Document Fragment View

Matching Fragments

PNDT Act and as Respondent Nos.1 to 4 had not investigated the complaint, with regard to the violation of the provisions of the said Act, the petitioner was constrained to file a complaint under Section 28(1)

(b) of the PC-PNDT Act in the Court of the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The said complaint was registered as C.C.No.70/MISC/13. It is alleged by the complainant that Respondent Nos.1 to 7 have committed several offences under the PC-PNDT Act and in particular, there was violation of the provisions of Section 3A,5,6,17(4-a,b,c,d,e), 18, 19, 20(3), 23(1) (2),22,25,29 of the PC-PNDT Act and violation of Rules 4(1,2,3),5,6,9, (1,2,3,4,5,6,7,8),10(1-A),11 and 12 of the PC-PNDT Rules. In the said complaint, the Petitioner had interalia prayed, that the Court be pleased to take cognizance of the complaint under Section 28(1)(b) of the PC-PNDT Act ; to direct the Appropriate Authority namely Respondent Nos.1 to 7 to produce the available record and make available copies of the relevant record in their possession to the complainant and to try and convict the Respondents for the offences as stated aforesaid.

11. On the interpretation of sub-section 3 of Section 28 of the PC-PNDT Act, Mr. Rao submitted that the word 'may' as it appears in Section 28(3) of the said Act vests in the Magistrate a discretion and cannot be read as 16/27 wp.4164.2013.doc 'shall'. He submitted that the discretion so vested has to be exercised judiciously and the Magistrate has to, after considering the merits of the complaint, decide whether the records/documents as sought for ought to be given to the complainant. He submitted that there are several stakeholders involved in surrogacy matters and that it is essential to maintain the privacy of the parties in cases of surrogacy. He submitted that the Petitioner had not laid any foundation for getting access to the documents/records and therefore the learned Magistrate had rightly rejected his application seeking copies of the records from the Appropriate Authority. He submitted that there is an inbuilt safeguard in Section 28(3) of the PC-PNDT Act which vests in the Magistrate a discretion and if the word 'may' is read as 'shall', a busy body or a speculative informant without any foundation whatsoever, would on filing of a complaint, be entitled to receive the records as a matter of right. He submitted that the complainant has to lay down some foundation and that speculative information or roving enquiry, cannot be the basis for getting access to the records, at the asking. He submitted that it was for the Magistrate in his discretion to consider, whether the complaint is bonafide and genuine, whether the complaint has any merit or substance and whether the Appropriate Authority is acting in collusion with the party. He submitted 17/27 wp.4164.2013.doc that the inbuilt safeguards would go, if the word 'may' as it appears in Section 28(3) of the PC-PNDT Act is to be read as 'shall'. He therefore submitted that the word 'may' will have to be read as 'may' and not as 'shall'.

14. Perused all the relevant provisions of the PC-PNDT Act and relevant rules, more particularly, Section 28 of the said Act and the statement of object and reasons for enacting the PC-PNDT Act. A perusal of Section 28 of the PC-PNDT Act clearly shows that no court can 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 after giving notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, 20/27 wp.4164.2013.doc of the alleged commission of an offence and of his intention to make a complaint to the Court. The explanation to the said section shows that for the purpose of Section 28 clause (b), "person" includes a social organization. Under clause 3 of Section 28 where a complaint has been made under clause (b) of sub-section (1) of Section 28, 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.

section (3) of Section 28 of the PC-PNDT Act will have to be read as `may' and not `shall', or 'must' ; thereby giving discretion to the Magistrate to decide whether the complainant is entitled to the records as sought for.

Thus, there is no vested right in the complainant to get the records as a matter of right. It may be noted here, that none of the parties have raised the issue, as to whether the Magistrate was competent to consider the application preferred under Section 28(3) of the PC-PNDT Act prior to taking cognizance of the alleged offences under the PC-PNDT Act, and hence the said issue has not been considered and left open.