Orissa High Court
Ramesh Chandra Naik And Others vs State Of Orissa on 3 April, 2018
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 2082 Of 2010
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with G.R. Case No.430 of 2007
pending in the Court of S.D.J.M., Nayagarh.
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Ramesh Chandra Naik
& others ....... Petitioners
-Versus-
State of Orissa ....... Opposite party
For Petitioners: - Mr. Samir Kumar Mishra
K.R. Mohanty
J. Pradhan, P. Prusty
D.K. Pradhan
For Opp. Party: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 29.03.2018 Date of Judgment: 03.04.2018
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S. K. SAHOO, J.Yatra Naaryastu Poojyante Ramante Tatra Devataah which means where women are honoured, divinity blossoms there. Woman is the creator of the universe. A woman plays her adorable role as 'Janani Bhagini Jaya'. Every man needs a mother, a sister and a wife. It is said that behind every 2 successful man, there is a woman. She is graceful. She is compassionate. She bestows all her love for everybody in the family. She is the epitome of sacrifice and strength. She has occupied every significant place in the history of religion, art, literature, politics, sports and even in spiritual path and excelled in discharging her duty. In spite of such glorious contribution of womanhood to our society, in the 21st century when one fails to realize her worth and becomes instrumental in cases of female foeticide and ending the lives of the defenceless angles sent by God in the mother's womb in a cruel manner, the concept of equal right and equality of status as envisaged in the Constitution appears unrealistic and it creates a dent on the unthinkable conduct of a civilised society.
In case of Voluntary Health Association of Punjab -Vrs.- Union of India reported in (2016) 10 Supreme Court Cases 265, Hon'ble Justice Dipak Misra speaking for the Bench observed as follows:-
"40. It needs no special emphasis that a female child is entitled to enjoy equal right that a male child is allowed to have. The constitutional identity of a female child cannot be mortgaged to any kind of social or other concept that has developed or is thought of. It does not allow any room for any kind of compromise. It only 3 permits affirmative steps that are constitutionally postulated. Be it clearly stated that when rights are conferred by the Constitution, it has to be understood that such rights are recognised regard being had to their naturalness and universalism. No one, let it be repeated, no one, endows any right to a female child or, for that matter, to a woman. The question of any kind of condescension or patronization does not arise.
41. When a female foetus is destroyed through artificial means which is legally impermissible, the dignity of life of a woman to be born is extinguished. It corrodes the human values..."
In case of Voluntary Health Association of Punjab -Vrs.- Union of India reported in (2013) 4
Supreme Court Cases 1, Hon'ble Justice Dipak Misra observed as follows:-
"14. Female foeticide has its roots in the social thinking which is fundamentally based on certain erroneous notions, egocentric traditions, perverted perception of societal norms and obsession with ideas which are totally individualistic sans the collective good. All involved in female foeticide deliberately forget to realise that when the foetus of a girl child is destroyed, a woman of the future is crucified. To 4 put it differently, the present generation invites the sufferings on its own and also sows the seeds of suffering for the future generation, as in the ultimate eventuate, the sex ratio gets affected and leads to manifold social problems. I may hasten to add that no awareness campaign can ever be complete unless there is real focus on the prowess of women and the need for women empowerment.
xx xx xx xx xx
16. It is not out of place to state here that the restricted and constricted thinking with regard to a girl child eventually leads to female foeticide. A foetus in the womb, because she is likely to be born as a girl child, is not allowed to see the mother earth."
2. The petitioners Ramesh Ch. Naik, Surendra Kumar Sarangi, Aurobinda Mohapatra, Prasanta Kumar Sahoo, Ritanjali Mishra and Sanjay Chandra Rao who are all doctors have approached this Court in an application under section 482 of Cr.P.C. challenging the impugned order dated 30.09.2008 of the learned Sub-divisional Judicial Magistrate, Nayagarh passed in G.R. Case No.430 of 2007 in taking cognizance of offences under sections 312, 315, 316, 109/34 of the Indian Penal Code, sections 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 5 (hereafter 'PCPNDT Act') and section 5(3)(4) of the Medical Termination of Pregnancy Act, 1971 (hereafter 'MTP Act') and issuance of process against them. The said case arises out of Nayagarh P.S. Case No.234 of 2007 which also corresponds to CID, CB, Orissa, Cuttack P.S. Case No.18 of 2007.
3. On 14.07.2007 on the first information report of Sri Tareque Ahemad, Inspector in charge, Nayagarh police station, Nayagarh P.S. Case No.234 of 2007 was registered under sections 312, 315, 318 read with section 34 of the Indian Penal Code.
It is the prosecution case that on 14.07.2007 at 7.00 p.m. while witnessing news in a local television channel, the informant came across a news item that seven stillborn babies were lying in an abandoned house on the foot of a hillock locally called as Duburi Hill by the side of Lathipada village road. The informant after entering the said fact in Nayagarh P.S. station diary entry No. 287 dated 14.07.2007 proceeded to the spot along with other police officials to verify the authenticity of such news item. In village Ramchandra Prasad, he contacted villagers who reported that they had seen premature female fetuses of six to seven months lying dead inside the abandoned broken house at about 5.30 p.m. The informant along with the villagers of Ram 6 Chandi Prasad proceeded to the spot where the villagers pointed out the place where the dead female fetuses were lying. Though empty polythene bags containing patches of blood and saliva were lying at the spot but the dead female fetuses were found missing. The informant seized the four polythene bags in presence of the witnesses at the spot at 8.30 p.m. and he searched the vicinity of Duburi foot hill but could not locate any dead body. During inquiry, the informant ascertained that in the afternoon, some cowherd boys while tending cattle noticed polythene bags containing dead female fetuses were being dragged by crows and dogs. Getting such information, those cowherd boys came to the spot and noticed seven female fetuses of about six to seven months were lying dead in polythene bags. The media persons also reached there and took photographs. Since it became dark, they left the place. The villagers told that the dead bodies might have been eaten by dogs, jackles and wolves. They further told that the dead bodies might have been thrown by the workers of Nursing Homes of Nayagarh where the doctors in connivance with Nursing Home owners after determining the sex were causing miscarriage illegally with contact of pregnant women to prevent female child being born alive and secretly disposing of the dead bodies to conceal their 7 birth. They further told that about a month back also, they had noticed three of such female fetuses lying dead in the same place but they had not disclosed it anywhere. The informant found proof of complicity and involvement of doctors, Nursing Home owners and all the concerned pregnant women causing miscarriage to prevent female child being born and secretly disposing of the dead bodies to conceal their birth and accordingly, he drew up a plain paper F.I.R. which was registered against (i) the doctors of Nayagarh (ii) visiting doctors to the Nursing Homes, clinics and ultrasound centers of Nayagarh (iii) owners of Nursing Homes, clinics, ultrasound centers of Nayagarh and (iv) workers working at Nursing Homes, clinics and ultrasound centers of Nayagarh.
Sri K.S. Nayak, Sub Inspector of Police of Itamati outpost was directed by the Inspector in charge of Nayagarh police station to investigate the case. During course of investigation, the Investigating Officer examined the witnesses, visited the spot and prepared spot visit note. On 18.07.2007 he seized ultrasound machines from Rashmi Diagnostics, Nayagarh, Matru Shakti Complex and Sun Apollo Diagnostics, Nayagarh.
The case was taken over by CID, CB, Orissa, Cuttack and the very same first information report was re-registered on 8 21.07.2007 as CID, CB, Orissa, Cuttack P.S. Case No.18 of 2007 under sections 312, 315, 318 read with section 34 of the Indian Penal Code. The investigating officer K.S. Nayak handed over the charge of investigation of the case to D.P. Majumdar, Dy. S.P., CID, CB, Cuttack on 22.07.2007. The new investigating officer visited the spot, examined the witnesses. Naragarh police discovered a disposal pit in the barren land belonging to Smt. Sabita Sahoo, W/o.- Dr. Nabrakrushna Sahoo, a gynaecologist and owner of Krishna Nursing Home, Nayagarh where from 132 polythene packets were recovered and opening the bags, skull bones and other bones said to be of the fetuses being aborted in the Nursing Home were found. The I.O. arrested some of the accused persons and forwarded them to Court. He verified the clinics and ultrasound centers of Matrushakti, Satkar Clinics, Krishna Clinics, Rashmi Hospital in presence of the A.D.M.O., Executive Magistrate and others. Total five cases were instituted and inventory of articles found in the clinics were made by the respective Investigating Officers in those five cases. The I.O. placed requisition before the C.D.M.O., Nayagarh to provide information on the authority for declaring the C.D.M.O. as Appropriate Authority under the provisions of PCPNDT Act and particulars regarding the Nursing Homes and ultrasound centers 9 functioning in Nayagarh town. Requisition was also placed before the General Manager of the local television challan for supply of video footing relating to the telecast of disposal of the female fetuses on the foot of Duburi hill on 14.07.2007. The I.O. moved a petition before the learned S.D.J.M., Nayagarh for passing necessary orders for sending the ultrasound machines to S.C.B. Medical College and Hospital, Department of Radiology, Cuttack to conduct examination of the hard disk and retrieve the details of the tests performed. As per the order of the learned S.D.J.M., Nayagarh, the exhibits containing polythene packets seized in the case on 14.07.2007 were sent to S.F.S.L., Rasulgarh. The I.O. took over the charge of the ultrasound machines of Satkar Clinics and Patra Diagnostics and also produced the copies of the seizure lists, inventory lists and zimanama in respect of Patra Diagnostics and Satkar Clinics and the learned S.D.J.M., Nayagarh was pleased to pass order allowing the I.O. to carry the ultrasound machines for necessary examination at S.C.B. Medical College and Hospital, Cuttack. The I.O. further received five ultrasound machines from the Inspector in charge of Nayagarh police station which were also produced before the Superintendent of S.C.B. Medical College and Hospital, Cuttack for its examination in the Department of Radiology. The I.O. 10 received report from the Prof. and H.O.D. of the Department of Radiology in respect of five ultrasound machines that those machines did not contain any hard disk and therefore, it was not possible to retrieve any past activities of those machines. Some journalists of the local television who showed footage of dead female fetuses were examined. It was found that none of the five ultrasound centers of Nayagarh district were having any valid registration. The shortcomings and lapses on the part of the Nursing Homes and Clinics and ultrasound centers of Nayagarh district were pointed out by a team of doctors deputed by the Government in their report which was also seized. The I.O. also placed requisitions with the C.D.M.O., Nayagrh on 21.09.2007 to file a complaint as Appropriate Authority regarding the disposal of seven fetuses on 14.07.2007 at the foot of Duburi hill. The C.D.M.O. replied that none of the fetuses disposed of on the foot of Duburi Hill on 14.07.2007 were aborted/terminated at Nayagarh Hospital and that after registration of Nayagarh P.S. Case No. 234 of 2007, he has intimated the fact to Collector on 18.07.2007 which might be taken as the complaint of the Appropriate Authority under the provisions of PCPNDT Act. The I.O. received the opinion of the chemical examiner which indicated that traces of blood with human origin were found from 11 the four polythene packets sent for chemical examination. On 10.11.2007 Mr. D.K. Mohanty, Inspector CID, CB, Cuttack took over charge of investigation of the case. He prayed before the learned S.D.J.M., Nayagarh for recording the 164 Cr.P.C. statements of some witnesses. He also examined some witnesses, arrested some of the accused persons and forwarded them to Court. After completion of investigation, on 15.09.2008 the I.O. submitted chargesheet under sections 312, 315, 316, 109/34 of the Indian Penal Code and sections 23 and 25 of PCPNDT Act and section 5(3)(4) of MTP Act against eleven accused persons including the six petitioners.
4. Mr. Samir Kumar Mishra, learned counsel appearing for the petitioners contended that the F.I.R. on the face of it does not in any manner implicate any of the petitioners with the alleged crime and no legally admissible materials were collected during investigation to prima facie make out a case against the petitioners. The statements of witnesses namely Gopal Dalei, Sudarsan Ghadei and Iswar Naik have been recorded under section 164 Cr.P.C. Though witness Iswar Naik has stated that one Basanti who allegedly went for disposal of fetuses is a sweeper in Matrushakti Hospital, there is nothing on record to justify such bald claim of witness Iswar Naik. He contended that 12 no female fetus has been seized except some statements showing that they have seen fetuses which statements on the face of it is inconceivable in view of the fact that the fetuses were allegedly wrapped in bag.
It is further contended that while submitting charge sheet, in the brief facts of the case, the Investigating Officer has mentioned that seven stillborn babies were found at the foot of Duburi Hills on 14.07.2007. The medical terminology of 'stillborn babies' is the birth of a baby who is born without any sign of life at or after twenty four weeks of pregnancy. The baby might have died during the pregnancy (intrauterine death) or during labour or birth. Therefore, the prosecution case on the face of it is not relating to termination of pregnancy. It is further contended that no person of nearby villages or any person residing near Duburi Hills nor the people who were grazing cattle at the time of alleged occurrence have been examined to corroborate the claim as mentioned in the F.I.R. Therefore, prima facie case relating to commission of alleged offences for which the petitioners are sought to be prosecuted are not made out.
It is further contended that during the course of hearing of the case, a register purportedly to be MTP register has been produced. The counsel for the petitioners as well as the 13 State was permitted to inspect the said register in presence of the Deputy Registrar. On inspection of the register, it is noticed that the names of some of the petitioners have been mentioned either in abbreviated manner or in full in the said register. The petitioners have not put their signatures in the register and the investigating authority has not collected any materials to clarify as to under what circumstances the names of the petitioners were mentioned. It is further contended that barring few entries which do not relate to all the petitioners, the rest of the entries have no close proximity with the date of discovery of the alleged fetuses. The informant on being examined by the Crime Branch has specifically stated that he could not be able to find out from which clinic/Nursing Home/ Hospital, the fetuses have been disposed of at the foot of Duburi hill. The informant has stated that rivalry was going on between Nursing Homes of Nayagarh district for which some Nursing Homes jointly might have thrown the fetuses with a view to defame the other Nursing Homes with whom they were not pulling on well to put them into trouble.
It is further contended that section 28(1)(a) of the PCPNDT Act specifically mandates that no Court shall take cognizance of an offence under the Act except on a complaint being made by the Appropriate Authority and in the instant case, 14 C.D.M.O. is the Appropriate Authority. The Investigating Officer during the course of investigation sought for clarification with regard to the Appropriate Authority and after being informed that the C.D.M.O. is the Appropriate Authority, he placed a requisition with the C.D.M.O., Nayagarh to file complaint as Appropriate Authority. Intimation was received from the C.D.M.O., Nayagarh that none of the fetuses disposed of at Duburi foot hill on 14.07.2007 were aborted/terminated at Nayagarh Hospital. In view of such position, the prosecution of the petitioners is absolutely without any basis and cannot be sustained when the Appropriate Authority has given a clean chit with regard to such alleged disposal of female fetuses. It is contended that continuance of the criminal proceeding amounts to abuse of process of Court and therefore, in order to secure ends of justice, the proceeding should be quashed.
5. Mr. Prem Kumar Patnaik, learned Additional Govt. Advocate placed the statements of witnesses namely Gopal Dalai, Sudarsan Ghadei who were the sweepers of Matrushakti Hospital, Surya Narayan Biswal, Upendra Kalasa, Ragini Jena. He further submitted the MTP register seized from Matrushakti Hospital indicates that the petitioners have conducted number of MTP operations and the statements of witnesses and MTP 15 register entries clearly reveals prima facie case against the petitioners. It is further contended that initially the case was registered under sections 312, 315, 318 read with section 34 of the Indian Penal Code and during course of investigation, the commission of offences under sections 23 and 25 of the PCPNDT Act was found and accordingly chargesheet was submitted and therefore, no illegality has been committed by the Magistrate in taking cognizance of offences and issuing process against the petitioners.
6. I shall first deal with the order of taking cognizance under sections 23 and 25 of the PCPNDT Act.
Section 28 of the PCPNDT Act enumerates on what basis a Court can take cognizance of an offence under the Act and which Court is empowered to try the offence punishable under the Act. Cognizance of an offence under the Act can be taken on the basis of a complaint made by the (i) Appropriate Authority; (ii) any officer authorized in that behalf by the Central Government or State Government and also (iii) any officer authorized in that behalf by the Appropriate Authority. It could also be taken on the basis of a complaint made by a person, who had given a notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence 16 and of his intention to make a complaint to the Court. The later situation would arise in a case where the Appropriate Authority had failed to initiate action even in spite of the notice of the person concerned. In the later situation, after the complaint is filed, the Court is empowered to direct the Appropriate Authority to make available copies of the relevant records in its possession to the person concerned if he makes such a demand before the Court. A Metropolitan Magistrate or a Judicial Magistrate of first class is empowered to try any offence punishable under the Act. The explanation contained under clause (b) of sub-section (1) of section 28 states that the term 'person' includes a social organization. Therefore, the legislature in order to prevent the social evil has allowed any person to set the law in motion under the Act by approaching the Court after fulfilling the criteria laid down under clause (b) of sub-section (1). The word 'may' as it appears in sub-section (3) of section 28 of the PCPNDT Act gives discretion to the Court to decide whether the complainant is entitled to the copies of the relevant records as sought for from the Appropriate Authority. Though the complainant has got right to demand the copies of the relevant records but he has no vested right to get the same. The word 'may' cannot be interpreted as 'shall' or 'must'. The Court has to consider various 17 factors including the right of privacy of an individual who is likely to be affected, the purpose and object of the legislation, the right of the person to receive the documents and the violation, if any, of the provisions of the Act and Rules.
In case of A.K. Roy and Another -Vrs.- State of Punjab reported in A.I.R. 1986 S.C. 2160 where a question was raised whether the Food Inspector, Faridkot was competent to lodge a complaint against the appellants under section 20(1) of the Act for commission of an offence punishable under section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act') by virtue of the delegation of powers by the Food (Health) Authority, Punjab, the Hon'ble Court held as follows:-
"10. A careful analysis of the language of Section 20(1) of the Act clearly shows that it inhibits institution of prosecutions for an offence under the Act except on fulfillment of one or the other or the two conditions. Either the prosecutions must be instituted by the Central Government or the State Government or a person authorised in that behalf by the Central Government or the State Government, or the prosecutions should be instituted with the written consent of any of the four specified categories of authorities or persons. If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a 18 prosecution for an offence under the Act. The provision contained in Section 20(1) of the Act does not contemplate the institution of a prosecution by any person other than those designated. The terms of Section 20(1) do not envisage further delegation of powers by the person authorised, except that such prosecution may be instituted with the written consent of the Central Government or the State Government or the person authorised. The use of the negative words in Section 20(1) "No prosecution for an offence under this Act...shall be instituted except by or with the written consent of" plainly make the requirements of the section imperative. That conclusion of ours must necessarily follow from the well-known rule of construction of inference to be drawn from the negative language used in a statute stated by Craies on Statute Law, 6th edn., p. 263 in his own terse language :
If the requirements of a statute which prescribe the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding.
Where a power is given to do a certain thing in a certain way, the thing must be done in 19 that way or not at all. Other modes of performance are necessarily forbidden. The intention of the Legislature in enacting Section 20(1) was to confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise.
11. The first part of Section 20(1) of the Act lays down the manner of launching prosecutions for an offence under the Act, not being an offence under Section 14 or Section 14A. The second part provides for delegation of powers by the Central Government or the State Government. It enables that prosecutions for an offence under the Act can also be instituted with the written consent of the Central Government or the State Government or by a person authorised in that behalf, by a general or special order issued by the Central Government or the State Government. The use of the words 'in this behalf in Section 20(1) of the Act shows that the delegation of such power by the Central Government or the State Government by general or special order must be for a specific purpose, to authorise a designated person to institute such prosecutions on their behalf. The terms of Section 20(1) of the Act do not postulate further delegation by the person so authorised; he can only give his consent in 20 writing when he is satisfied that a prima facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution in the public interest."
'Appropriate Authority' as per section 2(a) of the PCPNDT Act means the Appropriate Authority appointed under section 17 of the Act. The procedure for appointment of Appropriate Authority has been enumerated in section 17 of the Act. The functions of Appropriate Authority have also been laid down under sub-section (4) of section 17 of the Act. The functions include investigating complaints of breach of the provisions of the Act or the rules made thereunder and take immediate action and also 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. The Appropriate authority is empowered under section 30 of the Act to enter and search at all reasonable times to any Genetic Counseling Centre, Genetic Laboratory, Genetic Clinic or any other place and examine any record etc. and seize and seal the same. Under sub-rule (3) of Rule 18-A of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter 'PCPNDT Rules'), the Appropriate Authority is duty 21 bound to attend to all complaints and maintain transparency in the follow-up action of the complaints and to investigate all the complaints within twenty four hours of receipt of the complaint and complete the investigation within forty-eight hours of receipt of such complaint.
Therefore, the Appropriate Authority has been given enormous power in the matter of investigation and also in taking appropriate legal action against the violators of provisions of the Act. PCPNDT Act is a special enactment. Section 5 of the Cr.P.C. provides that where a special or local law provides an exclusive procedure for dealing with the offence under that law, the provisions of the Cr.P.C. to that extent so provided in the special law stands excluded. If a provision is clearly expressed in any special law or local law that would be called 'specific provisions'. In other words, if the special Act does not indicate the specific provisions for enquiry into, trial or otherwise dealing with such offences then the procedure of the Code of Criminal Procedure would be applicable. Section 4 of Cr.P.C. also makes it clear that if an offence is committed under a special law then the provisions of that law would govern the investigation and trial of such offence and a police officer is not empowered either to submit chargesheet or otherwise proceed under Chapter-XII of 22 the Cr.P.C. The powers under the Cr.P.C. are thus subject to any special provisions that might be made with regard to the exercise or regulation of those powers by any special Act. In case of Directorate of Enforcement -Vrs.- Deepak Mahajan reported in 1994 Supreme Court Cases (Criminal) 785, it has been held that section 4 of Cr.P.C. is comprehensive and section 5 of Cr.P.C. is not in derogation of section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of section 4(2). In short, the provisions of the Code would be applicable to the extent in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction and applicability of the Code. The second link of section 4(2) of Cr.P.C. itself limits the application of the provisions of the Code. In case of Chandra Sekhar Pani -Vrs.- State of Orissa reported in (2004) 27 Orissa Criminal Reports 836, it is held that the two provisions i.e., sections 4 and 5 of Cr.P.C. clearly indicate that when a special law prescribed for a special form or procedure, the procedure contained in the Cr.P.C. is not to be followed.
The PCPNDT Act in section 28 lays down the restriction for a Court in taking cognizance of an offence under 23 the Act except on a complaint being made by certain categories of authorities or any person after fulfilling certain criteria. As per section 2(d) of Cr.P.C., complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. In the explanation to section 2(d) of Cr.P.C., it lays down that a report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be the complainant.
Section 27 of the PCPNDT Act states that every offence under the Act is cognizable. Section 154 of Cr.P.C. states that every information relating to the commission of a cognizable offence given to the officer in charge of a police station has to be registered as F.I.R. and as per section 156 of Cr.P.C. any officer in charge of a police station can investigate any cognizable case committed within the local limits of the police station even without the order of a Magistrate. In spite of the right conferred on the police officer in the Code in registering the first information report and also investigating a case which relates to 24 cognizable offence, in view of the special provision in the special Act, lodging of first information report for the commission of an offence under PCPNDT Act and submission of charge sheet for such offence is not permissible. Cognizance of any offence under the PCPNDT Act can be taken by a Court basing only on a complaint petition and that to being filed by the authorities mentioned in clause (a) of sub-section (1) of section 28 or by any person as mentioned in clause (b) of sub-section (1) of section 28. If a complaint petition as envisaged under section 28 of the PCPNDT Act is presented before a Court, the procedure laid down in Chapter-XV of Cr.P.C. is to be followed before issuance of process against the accused.
Learned counsel for the State produced Gazette notification of the Office Memorandum dated 27.07.2007 issued by Govt. of Orissa, Health and Family Welfare Department which indicates that in pursuance of Office Memorandum dated 12.02.2007 of Ministry of Health and Family Welfare, Govt. of India, the District Magistrate has been declared as District Appropriate Authority under section 17(2) of PCPNDT Act, 1994 amended in 2002. The State Govt. by virtue of such Office Memorandum appointed District Appropriate Authority and Sub- district Appropriate Authority. This notification superseded the 25 earlier notification of the Department dated 24.01.2002 appointing C.D.M.O. of each district as the Appropriate Authority. The case diary indicates that during course of investigation, the Investigating Officer placed requisitions with the C.D.M.O., Nayagrh to file a complaint as Appropriate Authority regarding the disposal of seven fetuses on 14.07.2007 at the foot of Duburi hill but the C.D.M.O. replied, inter alia, that after registration of Nayagarh P.S. Case No. 234 of 2007, he has intimated the fact to Collector on 18.07.2007 which might be taken as the complaint of the Appropriate Authority under the provisions of PCPNDT Act.
In view of the foregoing discussion, since cognizance of offences under sections 23 and 25 of the PCPNDT Act has been taken on the basis of the chargesheet submitted by police and not on the basis of a complaint petition as envisaged under section 28 of the PCPNDT Act, I am of the humble view that the learned Magistrate has committed illegality in taking cognizance of such offences and therefore, the impugned order of taking cognizance of offences under sections 23 and 25 of the PCPNDT Act stands quashed. The authorities mentioned under clause (a) of sub-section (1) of section 28 of the PCPNDT Act is at liberty to file complaint petition within four weeks from today before the 26 appropriate Court for taking cognizance of offences under the PCPNDT Act which will be considered in accordance with law.
7. So far as the other offences are concerned, after going through the case records produced by the learned counsel for the State, the statements of witnesses and documents seized, I find prima facie case for commission of offences under sections 312, 315, 316, 109/34 of the Indian Penal Code and section 5(3)(4) of the MTP Act is clearly made out. At the stage of taking cognizance of offence and issuance of process, the Magistrate has to be satisfied whether prima facie case is made out or not and whether there is sufficient ground for proceeding against the accused and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial. A detailed discussion of the merits or demerits of the case is not required to be gone into at that stage. While exercising jurisdiction under section 482 of the Code, the High Court should not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation would not be sustained. That is the function of the trial Judge. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of 27 the power requires great caution in its exercise. Section 482 of the Code is not an instrument handed over to an accused to short-circuit a legitimate prosecution and bring about its sudden death.
In view of the above, I find no perversity in the impugned order of taking cognizance so far as the offences under sections 312, 315, 316, 109/34 of the Indian Penal Code and section 5(3)(4) of the MTP Act and therefore, I am not inclined to interfere with the same.
Accordingly, the CRLMC application is allowed in part. The impugned order of taking cognizance of offences under sections 23 and 25 of the PCPNDT Act stands quashed. The order of taking cognizance of offences under sections 312, 315, 316, 109/34 of the Indian Penal Code and sections 5(3)(4) of the MTP Act is upheld. Since it is a case of the year 2007, the trial of the case be expedited. The MTP registers which have been received from the Court below be sent back in sealed cover to the concerned Court.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 03rd April, 2018/Sukant 28