Document Fragment View

Matching Fragments

2. Learned counsels Shri Som Mishra, Shri Hemant Namdeo and Shri Anurag Gohil for the petitioners placed reliance on the judgment of this Court in the case of Manvinder Singh Gill (Dr.) vs. State of M.P. reported in ILR (2014) MP 1176 to contend that in case the complaint has not been filed by the appropriate authority defined under Section 17(2)(3), the congnizance under Section 28(1)(a) of the PC & PNDT Act cannot be taken by the Court and the said complaint may be quashed. It is urged that the order passed by this Court has been confirmed dismissing the Special Leave to Appeal (Crl.) No.2226/2014 vide order dated 3.8.2015 by Hon'ble the Supreme Court with certain observations but the said observations also do not apply in the fact and situation of the present case. Reliance has also been placed on an other order dated 21.1.2016 passed in M.Cr.C. Nos.6408/2013 and 6407/2013 & Cr.R. No.1175/2012 (Dr. Girish Mehta vs. The State of Madhya Pradesh) wherein also the complaint filed by the concerned C.M.H.O. has been dismissed on the same ground. Learned counsel has also placed reliance on the order dated 30.1.2017 passed in M.Cr.C. No.10264/2016 (Dr. Das Motwani vs. State of M.P.) wherein this Court has again considered the order of Dr. Manvinder Singh Gill (supra) and the observation of the Supreme Court and reiterated the same principles. It is contended that the observation made by the Supreme Court in SLP (Criminal) is contrary to the provisions of the PC & PNDT Act, and is obiter, it cannot be treated as precedent. It is also urged that the observation of the Apex Court in reference to Section 28(1)(a) that complaint can be fied by any officer authorized by the "Appropriate Authority", must be notified in Official Gazette otherwise the requirement of Sections 17(2) and 17(3) of the Act shall not be fulfilled. The Central General Clauses Act, 1897 does not define "notification", whereas section 3(39) defines "official Gazette" or "Gazette" as the Gazette of India or the Official Gazette of the State. In The Madhya Pradesh General Clauses Act, 1957 word "notification" has been defined in Section 2(25) and "Official Gazette" or "Gazette" in Section 2(28) of the said Act. To buttress the said contention, reliance has been placed on the judgment of Hon'ble the Supreme Court in the case of Union of India and others vs. M/s Ganesh Das Bhojraj reported in AIR 2000 SC 1102. The reliance has also been placed on the case of Collector (District Magistrate) Allahabad and another vs. Raja Ram Jaiswal AIR 1985 SC 1622. In view of the said, it is submitted that if the Appropriate Authority has authorized any person, it ought to be notified as per Section 17(2) of the PC & PNDT Act, but no such notification has been produced before this Court, therefore, also the complaint filed by CMHO is liable to be quashed.

(2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

(3) Where a complaint has been made under clause (b) of sub-section (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.

10. On perusal thereof, it is apparent that Section 17 deals with Appropriate Authority and Advisory Committee. The present case relates to the appropriate authority of the State Government, however, sub section (2) and (3) would attract. On perusal thereof, the State Government shall appoint by notification in the Official Gazette one or more Appropriate Authorities either for the whole or part of the State. Sub section (3)(a) of Section 17 deals with appointment of Appropriate Authorities for whole of the State or Union Territory, while Section 17(3)(b) deals with appointment of appropriate authority for the part of the State, which is the case at hand. However, looking to the language of sub section (2) of Section 17, the appointment of Appropriate Authority under Section 17(3)(b) may be by way of notification in the Official Gazette. Section 28 deals the issue of taking of cognizance by a Court on a complaint made by the Appropriate Authority concerned as per Section 17(3)(a), or any officer authorized in this behalf by the Central Government or the State Government as the case may be, or the Appropriate Authority as specified in Section 17(3)(b) of the PC & PNDT Act. It is argued by the Govt. Advocate that Hon'ble the Apex Court in the Special Leave Petition (Criminal) in the case of Dr. Manvinder Singh Gill (supra) was impressed upon the argument of the counsel for the petitioner (State Government) and observed that "any officer authorized by appropriate authority notified under section 17(3) may also file the complaint under section 28(1)(a) of the Act". After going through the provisions of sections 17(2)(3) and 28(1)(a) of the PC & PNDT Act, the argument of learned counsel for the petitioner may have some relevance, but looking to the observations made by Hon'ble the Apex Court on the same issue in the context of the same provisions in the Special Leave Petition (Criminal), those observations are binding on the High Court, therefore, ignoring the argument of learned counsel for the petitioner, this Court has proceeded to decide the issue of tenability of the complaint, if any, filed by an officer authorised by appropriate authority also notified under Section 17(3) of the PC & PNDT Act.

11. Now, the issue, whether regarding officer authorised by the appropriate authority is required to be notified under Section 17(3) requires consideration. Learned Govt. Advocate contends that Section 28(1)(a), do not contemplate that the officer authorized by the Central or the State Government or by the appropriate authority is required to be notified in the Official Gazette. In this regard, after careful reading of the provisions of Section 17(2) and (3)(a)(b) and Section 28(1)(a) of the PC & PNDT Act and also the observation of Hon'ble the Apex Court, the said argument do not find to be appealing. As per Section 17(2), the appointment of appropriate authorities are required to be notified in Official Gazette. Indeed it is true Section 28(1)(a) do not contemplate that the appropriate authority concerned or any officer authorised in this behalf by the Central Government or the State Government, as the case may be or the appropriate authority are required to be notified. But Section 28(1)(a) cannot be read in isolation and required to be read conjointly with Section 17(2) and 17(3) of the PC & PNDT Act. On careful reading of Section 17(2), it is clear that the State Government shall appoint the appropriate authorities, by way of notification in the Official Gazette, for the purpose of this Act. The word "appropriate authorities" would include the authorities or members appointed under Section 17(3)(a)(i)(ii)(iii) for whole of the State, and the officer of such other rank for part of the State appointed under Section 17(3)(b). The word "for the purpose of this Act" denotes that appropriate authorities shall be appointed to carry out the purpose of the PC & PNDT Act. Section 28(1) put an embargo on the Court for not taking cognizance until the complaint is made (a) by appropriate authority concerned which denotes Section 17(3)(a), or any officer authorised by the Central Government or the State Government, in this behalf, as the case may be, or the appropriate authority which denotes Section 17(3)(b), under this Act. Thus, to take cognizance of an offence under this Act by the Court is on a complaint made, therefore, it can be held that the appropriate authority and the members of the Advisory Committee as specified in Section 17 are the authorities for the purpose of Section 28(1) of the PC & PNDT Act. In section 28(1)(a) "any officer authorised by the Central Government or the State Government in this behalf as the case may be may also file a complaint, if notified, may also file a complaint but nothing has been brought on record that CMHO of the concerned district is the officer authorised by the State Government and notified to make a complaint. In the present case, the State Government, though filed the return but not produced any document indicating that the CMHO of the concerned district has been authorised by the appropriate authority, notified under Section 17(3) of the Act and conferred the power to made a complaint in the Court. Therefore, in absence of producing any Gazette notification showing appointment of the officer authorised or the appropriate authority by the State or by the appropriate authority, CMHO would not fall within the connotation "appropriate authorities" to carry out the functions of Section 28(1)(a) for the purpose of this Act. Simultaneously, in absence of producing any notification under Section 17(3), for appointment of the officer authorised by the appropriate authority, the observations of Hon'ble Supreme Court in the case of Dr. Manvinder Singh Gill (supra) is also of no help to the respondent/State.

23. Section 28(1)(a) of the PC & PNDT Act start with non-
obstante clause and to restrict the Court in taking cognizance of the offence under the provisions of this Act except on a complaint made, therefore, the word "complaint" and "made"

both are relevant. In the backdrop of the definition of complaint as per Section 2(d) of Cr.P.C., means a written or oral accusation made to the Judicial Magistrate to start proceedings against a known or unknown person. It does not include the report given to the police (F.I.R.). The purpose of the complaint is to apply to the Judicial Magistrate for setting the criminal action in motion. Unlike the provisions as specified in Section 142 of Negotiable Instruments Act wherein also cognizance can be taken for an offence punishable under Section 138 of the said Act on filing a complaint in writing. Thus, looking to the language of Section 28(1)(a) of the PC & PNDT Act, the cognizance can be taken by a Court on a complaint made for the offence under the said Act. The said complaint can be made either by the authorities specified under Section 17(2)(3) & 28(1)(a) or by the person in a manner as specified in Section 28(1)(b), for setting up a criminal action of an offence under PC & PNDT Act. The case at hands relates to Section 28(1)(a), therefore, it can safely be concluded that the complaint must be signed by the appropriate authorities or appropriate authority or the person notified by the Central Government or the State Government or authorised by the appropriate authority by notification, though its personal presentation is not required.