Karnataka High Court
Smt.Aruna Kottur Basappa Akki vs The State Of Karnatnaka on 14 December, 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.P.NO.100777/2018
BETWEEN :
SMT.ARUNA KOTTUR BASAPPA AKKI,
AGE : 65 YEARS, OCC; MEDICAL PRACTITIONER,
R/O MAHANTESH MULTISPECIALTY HOSPITAL,
ORTHOPEDIC & TRAUMA CENTRE, OPP. IB,
JOSHI GALLI, ILKAL AND MAHANTESH NURSING HOME,
ILKAL, TQ: HUNGUND, DT.BAGALKOT.
... PETITIONER
(BY SRI C.V.NAGESH, SENIOR COUNSEL FOR
SRI NEELENDRA D.GUNDE ADV.)
AND :
1. THE STATE OF KARNATAKA
THROUGH THE DISTRICT APPROPRIATE AUTHORITY,
PRE-CONCEPTION & PRENATAL DIAGNOSTIC
TECHNIQUES,
(PROHIBITION OF SEX SELECTION) BAGALKOT.
2. DR.D.B.PATTANSHETTI,
AGE : 47 YEARS, OCC: DISTRICT FAMILY WELFARE
OFFICER & CHAIRMAN DISTRICT PC-PNDT
INSPECTIONS & MONITORING COMMITTEE-BAGALKOT.
APPROPRIATE AUTHORITY/AUTHORISED OFFICER,
R/O BAGALKOT, DT.BAGALKOT.
... RESPONDENTS
(BY SRI PRAVEEN K.UPPAR HCGP)
THIS PETITION IS FILED UNDER SECTION 482 OF THE
CODE OF CIVIL PROCEDURE PRAYING THIS COURT TO QUASH
THE ORDER DATED 19.12.2017 PASSED BY THE LEARNED
ADDL. CIVIL JUDGE & JMFC-HUNGUND IN C.C.NO.1406/2017
(P.C.NO.132/2017) THEREBY TAKING COGNIZANCE FOR THE
OFFENCES PUNISHABLE U/S 28(2) OF PRE-CONCEPTION &
PRE-NATAL DIAGNOSTIC TECHNIQUES (PROHIBITION OF SEX
SELECTION) ACT, 1994, AS AGAINST THE PETITIONER, IN THE
INTEREST OF JUSTICE AND EQUITY.
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THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
: ORDER :
The petitioner being the sole accused is before this Court seeking to quash the order dated 19.12.2017 passed by the Additional Civil Judge & JMFC Court at Hungund ("the Trial Court" for short), in C.C.No.1406/2017 (P.C.No.132/2017), taking cognizance for the offence punishable under Section 28(2) of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ("the Act" for short), as against the petitioner and consequently to quash the criminal proceedings in the interest of justice.
2. Brief facts of the case are that, the District Family Welfare Officer & Chairman, District PC-PNDT Inspections & Monitoring Committee, Bagalkot (herein after "the Committee" for short) filed the private complaint in PCR No.132/2017 before the Trial Court against the accused alleging commission of the 3 offence under Section 28(A) of the Act. The complainant had stated that, he is working as District Family Welfare Officer & the President of the Committee and he is the authorized officer under the Act.
3. Heard Sri C.V.Nagesh learned Senior Counsel for Sri Neelendra D.Gunde learned counsel for the petitioner and Sri Praveen K.Uppar, learned High Court Government Pleader for respondents- State.
4. Learned Senior Counsel would submit that, without going into the merits of the case, the complaint should fail on the sole ground that the complainant is not the authorized officer as required under sections 17(3) and 28(1)(a) of the Act. He would submit that, to maintain a complaint for violation of any of the provisions of the Act and for the Court to take cognizance of the offence as required under Section 28(1) of the Act, the 4 complaint must be by an appropriate authority or any officer authorized in this behalf by the Central Government or the State Government, as the case may be. A person being appropriate authority to maintain the complaint should be, a person notified in this regard as required under Section 17(3)(b) of the Act. In the present case, the complainant is not the appropriate authority or the person who is notified under Section 17 of the Act and therefore the Trial Court could not have taken cognizance of the offence hence, there is a clear bar under Section 28 of the Act.
5. He placed reliance on the decision of the High Court of Madhya Pradesh, Indore, in the case of Manvinder Singh Gill (Dr.) Vs. State of Madhya Pradesh1 wherein the High Court has considered a similar situation and held in paragraph No.12 as under :
1
2013 SCC OnLine MP10918 5 "12. In view of the notification issued by the State Government dated 4.4.2007, it is clear that in exercise of the power conferred under section 17 (2) (3) (b) the District Magistrate, Indore has been appointed as appropriate authority. No other order/notification issued by the State Government for appointment of appropriate authority or officer authorized, in favour of Smt. Renu Pant or Shri Anand Sharma, Additional Collectors has been filed. By the order passed by the Collector on 12.4.2007 and 28.7.2010 they have been nominated to help the appropriate authority in monitoring for execution of the P.C. and P.N.D.T. Adhiniyam. As per the requirement of law, in view of the language of section 28 (1) (a) the complaint may be maintained either by the appropriate authority or by the officer authorized by the Central or State Government. On the basis of nomination order of Collector in favour of Smt. Renu Pant and Shri Anand Sharma, they cannot be treated to be the appropriate authority or officers authorized 6 for the purpose of section 28 of the Adhiniyam"
6. This judgment of the High Court of Madhya Pradesh was called in question by the State of Madhya Pradesh before the Hon'ble Apex Court in Special Leave to Appeal (Criminal) No.2226/2014 which was came to be dismissed vide order dated 03.08.2015.
7. Relying on this decision, the learned Senior Counsel would contend that, taking cognizance of the complaint is bad under law and therefore, the said order is to be set aside, consequently the complaint filed by the complainant is also liable to be quashed. Accordingly he prays for allowing the petition.
8. Per contra, learned High Court Government Pleader would contend that even though the complainant is not the appropriate authority as defined under the Act, he has categorically stated in the complaint that he is the District Family Welfare 7 Officer & President of Committee and the authorized officer. Therefore, the complaint is maintainable. Hence, he prays for dismissal of the petition.
9. Perused the materials on record.
10. In the light of the rival submissions made by learned counsel for both the parties, the point that would arise for consideration of this Court is as follows:
"Whether the order dated 19.12.2017 passed by the Trial Court in PC.No.132/2017 (C.C.No.1466/ 2017) taking cognizance for the offence punishable under Section 28(2) of the Act is liable to be quashed under Section 482 of Cr.P.C?"
11. My answer to the above point is in the 'affirmative' for the following:
: REASONS :
12. The learned Senior Counsel restricted his contention only on the technical ground that the 8 complaint filed by the complainant i.e., the District Family Welfare Officer & the Chairman of the Committee, Bagalkot is not maintainable for want of authority as required under the provisions of the Act. The notification in this regard dated 15.10.2011, notifies the Deputy Commissioner at the District level being the appropriate authority and under Section 17(3)(b) of the Act. The Assistant Commissioners of the Sub-Divisions in the District of Bijapur, Bagalkot, Davanagere, Belgaum, Chitradurga, Mandy, Bidar and Gulbrga Districts were appointed as appropriate authorities at the Sub-District level.
13. It is not in dispute that, the hospital in question in the present case is situated at Ilkal, which is within the district of Bagalkot. Admittedly, except the notification dated 15.10.2011 there are no other notification which appoints the complainant herein as the appropriate authority, either under Section 17(2) or under Section 17(3)(b) of the Act.
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14. Section 28(1)(a) of the Act reads 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 the State Government as the case may be, or the Appropriate Authority, or (2) xxxxx
15. The decision relied on by the learned Senior Counsel Manvinder Singh Gill (supra) as well as of the Hon'ble Apex Court referred to above makes it clear that to maintain a complaint under Section 28(1)(a) of the Act, any officer authorized by the appropriate authority notified under Section 17(3) would also be entitled to initiate action under the Act. But however, admittedly in the present case, the complainant is not the officer notified under Section 10 17(3) of the Act. Therefore, the complaint should fail only on technical ground, on that ground alone.
16. At this stage the learned High Court Government Pleader seeks reserving liberty in favour of the State to proceed against the accused in accordance with law. Learned Senior Counsel would submit that, if at all the liberty is to be reserved in favour of the State to prosecute the accused, the same is only if permissible under law.
17. In view of the above, I am of the opinion that the cognizance taken by the Trial Court is liable to be quashed. Hence, I answer the above point in the 'affirmative' and proceed to pass the following:
: ORDER :
The petition is hereby allowed.
The order dated 19.12.2017 passed by the Additional Civil Judge & JMFC Court at Hungund in C.C.No.1406/2017 (P.C.No.132/2017), taking cognizance for 11 the offence punishable under Section 28(2) of the Act, against the petitioner is hereby quashed. Consequently the complaint in PCR.No.132/2017 is also quashed.
However, liberty is reserved with the State to prosecute the accused on the same cause of action, if the same is permissible under law.
All the contentions of the parties are kept open to be highlighted at the appropriate stage.
Sd/-
JUDGE EM