Madhya Pradesh High Court
Dr. Dinesh Agrawal vs The State Of Madhya Pradesh on 23 April, 2019
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.7723/2019
Smt. Sudha Shrivastava, learned counsel for the
applicant.
Shri Vinit Hardia, learned Public Prosecutor for the
respondent/State.
ORDER
( 23/04/2019) The applicant has invoked extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (in short the Cr.P.C) for seeking quashment of order dated 07.02.2019 passed by Special Judge, Badwani in Cr. R. No.9/2019 whereby the learned judge upheld the order dated 03.12.2018 and 28.12.2018 passed by learned Judicial Magistrate First Class, Badwani in criminal case No.211/2014 wherein the charge under Section 23 of Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (hereinafter referred to as P.C. & P.N.D.T. Act) is directed to frame against the applicant. (2). The brief facts of the case are that the applicant Dr. Dinesh Agrawal is a qualified medical practitioner he also obtained diploma in Gynecology and obstertrics. He is working in sonography center at Sharma Multiple 2 clinic, Motibag square, Sendhwa. On 12.01.2012 a surprise inspection was conducted by Tehsildar / Executive Magistrate Sendhwa and found that the applicant was operating sonography machine without obtaining any license. The said machine was seized and a Panchanama was prepared by the Tehsildar. The copy of the inspection report and information was sent to the Chief Medical Officer, Badwani and District Collector Badwani. Thereafter on the direction given by the District Collector, the chief Medical Officer, Badwani filed a complaint against the applicant for the offence under Section 23 and 25 of the PC and PNDT Act, before the court of J.M.F.C. Sendhwa, who has taken the cognizance against the applicant for the offence punishable under Section 18, 23, and 25. After appearance of the applicant/accused, the Judicial Magistrate First Class has recorded the evidence before charge. Then applicant moved an application for discharging him from the aforesaid offence, however the said application was dismissed by order dated 03.12.2018 and on the basis of material available on record the trial court vide order dated 28.12.2018 has framed charges against the applicant for the offence under Section 23 of PC and PNDT Act. The said order was challenged before the Sessions Court in revision 3 bearing No.09/2019 but the same has also been rejected vide order dated 07.02.2019. This order is subject matter of challenge before this Court. (3). Learned counsel for the applicant referring the provision of Section 28 of PC and PNDT Act put forth that the cognizance of the offence can be taken by the Court on a complaint made by the appropriate authority concerned or any officer authorized in this behalf by the Central or State Governments as the case may be and if the complaint has not been filed by the appropriate authority then it will not be maintainable. In the present case, the complaint has been filed by A.K.Mehta Chief Medical Officer, who has not been appointed as appropriate authority for purpose of filing complaint in District Badwani under Section 28 of the Act. It is further submitted that there is no averments made in the complaint that what irregularities were found during the inspection. The courts below have not considered the aforesaid legal position and committed error in framing the charge against the applicant. (4). Learned counsel for the respondent/State has opposed the prayer made by the applicant by contending that officer nominated by collector for the purpose of monitoring can file private complaint and in the present case, District Collector Badwani authorized 4 Mr. A.K. Mehta, Chief Medical Officer, Badwani and this complaint filed by Mr. A.K. Mehta, Chief Medical Officer is maintainable, therefore the trial court has rightly took the cognizance and framed the charges against the applicant.
(5). Having considered the submission made by the learned counsel for the parties and perused the record. (6). Before adverting to rival contentions of the parties, it is relevant to looked into the provisions and rules of the Act. Chapter 5 and Section 17 of the PC and PNDT Act specifies the Appropriate Authority and Advisory Committee. Chapter 7 relates to offences and penalties wherein Section 28 deals the issue how the cognizance of offences under the Act may be taken by the Court. For the purpose of the present case, the aforesaid provisions are relevant, therefore, the relevant extract of the provision of PC and PNDT Act is reproduced as thus:
17. Appropriate Authority and Advisory Committee.--
(1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the 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.
(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 5 and Family Welfare--Chairperson;
(ii) an eminent woman representing women's organisation; 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 multi-member 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 the 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 Counselling Centre, Genetic Laboratory or Genetic Clinic;
(b) to enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory and Genetic Clinic;
(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 Board 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 amongest gynaecologists, obstericians, 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 one shall be 6 from amongst representatives of women's organisations. (7) XXXXXXXXXXXX (8). XXXXXXXXXXXX (7). Section 28 of the PC & PNDT Act specifies that how the cognizance of the offence may be taken, however its language is relevant, which is reproduced as under:-
" 28. Cognizance of Offence-(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 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 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."
(8). The Rules has also been framed which are known as Pre-conception and Pre-Natal Diagnostic Techniquies (Prohibition of Sex Selection) Rules, 1996 (hereinafter referred as the Rule of 1996). The said rule specifies the procedure regarding registration of the Genetic Counselling Centres, Genetic Laboratires and Genetic Clincs, registration of machines, its sale purchase, validity and renewal of registration. It further specifies 7 how the record can be maintained and preserved and the circumstances in which pre-natal diagnostic may be made. It further clarifies the procedure for search and seizure by the appropriate authoirty or the officer authorized etc. Thus, either under the PC & PNDT Act or Rules, it has not been clarifeid that who shall be the appropriate authority for the purpose of Section 28 of the Adhiniyam. On the basis of the material availabel on record, it reveals that the State Government thourgh public Health and Family Welfare Department, Bhopal by a notification dated 4th April, 2007 appointed the District Magistrate, Badwani as appropriate authority in exercise of the powers, conferred under Section 17 (2) (3) (b) of the Adhiniyam. The said notification is relevant however, it is reproduced as under:-
yksd LokLF; ,oa ifjokj dY;k.k foHkkx ea=ky;] oYyHk Hkou] Hkksiky Hkksiky] fnukad 4 viSzy] 2007 Ø-,Q&10&63&2001&l=g&esfM&2-&bl foHkkx ds vkns'k Øekad ,Q&10&63&2001&l=g&esfM&2] fnukad 11 tqykbZ 2001 dks vfrf"Br djrs gq,] jkT; 'kklu] ,rn~ }kjk Hkzq.k fyax irk djus ds fy;s xHkZ/kkj.k iwoZ ,oa izlo iwoZ funku rduhd dk nq:i;ksx jksdus ,oa blds vkSafpR;iw.kZ iz;kstuksa ds fy;s mi;ksx dks fofu;fer djus ds mn~ns'; dks /;ku esa j[krs gq,] Hkkjr ljdkj] LokLF; ,oa ifjokj dY;k.k ea=ky; ds i= Ø- 24026&111&06 fnukad 12 Qjojh 2007 esa fn;s x;s funsZ'kks ds ikyu esa xHkZ/kkj.k iwoZ ,oa izlo iwoZ funku rduhd vf/kfu;e] 1994 dh dafMdk 17 dh midafMdk 2]3 ¼c½ ds rgr ftyk Lrj ij ftyk eftLVsªV dks mudh vf/kdkfjrk ds ftys ds fy;s l{ke izkf/kdkjh ¼,izksfiz;sV vf/kdkjh½ fu;qDr djrk gSA 8 ftyk eftLVsªV xHkZ/kkj.k iwoZ ,oa izlo iwoZ funku rduhd vf/kfu;e] 1994 ds fØ;kUo;u dh ekfuVfjax esa lg;ksx gsrq ;fn vko';d le>s rks muds v/khu dk;Zjr fdlh ,DthD;wfVo eftLVsªV dks ukeafdr dj ldsaxsA e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj ,- ds- JhokLro] milfpo (9) From perusal of the rules, it is apparent that section 17 of PC and PNDT Act deals with appropriate authority and advisory committee. In the present case vide notification dated 04.04.2007 published in Rajpatra, the State Government through Public Helath and Welfare Department Bhopal appointed District Magistrate, Badwani in exercise of the power conferred under Section 17 (2) (3) (B) of the Act. By the above notification the District Magistrate also empowered to nominate one Executive Magistrate for monitoring of the provision of the Act. Section 28 of the Act deals the issue taking cognizance by court on a complaint made by the appropriate authority concerned as per Section 17 (3) (A) or any officer authorized in this behalf by the Central Government or the State Government as the case may be or the appropriate authority as specified in Section 17 (3) (b) of PC & PNDT Act. Mr. A.K. Mehta was authorized by the District Magistrate (District Collector) Badwani to file complaint against the applicant. Earlier also the applicant challenged his compitency by filing an application under 9 Section 482 of Cr.P.C. bearing M.Cr.C.No.6700/2014, which was dismissed vide order dated 16.12.2014 by holding "that the Collector being designated as appropriate authority under the Act had power to file such complaint whether such complaint is true or baseless can be determined by the Magistrate after the trial. At this stage, it cannot be inferred that there is an abuse of law which wants interference by this Court using the extraordinary power conferred on its under Section 482 of Cr.P.C.,"
(10). In the context of the aforesaid order passed by this Court dated 16.12.2014, this court is of the view that applicant has not filed copy of statement of the witnesses recorded before framing of charge in which the question regarding maintainability of the complaint has been raised and it was not sufficiently explained, therefore at this stage, it cannot be said that Mr. A.K. Mehta is not competent to file complaint before the Court, this question can be decided by the trial court after recording the evidence and passing the judgment on merit. therefore, no inteference is warranted with the order of trial court by which charge has been framed against the applicant. Accordingly, petition is dismissed.
(S. K. Awasthi) Judge PRAVEEN KUMAR Digitally signed by PRAVEEN KUMAR NAYAK DN: c=IN, o=DISTRICT AND SESSION COURT INDOR, postalCode=452005, st=Madhya Pradesh, NAYAK 2.5.4.20=e98f729464903facdd39c454715d6eccc5a350c9111fb01 9b34dace6d05b8fd5, cn=PRAVEEN KUMAR NAYAK Date: 2019.04.29 10:53:13 -07'00'