Delhi District Court
Cr No. 4/2014 vs State on 2 July, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
1. CR No. 4/2014
Urvashi Fakay
W/o Dr. Sunil Fakay
R/o Lower Parganu
P. O. Bhunter, Distt.: Kullu, H. P.
2. CR No. 5/2014
Dr. Sunil Fakay
S/o Dr. Y. C. Fakay
R/o Lower Parganu
P. O. Bhunter, Distt.: Kullu, H. P.
...... Revisionists
VERSUS
1. State
2. Beti Bachao Samiti
123, Kharkhari Nahar, Najafgarh, New Delhi
(through its Secretary Sh. Subhash Kumar Sharma)
......... Respondents
02.07.2014
O R D E R:
Present: Sh. Satya Prakash and Sh. Amit Rathore, Advocates for the revisionists.
Addl. PP for the State with Sh. Mohit Aggarwal, Advocate, proxy for Sh. Pradeep Rana, Advocate for the Respondent. CR No. 4/14 Urvashi Fakay Vs. State. Page 1 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
(1) Vide this combined order, I propose to dispose off both the above revisions petitions filed against the impugned (combined) order of Ld. CMM dated 25.11.2013 disposing off the applications filed by the revisionists Urvashi Fakay and Dr. Sunil Fakay under Section 210 Cr.PC and 239 Cr.PC. (2) Brief facts necessary for disposal of the revision petitions are are that a NonGovernment Origination namely Beti Bachao Samiti (herein after 'Samiti') filed complaint dated 07.07.2010 before the Deputy Commissioner NorthWest District being appropriate authority under the provisions of Prenatal Diagnostic Techniques (regulations and prevention of misuse) Act (in short PNDT Act) and Medical Termination of Pregnancy Act against the accused. The said complaint culminated into registration of FIR No. 228/10 dated 17.08.2010 at Police Station Ashok Vihar. Simultaneously, the above said Samiti filed a separate complaint vide CC No. 725/1/10 before the CMM on the same set of facts on 30.07.2010.
(3) In the above mentioned State case, a chargesheet under Section 23 of PNDT Act [should be The Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994, in short 'The PC & PNDT Act'] was filed on 26.10.2012 and ultimately cognizance was taken by the Ld. Magistrate vide order dated 11.01.2013 and the accused persons namely Dr. Sunil Fakey and Dr. Urvashi Fakey were summoned. While on the other hand, the complaint case vide CC No. 725/1/10 was taken up for consideration on 02.08.2010 and vide order dated 17.08.2010, the same was CR No. 4/14 Urvashi Fakay Vs. State. Page 2 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
fixed for presummoning evidence of the complainant. (4) Initially both the complaints were going on separately but later on pointing out by the court both the complainants were connected and from the subsequent dates both were taken up simultaneously. Thereafter, an application for discharge was filed on behalf of the accused in the State case on various grounds both legal and technical. It was alleged that the prosecution has not been initiated as per provisions of the PC & PNDT Act as described in Section 28 of the said Act and the cognizance could only be taken for the said offence under Section 23 of the PC & PNDT Act on a complaint filed by the appropriate authority or any other person mentioned in Section 28 of PNDT Act but since there was no such complaint at the time of cognizance, the cognizance taken was bad in law. (5) Reference was also made to the provisions of Section 28 of PC & PNDT Act and Section 210 of Cr.PC and in the light of the authorities relied upon by the Ld. Counsels, Ld. CMM disposed off the said applications while observing that the case bearing FIR No. 228/10 stands merged / clubbed with the complaint case No. 725/1/1 and cognizance was stated to be taken on 17.8.2010 and the revisionists before this court shall be treated to have been summoned vide order dated 11.01.2013 and the case would henceforth proceed as warrant trial case like complaint case under Section 23 of the PC & PNDT Act. It was also observed that since the complainant was not a public servant, the matter shall be proceeded after recording precharge CR No. 4/14 Urvashi Fakay Vs. State. Page 3 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
evidence and hence the question of discharging the accused at this stage does not arise.
(6) Now the aforesaid impugned order has been challenged by the revisionists before this court on various grounds which are not being repeated here for the sake of brevity. It is alleged that the judgments so relied upon by the Ld. CMM in the case of C. Muniappan & Ors. Vs. State of Tamil Nadu reported in 2010 (9) SCC 567, Purshottam Jethanand Vs. State of Kutch reported in AIR 1954 SC 700 and Court of its Own Motion Vs. State & Others, reported in 2012 (3) JCC 1743, are bad in law as the said law would not apply to the facts of the present case when the procedures are specially provided under the special law. It is also argued that the reliance of the Ld. CMM on the judgment of Sellamuthu and Senthil Kumar Vs. State by the Inspector of Police, reported in 2012 (1) RCR (Cril.) 185, is unfounded. It is argued that the the trial which is being conducted before the Ld. CMM is without jurisdiction abnitio as the complaint is itself by a person not duly authorized.
(7) No reply to the revision petitions are filed by the respondents before this court and they have preferred to argue on the grounds raised. (8) I have considered the rival contentions and the submissions made before me. I have also gone through the Trial Court record and also the relevant provisions of the PNDT Act and Cr.PC. At the very outset, I may observe that in so far as the provisions of Section 28 of PNDT Act is CR No. 4/14 Urvashi Fakay Vs. State. Page 4 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
concerned, it provides for the modes in which the complaint has to be filed pursuant to which the cognizance can be taken by a court, which provisions are as under :
Section 28 of PNDT act: 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 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 this court.
(2) No court other than that of a Metropolitan Magistrate or a judicial Magistrate of the first class shall try and 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.
(9) Now coming to the provisions of Section 210 of Cr.P.C, which provides as under:
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a CR No. 4/14 Urvashi Fakay Vs. State. Page 5 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him that an investigation by the police is in progress in relation to the offence which is the subjectmatter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigation police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
(10) Ld. CMM while disposing off the various objections raised on behalf of the revisionists vide order dated 25.11.2013 has elaborately dealt with the issues raised before him which issues have also now been agitated before me and I reproduce the relevant portion of the order of the Ld. CMM as under:
CR No. 4/14 Urvashi Fakay Vs. State. Page 6 of 22
CR No. 5/14 Dr. Sunil Fakay Vs. State.
".......... It is basic argument of the counsel for accused that since cognizance in case FIR No. 228/10 has been taken only on a police report, no charges can be framed. On the other hand, it is argued on behalf of complainant and the State that objection taken by accused is technical in nature and since complaint case filed by competent person as per section 28 of the PC & PNDT Act was already there before the date of cognizance in State case, both the cases may be clubbed and charges may be framed accordingly.
During course of arguments, a reference has been made to five judgments of different superior courts, which are being discussed herein for better appreciation of the issue before us. The first judgment of Hon'ble Supreme Court in C. Munniappan Case (supra) deals with a situation in which cognizance was taken and charge was framed by the magistrate u/s 188 IPC in absence of a complaint made by a public servant as per requirement of section 195 Cr.P.C. It has been observed by Hon'ble Supreme Court that it was not permissible for the trial court to frame a charge. However, it was also observed that the court was not agreed with the submissions that absence of a complaint u/s 195 Cr.P.C falsified the genesis of the prosecution case or that it was fatal for the entire prosecution case.
In its second judgment in State of Bihar vs. Murad Ali referred above, while discussing the scope of section 210 Cr.P.C, it has been observed by Hon'ble Supreme Court that where cognizance can be taken only in one way and that on the complaint of a particular statutory functionary, there was no scope CR No. 4/14 Urvashi Fakay Vs. State. Page 7 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
or occasion for taking cognizance more than once and accordingly section 210 Cr.P.C had no role to play.
The third judgment referred before me is judgment of Hon'ble Punjab and Haryana High Court in Preetinder Kaur's case (supra). In the said judgment Hon'ble High Court has discussed the issue as to who can file a complaint in terms of section 28 of the PNDT act.
The fourth judgment is judgment of Hon'ble Delhi High Court in 2012 (6) LRC 312 (Delhi). In the said case cognizance was taken by the magistrate in respect of offence u/s 186 IPC on a police report and not on the complaint which was already there on record. The trial court was directed to reconsider the order of cognizance for offence u/s 186 IPC and rectify the same.
The last judgment is the judgment of Hon'ble High Court of Madras in 2012 (1) RCR (CRL) 185. In the said judgment while dealing with legality of the order regarding taking of cognizance, it has been observed in reference to the different judgments of Hon'ble Supreme Court that if the law is, pure and simple, one dealing with procedure regulating the trial of the case, unless it is shown to the court that by the violation of the said procedure, prejudice has been caused or prejudice is imminent, it can not be held that there is violation of article 21 of the Constitution. With a reference to judgment of Hon'ble Supreme Court in AIR 1954 SC 700, it was observed by the Hon'ble High Court that though as on the date when cognizance was taken on the police report, the magistrate was not empowered to take cognizance on such police reports, such irregularity shall not vitiate CR No. 4/14 Urvashi Fakay Vs. State. Page 8 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
the entire proceedings.
If facts of present case are analised in light of the ratio of the above referred judgments, few things shall emerge. The complainant Beti Bachao Samiti filed different complaints with different authorities including the complaint dt. 07.07.2010 addressed to Deputy Commissioner NorthWest District being appropriate authority. In the said complaint, request was made to file a complaint before the magistrate in terms of section 28 of the PNDT Act. In the said complaint, the complainant made it clear that the same be treated as their intention to take appropriate action against the above named culprits in accordance with provisions of law. It is also clear from the endorsement on the said complaint that the said complaint was received in the office of appropriate authority on 07.07.2010 itself. The present FIR has been registered on 17.08.2010. Clearly, no FIR was registered within 15 days of the filing of said complaint by the complainant with the appropriate authority. In terms of section 28 (1) clause (b), the complainant had become competent to file a complaint after expiry of 15 days after 07.07.2010. The complainant filed a complaint vide CC No. 725/1/10 before CMM on 30.07.2010 on the same set of facts as described in complaint dt. 07.07.2010. Copies of all the relevant complainants including complaint dt. 07.07.2010 is also available on record of said complaint case. It is clear that said complaint has been filed by a competent person in terms of section 28 of PNDT Act.
CR No. 4/14 Urvashi Fakay Vs. State. Page 9 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
The present dispute regarding illegality or irregularity of the cognizance has arisen due to the reason that both the State case as well as the complaint case were going on two separate tracks though before the same court. The FIR was registered on 17.08.2010 and chargesheet was filed by the police on 26.10.2012. By that time, the complaint case remained fixed for presummoning evidence from 17.08.2010 to 30.03.2013 when CE was closed. It was only on 20.05.2013 when both the matters were taken up simultaneously by this court. Clearly, the complaint case was not before the Ld. Predecessor on 11.01.2013 when cognizance in the State case was taken but a complaint filed by the competent person was very much pending before this court. It has been observed by Hon'ble Supreme Court as discussed above that taking of cognizance in absence of a complaint can be taken only as irregularity and the whole prosecution does not vitiate. If the ratio of judgment of Hon'ble Delhi High Court in 2012 (6) LRC 312 (DL) is applied to the facts and circumstances of case, it can be said that cognizance should have been taken on the complaint case and not on the State case in isolation but this could not happen as both the cases were not put before the MM on 11.01.2013. So far as complaint case is concerned, the same was fixed for presummoning evidence vide order dt. 17.08.2010 and impliedly cognizance was taken by the court in the complaint case also on 17.08.2010. Now, since, cognizance had already been taken in the complaint case vide order dt. 17.08.2010, the summoning order dt. 11.01.2013 can be read in CR No. 4/14 Urvashi Fakay Vs. State. Page 10 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
reference to the said order dt. 17.08.2010 for the sake of meeting the ends of justice. It is well settled law that technicalities of law must not come in the way of substantive justice as laid down by different superior courts from time to time. It is not the case that there was no complaint before the court at the time of taking cognizance in State case, rather there was a duly filed complaint case pending before the court on same set of facts and if the said complaint case was brought to the notice of court at that time, appropriate order could have been passed after taking into consideration both the matters.
The irregularity in the order dt. 11.01.2013 due to absence of complaint before the court for the purpose of taking cognizance is a curable defect. While referring to judgment of Hon'ble Delhi High Court in 2012 (6) LRC 312 (DL), the ld. Counsel for accused has himself submitted that such a defect is curable defect and the same can be rectified by calling a complaint from the competent person, however he further submitted that this defect can not be cured in the present case due to bar of limitation as a period of more than three years has already lapsed and if a fresh complaint is called in terms of section 28 of PNDT act the same would be time barred. In this regard, it is to be observed, as discussed earlier also, that a complaint filed by a competent person as per provisions of section 28 of PNDT Act is already pending before this court. Not only a complaint is there since the year 2010, cognizance has also been taken in the said complaint case in the year 2010 itself. If the complaint case is merged with the state case, there would be no question of bar of limitation. CR No. 4/14 Urvashi Fakay Vs. State. Page 11 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
Such merger/clubbing shall not be u/s 210 Cr.P.C as it is not a case where the investigation was pending at the time when the matter was brought to the notice of court as contemplated in section 210 Cr.P.C.
Moreover, the Hon'ble Supreme Court has also categorically observed in State of Bihar vs. Murad Ali (supra) that where cognizance can be taken only in one way i.e on the complaint of a particular statutory functionary then section 210 Cr.P.C has no role to play. Such merger/clubbing will be covered by the provisions of section 202 Cr.P.C which deals with inquiry / investigation by police before issuance of process / summons in a complaint case. The final report filed by IO in FIR No. 228/10 shall become part of the complaint case as an inquiry report within the ambit of section 202 Cr.P.C as presummoning evidence was already complete on the date of filing of the said final report and no other witness has been examined by the complainant thereafter till 30.03.2013 when the presummoning evidence was formally closed. The cognizance on the allegation leveled by the complainant, both in the complaint dt. 07.07.2010 sent to the appropriate authority and the complaint filed before the CMM shall relate back to 17.08.2010 when the complaint case was fixed for presummoning evidence. Similarly, the summoning order dt. 11.01.2013 which has been infact passed in state case would also be treated as a summoning order in the complaint case and no separate or fresh summoning order is required.
The present act i.e PC & PNDT Act has been enacted with an object to prohibit the prenatal CR No. 4/14 Urvashi Fakay Vs. State. Page 12 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
diagnostic techniques for sex determination of foetus so that the menace of female foeticide can be curbed. To meet the objective behind the enactment of said law, the technicalities must not come in the way of its implementation and the objectives must not be defeated on technical grounds. In my opinion, if both the matters are proceeded further as per above mentioned arrangement then there is no likelyhood of causing any prejudice to any of the parties or failure of justice in any sense.
In view of above discussion, it is ordered that the state case vide FIR No. 228/10 P.S. Ashok Vihar stands merged/clubbed with complaint case no. 725/1/10. The cognizance shall be treated to have been taken on 17.08.2010 and accused persons shall be treated to have been summoned vide order dt.
11.01.2013. Since, only the offences under The PC & PNDT Act are involved, the above mentioned matters shall now be proceeded further as a warrant trial case instituted otherwise than on a police report i.e like a complaint case u/s 23 of the PC & PNDT Act. Since, the complainant is not a public servant the matter shall be proceeded after recording precharge evidence. Since, precharge evidence is yet to be recorded, there does not arise any question of discharging the accused at this stage."
(11) The expression 'Cognizance' merely means 'become aware of' and when used with reference to a Court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a Court or a Magistrate CR No. 4/14 Urvashi Fakay Vs. State. Page 13 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
takes judicial notice of an offence with a view to initiate proceedings in respect of such offences said to have been committed by someone [S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. reported in 2008 Crl.L.J. 1636 (1639) SC].
(12) Before it can be said that any Magistrate has taken cognizance of an offence under Section 190 (1) (a) Cr.P.C. he must not only have applied his mind to the contents of the petition, but he must have done so for the purposes of proceeding in a particular way as indicated in the subsequent provisions of Chapter proceeding under Section 202 Cr.P.C. and thereafter sending it for inquiry and report under Section 202. [R.R. Chari Vs. State of UP reported in AIE 1951 SC 207; Jamuna Singh Vs. Bhadai Sah reported in AIR 1964 SC 1541 and Devarapalli Lakshminarayana Reddy Vs. Narayana Reddy reported in AIR 1976 SC 1672]. (13) I may further observe that initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the Section 190 (1) Cr.P.C. as under:
1. in respect of noncognizable offences on the complaint of an aggrieved person;
2. on the police report in the case of a cognizable offence when the Police have completed their investigation and come to the Magistrate for the issue of a process;CR No. 4/14 Urvashi Fakay Vs. State. Page 14 of 22
CR No. 5/14 Dr. Sunil Fakay Vs. State.
3. when the Magistrate himself takes notice of an offence and issues the process.
(14) Hence, it is writ large that the moment the Court of Ld. MM receives a complaint and applies his mind to the same and decide to proceed in a particular manner as provided under Section 200 Cr.P.C. or under Section 202 Cr.P.C. he is deemed to have taken the cognizance, for the ball is in the Court of Law and then it is solely for the Court of Law to proceed in the manner prescribed under law. I may observe that cognizance is always taken of the offence and not of the complaint or the offender as is being argued, Even if there are multiple complaints or reports before the Court as regards the same offence, the date on which the Competent Court first applies its mind to proceed in a particular way as indicated in the subsequent provisions of Chapters XIV and XV of Cr.P.C. he is deemed to have taken cognizance.
(15) A court on perusal of complaint if satisfied that complaint discloses commission of offence and proceeds further is deemed to have taken cognizance and the words ' cognizance taken, need not be mentioned in the order. In this regard the Hon'ble Supreme Court in the case of CREF Finance Ltd. Vs. Shree Shanthi Homes Pvt. Ltd. reported in AIR 2005 Supreme Court 4284 observed as under:
".......... The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses CR No. 4/14 Urvashi Fakay Vs. State. Page 15 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. That words 'cognizance taken' are not found in the order would not make any difference. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It any also be that having considered the complaint, the Court may consider it appropriate to send the complaint to police for investigation under S. 156(3) of the Code. There may be situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that Court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such CR No. 4/14 Urvashi Fakay Vs. State. Page 16 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry......"
(16) It is writ large from the aforesaid that the Ld. CMM has based his observations on the basis of sound judicial reasoning. The provisions of Section 28 of PNDT Act provide for two modes of complaint first by appropriate authority concerned or any other officer authorized on behalf of the Government and second by 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 complain to the court. (17) In the present case the complainant in terms of the provisions of Section 28 of PNDT Act had written to the appropriate authority (i.e. Deputy CommissionerNW) under the PNDT Act on 7.7.2010 specifically stating and making clear his intentions of taking action against the culprits. After this complaint was received by the appropriate authority an FIR was registered against the revisionist on 17.8.2010 which was much after 15 days of the complaint being written to the appropriate authority and hence in terms of the provisions of Section 28 (1) (b) and the complainant filed the complaint in the Court on 30.7.2010 which he was competent to do under law [Section 28 (1) (b)] after 15 days of 7.7.2010. While this case was already pending for presummoning evidence which means that cognizance CR No. 4/14 Urvashi Fakay Vs. State. Page 17 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
on complaint had been taken, the charge sheet in the FIR registered on 17.8.2010 was filed and the Ld. MM being unaware that the charge sheet related to the same complaint which was pending before him for pre summoning evidence, took cognizance of the offences invoked in the same. (18) In the present case, the initial cognizance taken by the Ld. CMM was on a complaint under Section 28 (1) (b) and later the police complaint was also filed. Where then is the illegality? Technically and legally any illegality committed stands cured by the subsequent police complaint which is on the basis of the complaint by the competent authority and I find no illegality in the findings of the Ld. CMM vide order dated 11.01.2013. The Ld. CMM has observed that the irregularity in the order dated 11.01.2013 due to absence of complaint before the court for the purpose of taking cognizance is a curable defect and can be rectified by calling a complaint from the competent person. The cognizance i.e. notice of the offence allegedly committed by the revisionists was taken judicially by the Ld. MM in the year 2010 on the said complaint filed by the complainant before the Ld. MM when the Ld. Magistrate decided to proceed further and listed the case for presummoning evidence and hence in this background the question of limitation does not arise. It is settled law that the merger/ clubbing of a complaint filed in the Court and the final Report by the police would be covered by the provisions of Section 202 Cr.PC which deals with the inquiry by the police before issuance of summons in the complaint case and CR No. 4/14 Urvashi Fakay Vs. State. Page 18 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
hence under the given circumstances the final report filed by the Investigating Officer becomes a part of the complaint case as an Inquiry Report as contemplated under the provisions of Section 202 Cr.PC. I find no illegality in the order of the Ld. Trial Court holding that since pre summoning evidence has been completed and no other evidence being summoned by the complainant till 30.3.2013 when the presummoning evidence was formally closed, the case in hand was to be treated as Warrant Trial case wherein the precharge evidence is yet to be recorded. (19) I may observe that as a part of the National Policy, this court is required to come down heavily on those involved into illegal acts relating to female feticide. These acts relating to female feticide are committed in strict secrecy wherein both the wrong doers i.e. family including the women who indulge into female fetus and the doctors have joint interests in maintaining secrecy. Where then can be a question of direct evidence? In the present case Respondent No. 2 i.e. the NGO Beti Bachao Samiti had carried out sting operation CD of which is already on record. Whether the contents of the complaint and of the CD are correct or not and what is the evidentiary value which may be attached to the same and its authenticity, are issues which are yet to be adjudicated upon by the Ld. Trial Court. This court cannot and will not take a hypertechnical view so as to come in the way of bringing the wrong doers to book. Merely because the competent authorities choose to look the other way or are not diligent in doing what they ought to be doing in CR No. 4/14 Urvashi Fakay Vs. State. Page 19 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
the matter, it does not mean that the benefit of the same should go to the accused.
(20) If we look at the figures of sex ratio in India, according to the 2011 Census, the number of girls stands at 940 which is a marginal increase from 933 in 2001. Haryana has the lowest sex ratio among the states while Kerala remains at the top with the highest sex ratio. In the national capital Delhi, the statistics stand at 821 girls against 1000 boys in 2001 compared to 866 in 2011. According to the statistics, nearly 10 million female foetuses have been aborted in the country over the past two decades. Of the 12 million girls born in India, one million do not see their first birthdays. As a result of this human trafficking has become common in various states of India where teenage girls are being sold for cheap money by poor families, being treated as sex objects with more than half of such cases go unreported. (21) The United Nations' World Population Fund indicated that India has one of the highest sex imbalances in the world and the demographers warn that there will be a shortage of brides in the next 20 years because of the adverse juvenile sex ratio, combined with an overall decline in fertility. With the advent of technology, ultrasound techniques gained widespread use in India during the 1990s which resulted in the fetal sex determination and sex selective abortion by medical professionals. Is it not that when a female child is aborted after sex determination, it is the CR No. 4/14 Urvashi Fakay Vs. State. Page 20 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
Doctor whose aim is to save the lives of people, who connives in this illegal act only for earning a few extra bucks? There are thousands of such clinics where such illegal activities of Sex Determination and Abortions are carried out on a daily basis and in some cases, in connivance with politicians, police and other local authorities and it is because of this connivance that the role of Non Government Organizations working in the area becomes significant. (22) In the present case, it is the Respondent No.2 NGO by the name of Beti Bachao Samiti who had gone to public to expose the illegalities allegedly committed by the Revisionists, there is no reason to primafacie suspect their intent, particularly those of the NGOs who are involved in the national campaign against female feticide and fall in the category of Whistle Blowers who have to be suitably protected. Clinics providing for prenatal diagnosis and sex determination flourish in connivance of local administration, police and other concerned authority only because those who are entrusted with the duty of taking action, chose to look the other way. This is a harsh Social and National reality and the Court of Law cannot shut its eyes to the same. This Court will not adopt an interpretation of law which defeats the object which this Special Act (PNDT Act) seeks to attain. Courts have to exercise a Zero tolerance for those primafacie involved in the crime of female feticide. The complaint filed by S. K. Sharma is the initial complaint and the complaint filed by the revisionists against him is much subsequent and possibility of this being a counter blast and preemptive CR No. 4/14 Urvashi Fakay Vs. State. Page 21 of 22 CR No. 5/14 Dr. Sunil Fakay Vs. State.
move cannot be ruled out and at present it will not be proper to draw any inferences on the same.
(23) Hence, under the given circumstances and keeping in view the totality of the circumstances, I find no ground to intervene. The revision petitions filed by the revisionists namely Urvashi Fakay and Dr. Sunil Fakay are hereby dismissed. Trial Court Record be sent back along with copy of this order.
(24) Revision files be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 02.07.2014 ASJ (NW)II: ROHINI
CR No. 4/14 Urvashi Fakay Vs. State. Page 22 of 22
CR No. 5/14 Dr. Sunil Fakay Vs. State.