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1 This is a revision petition by the original accused in Regular Criminal Case No.318 of 2011 decided on 28 th February 2014 by the learned Judicial Magistrate First Class, Karmala, District Solapur. The learned trial court, by this judgment and order, was pleased to convict the revision petitioner/accused of offences punishable under Section 23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) 912-REVN-554-2015-APPR-66-2016.doc Act, 2003, (hereinafter referred to as PCPNDT Act for the sake of brevity) for contravention of Sections 5(2) and 6, for contravention of Section 4(3) read with Rule 9(4), 10(1A) of the Pre-natal Diagnostic Techniques (Regulation and Prevention of misuse) Amendment Rules 2003 (hereinafter referred to as PNDT Rules for the sake of brevity), for contravention of Rule 9(8) of PNDT Rules, for contravention of Section 5 of PCPNDT Act read with Rule 10 of PNDT Rules and for contravention of Rule 19(4), Rule 17(1) and Rule 17(2) of PNDT Rules. For contravention of Sections 5(2) and 6 of PCPNDT Act, for contravention of Section 4(3) of PCPNDT Act read with Rule 9(4), 10(1A) of PNDT Rules as well as for contravention of Section 5 of PCPNDT Act read with Rule 10 of PNDT Rules, the revision petitioner/accused is sentenced to undergo rigorous imprisonment for 3 years apart from payment of fine of Rs.10,000/- in default, to undergo further simple imprisonment for 2 months, on each count. For contravention of Rule 9(8) of PNDT Rules punishable under Section 23 of the PCPNDT Act, the revision petitioner/accused is sentenced to suffer rigorous imprisonment for 6 months and to 912-REVN-554-2015-APPR-66-2016.doc pay a fine of Rs.5,000/-, in default, to undergo further simple imprisonment for 1 month. For contravention of Rule 19(4), Rule 17(1) and 17(2) of PNDT Rules punishable under Section 23 of the PCPNDT Act, the revision petitioner/accused, on each count, is sentenced to suffer rigorous imprisonment for 3 months apart from payment of fine of Rs.5,000/- and in default, to undergo further simple imprisonment for 1 month. All substantive sentences were directed to run concurrently by the learned trial court, by this impugned judgment and order. 2 The revision petitioner/accused carried this judgment of conviction and consequent sentence imposed on her in Criminal Appeal bearing no.57 of 2014, which ultimately came to be dismissed by the learned Additional Sessions Judge, Barshi, by the judgment and order dated 25 th November 2015. That is how, the revision petitioner/accused is invoking revisional jurisdiction of this court for challenging her conviction and resultant sentence for alleged contravention of the provisions of PCPNDT Act as well as PNDT Rules framed thereunder.

912-REVN-554-2015-APPR-66-2016.doc 3 The revision petition came up for hearing of Criminal Application No.66 of 2016 whereby the revision petitioner/ accused has prayed for suspension of conviction recorded against her by the courts below. Shri Kapadnis, the learned APP appearing for the respondents insisted that instead of deciding the application for suspension of sentence, the revision petition itself should be heard finally. The learned advocate for the revision petitioner/accused agreed for adopting this course of action. That is how, the revision petition was heard finally as record and proceedings were already called and available with this court. 4 Heard Shri Mohite, the learned advocate appearing for the revision petitioner/accused. He argued that the revision petition needs to be allowed for the simple reason that the complaint, as framed and filed for alleged violation of the provisions of PCPNDT Act as well as PNDT Rules framed thereunder, was not maintainable as the same was not filed by the Appropriate Authority. It is argued on behalf of the revision petitioner/accused that the Appropriate Authority can authorize 912-REVN-554-2015-APPR-66-2016.doc any person to lodge a complaint but the Appropriate Authority cannot appoint another person as Appropriate Authority under the PCPNDT Act. In the case in hand, PW5 Sub-Divisional Officer Mrs.Vidyut Varkhedkar had not authorized complainant Dr.C.D.Veer, the Medical Superintendent to lodge the complaint on behalf of the Sub-Divisional Officer against the revision petitioner/ accused. Even if it is assumed that PW5 Mrs.Vidyut Varkhedkar, Sub-Divisional Officer, had authorized somebody else to lodge the complaint on her behalf, she being the Appropriate Authority, then also, it needs to be kept in mind that the authorization was to the Medical Officer and not to the Medical Superintendent. Evidence of this witness shows that these two posts are totally different. Shri Mohite, the learned advocate further argued that PW5 Mrs.Vidyut Varkhedkar has admitted that she has not even raided the hospital of the revision petitioner/accused in the capacity of the Appropriate Authority under the PCPNDT Act. She accepted the fact that Medical Officer and Medical Superintendent are two different posts and she had ordered the Medical Officer as per her letter Exhibit 25 to do the needful in the matter. The learned 912-REVN-554-2015-APPR-66-2016.doc advocate further argued that the complaint filed by PW1 Dr.C.D.Veer as well as his evidence shows that he claimed himself to be the Appropriate Authority under the PCPNDT Act, being appointed vide Notification dated 6th November 2001. However, the Notification dated 6th November 2001 is not appointing the Medical Superintendent of the Sub-District Hospital as the Appropriate Authority, and therefore, the learned trial court ought not to have taken cognizance of the offence alleged in the said complaint, which was not by the Appropriate Authority. 5 Shri Mohite, the learned advocate, further argued that persons conducting the raid on the hospital of the revision petitioner/accused are not examined and copy of panchnama was not given to the revision petitioner/original accused. PW1 Dr.C.D.Veer, who has lodged the complaint, had not even visited the hospital of the revision petitioner/accused at the time of the raid or thereafter. The learned advocate argued that ladies named Varsha Deshpande and Shaila Jadhav, at whose instance the entire episode had taken place are not examined by the prosecution. He 912-REVN-554-2015-APPR-66-2016.doc assailed the conviction of the revision petitioner/accused on the ground that affidavit at Exhibit 33 sworn by PW2 Prerna Bhillare was on the stamp paper purchased on 24th August 2010, but it is seen that the contents of the affidavit were scribed on that stamp paper on 23rd August 2010 itself i.e., prior to purchase of the stamp paper. This makes the prosecution case suspect. 6 Shri Kapadnis, the learned APP appearing for the respondents i.e. the State and the Appropriate Authority justified the impugned judgments and orders by arguing that the Government Resolution dated 6th November 2001 at Exhibit 50 makes it clear that the Medical Superintendent of the Sub-District Hospital is an Appropriate Authority to discharge the functions under the PCPNDT Act as well as PNDT Rules framed thereunder, within the jurisdiction of the Taluka in which the said hospital is situated. Therefore, in submission of Shri Kapadnis, the learned APP, PW1 Dr.C.D.Veer was empowered to lodge a complaint of violation of PCPNDT Act as well as PNDT Rules framed thereunder and to maintain the same before the Competent Authority. Shri 912-REVN-554-2015-APPR-66-2016.doc Kapadnis, the learned APP, further argued that evidence of witnesses examined by the prosecution establishes contravention of several provisions of the PCPNDT Act as well as PNDT Rules framed thereunder by the revision petitioner/accused, who was owner of the said hospital. He, therefore, submitted that the revision petition is liable to be dismissed.

14 At the outset, we may note that the short controversy involved in the instant case is, whether respondent No.2 herein i.e original complainant Dr.C.D.Veer who was holding the post of Medical Superintendent, Sub-District Hospital, Karmala, District Solapur, can be termed as the Appropriate Authority notified under Section 17(2) of the PCPNDT Act and whether the private criminal complaint lodged by him in the capacity of holder of the post of the Medical Superintendent, Sub-District Hospital, Karmala, for contravention of the provisions of PCPNDT Act and Rules framed thereunder is maintainable. In other words this Court will have to examine whether the Medical Superintendent of the Sub-District Hospital, Karmala, District Solapur is notified by the State Government under Section 17(2) of the PCPNDT Act as the "Appropriate Authority" for the area under the jurisdiction of that Hospital. It is not the case of the respondent No.2/original complainant that respondent No.2 Dr.C.D.Veer, Medical 912-REVN-554-2015-APPR-66-2016.doc Superintendent, Sub-District Hospital Karmala has been authorized by the State Government or by the "Appropriate Authority" to lodge the Criminal Complaint bearing Regular Criminal Case No.318 of 2011, against the revision petitioner/ original accused. On the contrary, averments in paragraph 1 of that private criminal complaint are to the effect that Dr.C.D.Veer, Medical Superintendent of the Sub-District Hospital, Karmala, District Solapur is appointed as the Taluka Appropriate Authority and notified under Chapter V of the PCPNDT Act by the State Government. Perusal of the complaint filed by complainant Dr.C.D.Veer, Medical Superintendent of the Sub-District Hospital, Karmala shows that he acted as an Appropriate Authority under the PCPNDT Act for filing the subject criminal complaint which ultimately resulted in conviction of the Revision Petitioner. 15 For deciding whether, respondent No.2 Dr.C.D.Veer Medical Superintendent Sub-District Hospital, Karmala was an Appropriate Authority or not, one will have to take a brief resume of the relevant provisions of the PCPNDT Act as well as the Rules 912-REVN-554-2015-APPR-66-2016.doc framed thereunder. Section 17(2) and (3) of the PCPNDT Act confers power on the State Government to appoint Appropriate Authorities and the relevant portion of this Section reads thus:

33 In view of reasons recorded in foregoing paragraphs, I hold that the complainant in Regular Criminal Case No. 381 of 2011 i.e. Dr. C.D.Veer, Medical Superintendent, Sub-District Hospital, at Karmala cannot be held as an Appropriate Authority under the PCPNDT Act and the Notification dated 6th November 912-REVN-554-2015-APPR-66-2016.doc 2001 (Exhibit 50) is therefore of no avail to the complainant in this regard. At the cost of repetition, I further add that the complaint is neither made by the complainant/respondent no.2 herein in the capacity of an Officer authorized in that behalf by the State Government or by the Appropriate Authority. As such the learned JMFC, Karmala, District Solapur had no powers to take cognizance of an offence under the PCPNDT Act alleged against the present Revision petitioner/original accused in the said complaint. When the PCPNDT Act and particularly Section 28 thereof does not contemplate institution of the prosecution by any person/Officer other than those designated therein, it needs to be held that complainant Dr.C.D.Veer, Medical Superintendent, Sub- District Hospital, Karmala was not at all competent to lodge the complaint against the present revision petitioner/original accused for the offences punishable under the PCPNDT Act The use of the negative words in Section 28 to the effect, "No Court shall take cognizance of an offence under this Act except on the complaint made by ........." clearly makes the requirement of this Section imperative and mandatory. Thus when Section 28 of the PCPNDT 912-REVN-554-2015-APPR-66-2016.doc Act prescribes the manner in which the complaint for the offence under the PCPNDT Act should be made and when such requirement is expressed in negative language then the complaint under the PCPNDT Act can be filed only in the manner as has been laid down in the said Section by the Officer/person mentioned therein. As Section 28 of the PCPNDT Act prescribes that the Court shall not take cognizance of the offences under the said Act except on a complaint made by the Authority or Officer or a person prescribed therein, others cannot lodge the complaint regarding offence under the said Act. Permitting some other person/Officer to institute complaint is necessarily forbidden by Section 28 of the PCPNDT Act. Thus, the power and authority to lodge complaint of the offence punishable under the PCPNDT Act can be exercised only by the Authority, Officer or the person prescribed by the provisions of the Section 28 of the PCPNDT Act. The law laid down by the Hon'ble Apex Court in the matter of A.K. Roy & another (supra) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, is applicable with full force to the case in hand and as 912-REVN-554-2015-APPR-66-2016.doc such it needs to be held that the subject complaint bearing Regular Criminal Case No.318 of 2011 was not lodged by an authority competent to lodge the same for alleged commission of offences under the PCPNDT Act by the revision petitioner/original accused. As such, the learned JMFC, Karmala could not have validly taken cognizance of the offences alleged in the said criminal complaint bearing Regular Criminal Case No.318 of 2011. As this Court is of the considered view that the complaint bearing Regular Criminal Case No.318 of 2011 was not made by the Authority, Officer, or Person competent to do so as per the mandatory provisions of Section 28 of the PCPNDT Act, I do not wish to burden this judgment by dealing with other contention raised by the parties in respect of alleged violation of Provisions of the PCPNDT Act as well as the Rules framed thereunder. 34 The net result of foregoing discussion makes it clear that the impugned judgments and orders of the courts below suffer from error of law, and hence, I proceed to pass the following order :