Vide an office communication dated 5.10.2013 Annexure-23 (P-2), issued by the Directorate of Health Safety and Regulation Himachal Pradesh to the Chief Medical Officer, Kullu, he was reminded that he has been directed to take action against Petitioner No. 1 Urvashi Fakey, under Section 20 of the Act for violation of Rule 13 of the Rules framed under the Act. Petitioner No.1, Urvashi Fakay, sent a reply to this notice vide Annexure-24, clarifying her position. The complainant vide his letter dated 14.11.2013 (Annexure -25) (P-1), addressed to petitioner No.1, Urvashi Fakay, informed her that she is given an opportunity of being heard and consequently, directed her to attend the meeting on 21.11.2013 at 4:00 pm in his Office. Vide letter dated 2.11.2013 (Annexure 25), the Director, Health Safety & Regulation, Shimla, informed the District Appropriate Authority of violation of Rules while granting registration of the clinic. After that, various communications were exchanged between the complainant and the petitioner No.1, which finally ended up in filing of the complaint in question.
12. The Complainant, District Appropriate Authority-cum-Chief Medical Officer, Kullu sought prosecution of three accused, namely Urvashi Fakay, Dr. Sunil Fakay, and Dr. Y.C. Fakay, for violation of Rule 13 of Rules framed under the Act.
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13. Before, proceeding further, it will be useful to extract Section 20 of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex .
Selection) Act, 1994:-
"20. Cancellation or suspension of registration.-
1. The Appropriate Authority may suo moto, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice.
2. If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be. PNDT Act, 1994 & Amendments 3.
Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is, of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1)."
14. The primarily, a violation is mentioned in Paragraph-6 of the complaint, in which it was stated that on the suspension of registration, the accused ::: Downloaded on - 29/09/2019 01:20:22 :::HCHP ...9...
was directed to deposit the Registration Certificate with the District Appropriate Authority, Kullu, when the registration was canceled on .
14.10.2014 vide Annexure-43 and machines were sealed by the Appropriate Authority. However, the accused failed to do so.
15. This complaint was registered as Complaint No.41-1/15 in the Court of The Chief Judicial Magistrate, Kullu. Vide order dated 24.3.2015, the learned Chief Judicial Magistrate, passed the following order:-
"Office report seen. Complaint be registered. I have perused the complaint and heard complainant. There are sufficient grounds to proceed against the accused persons under Rule 13, 6 Clause 6 of PC and PNDT Act 1994. Let notices be issued to accused persons on 04.05.2015."
16. The accused, who are petitioners herein, challenged this order by filing a criminal revision petition under Section 397 of the Code of Criminal Procedure in the Court of learned Sessions Judge, Kullu. Vide order dated 19.3.2016, the learned Sessions Judge, Kullu, dismissed the revision petition. Now, the petitioners have come up before this Court, seeking quashing of summoning orders as well as an order issued by the Sessions Judge, whereby the revision petition was dismissed.
17. I have heard Mr. B.C. Negi, learned Senior Advocate, for the petitioners and Mr. Ashwani K. Sharma and Mr. Nand Lal Thakur, learned Additional Advocate General, for the State. I have also gone through the complete ::: Downloaded on - 29/09/2019 01:20:22 :::HCHP ...10...
record as well as the judgment dated 6.8.2014, passed by a Division Bench of this Court in CWP no. 2477 of 2014, titled as Dr. Sunil Fakey v. State of .
Himachal Pradesh and others.
18. The Chief Medical Officer, the complainant is alleging violation of Rules 13, Rule 6 (6) of the Act. It would be appropriate to deal firstly with Rule 13 of the Rules framed under PNDT Act, which reads as follows:
Rule 13. Intimation of changes in employees, place or equipment. - Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall intimate every change of employee, place, address and equipment installed, to the Appropriate Authority [at least thirty days in advance of the expected date of such change, and seek reissuance certificate of registration from the Appropriate Authority, with the changes duly incorporated].
19. A perusal of the complaint and its annexures would reveal that the complainant is aggrieved that the transportation of the Ultrasound machines from Delhi to Kullu was in violation of Rule 13 of the Act. However, in the complaint itself, the Certificate of Registration was annexed as Annexure-11, vide which, on 13.5.2013, under Registration No.38, the Clinic was registered. Now, the petitioners had transported the machines under this Certificate. The complainant admits that prior to the transfer of the machines; these US-Made machines were lying ceased in Delhi and were owned by petitioner No2, Dr. Sunil Fakay. The order of Metropolitan Magistrate, permitting the handing over of the machines on Supurdari, was ::: Downloaded on - 29/09/2019 01:20:22 :::HCHP ...11...
placed by petitioner No.1, Urvashi Fakay in the file of complainant and consequently it formed part of the present complaint as Annexure-22. In .
view of this, it cannot be said that there is any violation of Rule 13 of the Act.
The law is well settled that if two views are possible on the set of evidence, then the view in favour of the accused has to be preferred over the view favouring the prosecution/complainant.
20. Coming to the violation of Rule 6(6) of PNDT Act, would reveal that the rule deals with the procedure, certificate of registration and its procedures regarding application, cancellation and change of ownership etc. Rule 6 (6) of PNDT Rules, reads as follows:-
(Certificate of Registration) "The certificate of registration shall be non-transferable. In the event of change of ownership or change of management or on ceasing to function as a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic or Imaging Centre, both copies, of the certificate of registration shall be surrendered to the Appropriate Authority."
21. The notice issued by the complainant was for suspension, and the complainant appears to have wrongly construed it and treated its effect as ceasing to function. The language of rule 6(6) of PNDT Rules, "ceasing to function," is crystal clear. Vide communication dated 13.5.2013 (Annexure-
11), the petitioner No.1 was granted registration by the complainant to run an Ultrasound Clinic. Rule 6 (6) of the PNDT Act states that the Certificate of ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...12...
Registration shall be non-transferable. In the present case, the complaint is that despite the suspension of registration, the Clinic continued to .
work. However, there is no evidence even to this effect. Be that as it may, the language of Rule 6 (6) of the Act is unambiguous that Registration Certificate has to be surrendered in case of Ultrasound clinic ceases to function. The most crucial document in the entire matter is the notice of suspension of Ultrasound Clinic Registration (Annexure-31), which is dated 6.3.2014, issued by the Chief Medical Officer, complainant, to the Petitioner No.1, Urvashi Fakay. The subject of this notice reads as under:-
"Notice of Suspension of Ultrasound Clinic Registration"
The later part of this order reads as follows:-
"Now keeping in view the above circumstances DAC is of the view that since the applicant has violated the mandatory provisions of the Act and has also misled the DAA Kullu, as such all members of committee, are of the opinion that the registration of the clinic granted to the applicant vide registration Certificate No.38 from 13/5/2013 to 12/5/2018 be suspended temporarily till the required provisions are not complied with."
22. Now, the literal meaning of this notice is the suspension of registration, whereas the complaint has been filed for "suspension of registration" and "cease to function." The word 'suspension' has an altogether different meaning from the word 'seizure/ceasing.' ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...13...
23. The Black Law Dictionary defines 'suspension' and 'cease' as follows:-
.
"suspension: the method by which something is suspended, the device by which something is suspended, an imposed temporary withdrawal of a right or privilege, the stoppage of payment of debts because of financial failure.
Cease: to stop, bring to an end, to come to an end, stop."
24. The Andhra Pradesh High Court, in Mahant Narayana Dessjivaru vs. State of Andhra, Hyderabad and others, AIR 1959 Andhra Pradesh 471, also had an occasion to deal with the difference between the suspension and seizure, and the Court went on to say as follows:-
"Sri Subramanyam, learned counsel for the petitioners, invites us to construe the expression "shall cease to be operative" as "shall be suspended". We do not think we can give weight to it. The word "cease" means discontinue or "put an end to." It means that the scheme and the sanad were no longer operative and the rights, if any, accruing therefrom are extinguished. There is no scope for importing any notion of suspension into that expression. Its only import is that they are discontinued once and for all."
25. Thus, the notice was for Suspension of Ultrasound Clinic Registration.
By no stretch of the imagination, the said notice can be read to interpret as 'Cease to exist.' Thus this notice did not violate the rule 6(6) of PNDT Rules.
Therefore no offence is made out.
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26. The penal clauses of PNDT Act are extracted as follows, .
S. 23. Offences and penalties.-
(1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made there under shall be punishable with Act, 1994 & Amendments imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
2. The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.
3. Any person who seeks the aid of a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre- natal diagnostic techniques on any pregnant women for the purposes other than those specified in sub-section (2) of section 4, he shall, be ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...15...
punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand .
rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees.
4. For the removal of doubts, it is hereby provided, that the provisions of sub-section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection.
S. 25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.- Whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
27. Even apart from missing ingredients in the complaint, there is no mensrea or guilty mind of the accused persons. The statues and objects of the Act read as follows:-
"Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 is an Act of the Parliament of India enacted to stop female foeticides and arrest the declining sex ratio in India. The act banned prenatal sex determination.::: Downloaded on - 29/09/2019 01:20:23 :::HCHP
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Every genetic counselling centre, genetic laboratory or genetic clinic engaged in counselling or conducting pre-natal .
diagnostics techniques, like In vitro fertilisation (IVF) with the potential of sex selection (Preimplantation genetic diagnosis) before and after conception comes under purview of the PCPNDT Act and are banned.
An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto."
28. There are no allegations or averments that the petitioners had misused this Clinic in violation of the objects and purposes of the Act. There is no complaint to that effect. There cannot be said to be any mensrea or guilty mind or culpable mental state of mind of any of the petitioners to violate the object or purpose of the Act.
29. All these allegations in the complaint were directed against the Petitioner no. 1 Urvashi Fakey. The accusations against Petitioner no. 3, Dr. Y.C Fakey, are only to the effect that he had sought transportation of ultrasound machines. But that was before the inspection of such machines.
Once the registration certificate had been granted, then there was no role of ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...17...
Petitioner no. 3, Dr. Y.C Fakey. Coming to Dr. Sunil Fakey, the Petitioner no.
2, the only allegations against him are before the transportation, that too .
because he was the owner of the machines. Admittedly, the registration in Kullu is not in his name. He is not a signatory to any of the documents for registration, except that he had consented to the transportation of ultrasound machines from Delhi to Kullu. There is no criminality in any of his acts.
30. There is another aspect of the matter which is obligatory for this Court to mention. Petitioner No.2, Dr. Sunil Fakay, had filed a writ petition, which was registered as CWP No.2477/2014. Vide judgment dated 6.8.2014, a Division Bench of this Court, had dismissed such petition and had made the following observations:-
"11. Petitioner has violated various provisions of the Act. As is evident from the records, his licence was not renewed by the competent authority at Delhi to run the Clinic. He has in very stealthily and clandestine manner transferred the machinery from Delhi to Kullu. A case has been registered against him, which is still pending in the Court of Metropolitan Magistrate, Rohini, Delhi. Merely, that the petitioner's name has been registered with the Delhi Medical Council, will not absolve him from the criminal consequences under the Act. The Act is social welfare legislation. Its provisions are to be enforced strictly and there cannot be any compromise on the same by the individual or any competent authority. It is reiterated that the action of the Chief Medical Officer, Kullu, District Kullu, ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...18...
H.P., to allow the transferring of machinery from Delhi to Kullu on 31.08.2012 and registration of clinic was wholly without .
authority of law. The Chief Medical Officer, Kullu, District Kullu, H.P. has unduly favoured the petitioner's family by permitting the registration of the Clinic and thereafter permitting to transfer of the machinery from Delhi to Kullu. He was remiss in taking the action of his own. It is only after intervention of Director, Health Safety & Regulation, H.P., Shimla that he was forced to take action against these persons. He discharges very important duties under the Act and could not oblivious to the implications of non-enforcement of the Act. He must have known that there is a procedure, the manner in which the machinery could be transferred from Delhi to Kullu. He was supposed to be aware of the provisions of the Act and action warranted. The decision taken by the Chief Medical Officer, Kullu, District Kullu, Himachal Pradesh are very casual. The competent authorities have not in any manner contravened the provisions of the Himachal Pradesh Medical Council Act, 2003 and Delhi, Medical Council Act, 1997 and for that matter the Medical Council Act, 1956. The action has been taken strictly as per the Act.
12. Accordingly, there is no merit in this petition and the same is dismissed. The Principal Secretary (Health), Government of Himachal Pradesh, is directed to hold a disciplinary proceedings into the entire episode, the manner in which the Clinic of petitioner's wife, i.e., 'Fourth Dimension-An Ultrasound Clinic' was granted permission in violation of the mandatory provisions of the Act, including the manner in which ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...19...
the permission was granted by the Chief Medical Officer, Kullu, H.P. to transfer the machinery from Delhi to Kullu vide oder, .
dated 31.08.2012. The disciplinary proceedings shall be concluded within a period of four months from today. The petition stands disposed of, so also the pending application(s), if any. No costs."
31. Aggrieved by this judgment, the petitioner had approached Hon'ble Supreme Court of India in SLP (C) No(s).14856-14857/2015 and vide order order:-
r to dated 11.7.2018, the Hon'ble Supreme Court of India, passed the following "Learned senior counsel appearing on behalf of the petitioners has stated that he wants to agitate the matter in accordance with law. Statement is placed on record.
However, we find no ground to interfere with the impugned order. The Special Leave Petitions are accordingly dismissed. Pending applications, if any, stand disposed of."
32. So far as first and third petitioners are concerned, they were not parties in the above-said writ petition. Therefore, this judgment passed in the writ petition shall not come in their way.
33. Mr. B.C. Negi, learned Senior Counsel, appearing for the petitioners, state that the prayer in the said Writ petition, filed by Petitioner no. 2 Dr. Sunil Fakey, was for violation of Article 21 of the Constitution of India and it was not against the present complaint. To corroborate his averment, he has ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...20...
drawn the attention of this Court to Paragraph-9 of the judgment passed in CWP No.2477 of 2014, titled as Dr. Sunil Fakay vs. State of Himachal .
Pradesh and others, the relevant portion of which, is extracted as below:-
"9. The District Advisory Committee has accorded the permission in its meeting held on 07.05.2013 without due application of mind. It has not ascertained the true position before permitting the petitioner's wife to run the Clinic. There was absolute dereliction of duties by all the functionaries, who attended the District Advisory Committee held on 07.05.2013. The State Government was informed vide letter dated 17.06.2013. It led to holding of meeting of State Appropriate Authority with State Advisory Committee on 27.06.2013. The Director, Health Safety & Regulation, H.P., Shimla, has taken a serious view of the matter and was construed to call upon the Chief Medical Officer, Kullu, District Kullu, H.P. to explain the position under which the machinery has been permitted to be transported out of Delhi and also the granting of permission to run the Clinic at Kullu by the wife of the petitioner. The conduct of the Chief Medical Officer, Kullu, District Kullu, H.P, Shimla in right spirit, which resulted in running of the illegal Clinic of the petitioner's wife in utter violation of the mandatory provisions of the Act. The Director, Health Safety & Regulation, H.P., Shimla has sent an intimation to the Chief Medical Officer, Kullu, District Kullu on 02.07.2013, followed by reminders, dated 14.08.2013, 05.09.2013 and 05.10.2013. It is only after the intervention of the Director, Heal Safety & Regulation, Himachal Pradesh, Shimla that notices were issued to petitioner's wife on 20.08.2013 and 24.08.2013. Ultimately, the ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...21...
notice was issued to petitioner's wife under Section 20 of the Act on 11.10.2013. She was also issued notice on 14.11.2013, .
including notice suspension of Ultrasound Clinic Registration, dated 06.03.2014 and ultimate suspension on 11.03.2014. It is only after the intervention of the Director, Health Safety & Regulation, H.P., Shimla that notices were issued to the petitioner's wife for violation of mandatory provision of the Act on 27.08.2013 and 14.09.2013. It is only due to the sincere efforts made by the Director, Health Safety & Regulations, H.P., Shimla, which led to the issuance of letter, dated 11.03.2014, whereby the licence of Harihar Hospitals Pvt. Ltd., Hathithan, Bhuntar, District Kullu, was suspended temporarily and the petitioner was terminated from the post of Consultant Radiologist w.e.f.
11.03.2014, vide letter, dated 11.03.2014. There is no illegality in the impugned orders, whereby the licence of respondent No.4- Hospital, is temporarily suspended and the petitioner has been restrained from working as Consultant Radiologist w.e.f. 11.03.2014. It is not the petitioner alone, who has violated the mandatory provisions of the Act, but the same have been violated with impunity by his father and wife."
34. Mr. B.C.Negi, Sr. Advocate, appearing for the second Petitioner, Dr. Sunil Fakey, stated that the prayer in the writ petition was with respect to the temporary suspension of the licence of Harihar Hospitals Pvt. Ltd., Hathithan, Bhuntar, District Kullu, which was arraigned as respondent No.4 in the writ petition and the termination of the accused/petitioner was from the post of Consultant Radiologist w.e.f. 11.3.2014 with respondent No.4 ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...22...
hospital. As is also apparent from Paragraph-10 of the writ petition so filed under Article 226 of the Constitution of India, that the right to livelihood was .
being affected by those orders.
35. After going through the entire judgment passed in the writ as mentioned earlier, coupled with the complaint as the whole and its annexures, the findings in the writ petition shall not apply in the present petition, which is against the summoning of Petitioner no. 2, Dr. Sunil Fakey and other accused. r
36. Regarding Dr. Sunil Fakay, petitioner No.2, he had not applied for the licence to run a Clinic at Kullu. He was not signatory to any of the documents. It was his wife, petitioner No.1, who sought registration to run the Ultrasound Clinic at Kullu. The permission to transfer the machines was given to his father, Dr. Y.C. Fakay, petitioner No.3. The role of Dr. Sunil Fakay, petitioner No.2 was that he was the owner of U.S.A made Ultrasound machines.
37. As already mentioned above, there is no role of the second petitioner, Dr. Sunil Fakey, as far as application and proceedings in Himachal Pradesh, are concerned. Therefore, the prosecution failed to fasten any criminal liability upon him. I am of the considered opinion that the judgment passed in CWP No.2477/2014, shall not come in the way of this Court to quash the order of summoning against the petitioner.
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JUDICIAL PRECEDENTS ON JURISPRUDENCE OF QUASHING:
38. In M/s Pepsi Foods Ltd v. Special Judicial Magistrate, (1998) 5 SCC .
749, a Division Bench of Hon'ble Supreme Court observed as under -
"26. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
27. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...24...
cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the .
proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial..."
39. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, a three Judges Bench of Hon'ble Supreme Court observed as under:-
"6. .... ... ...It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...25...
would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases .
under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such case, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...26...
accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. .
561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide : In Re:
Shripad G. Chandavarkar, AIR 1928 Bom 184, Jagat Chandra Mozumdar v. Queen Empress, ILR 26 Cal 786, Dr. Shankar Singh v. State of Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Roy v. Gobina Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. Sivarama Subramania, ILR 47 Mad 722 : (AIR 1925 Mad 39)."
40. In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, 1988 (1) SCC 692, a three judges bench of the Hon'ble Supreme Court holds:-
"7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."::: Downloaded on - 29/09/2019 01:20:23 :::HCHP
...27...
.
41. In Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. vs. State of Gujarat & anr., Criminal Appeal No. 1723 of 2017, decided on 4.10.2017, a Three Judges Bench of Hon'ble Supreme Court, laid down the broad principles for quashing of FIR, which are reproduced as follows:
"15. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :
(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP ...28...
the ends of justice would justify the exercise of the inherent power;
.
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
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(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar .
transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
42. Given the above analysis, the complaint is based on assumptions and lacks substance. Thus the accused must get the benefit of the doubt.
43. The issuance of the process, in this case, is an abuse of the process of the law. This Court cannot shy away in exercising its jurisdiction under section 482 CrPC, which is devised to advance the substantive justice.
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44. Consequently, this petition is allowed and the order dated 19.3.2016, passed by learned Sessions Judge, Kullu, District Kullu, H.P., in Case Code .
No.0000017/2015 (Registration No.8/2015), titled as Urvashi Fakay and others versus State of Himachal Pradesh, is quashed and set aside.
Consequently, the order of summoning, dated 24.03.2015, passed by the learned Chief Judicial Magistrate, in Complaint No.41-1/15, as well as the complaint is quashed. All consequential proceedings are also quashed.
All pending application(s), if any, also stand disposed of.
(Anoop Chitkara), Judge.
26th July, 2019(KS) ::: Downloaded on - 29/09/2019 01:20:23 :::HCHP