912-REVN-554-2015-APPR-66-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.554 OF 2015
DR.KAVITA PRAMOD KAMBLE (LONDHE) )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA & ANR. )...RESPONDENTS
Mr.M.S.Mohite a/w. Mr.J.Shekhar i/b. J.Shekhar & Co., Advocate
for the Applicant.
Mr.A.R.Kapadnis, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 30th NOVEMBER 2017
JUDGMENT :
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) avk 1/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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 avk 2/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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.
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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 avk 4/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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 avk 5/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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 avk 6/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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 avk 7/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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. 7 I have carefully considered the rival submissions and also perused the entire record and proceedings. 8 At the outset let us put on record what are the averments made in the criminal complaint filed by PW1 Dr.C.D.Veer, Medical Superintendent, Sub-District Hospital, Karmala, against the revision petitioner/original accused. Paragraph 1 of that complaint needs reproduction and it reads thus :
"1) I, Dr.C.D.Veer, Medical Superintendent, Sub-Dist. Hospital, Karmala, and Dist. Solapur is appointed at Takuka appropriate authority for Karmala Taluka by Govt. notification under Chapter V."
avk 8/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc It is further averred in the complaint lodged by complainant/PW1 Dr.C.D.Veer that in discharge of his duties under the PCPNDT Act, he came to know that the revision petitioner/accused is possibly indulged in illegal procedure of detection of sex of foetus of some pregnant ladies, and therefore, he decided to sent a decoy patient with the help of Shaila Jadhav, PW4 Maya Pawar and PW2 Prerna Bhillare. PW2 Prerna Bhillare, being a pregnant lady, was selected as a decoy patient. She approached the revision petitioner/ accused on 24th August 2010 with Shaila Jadhav and PW4 Maya Pawar. The revision petitioner/accused subjected PW2 Prerna Bhillare to sonography test and told her that the foetus is male.
Rs.4,000/- were paid to the revision petitioner/accused, but no receipt was issued to PW2 Prerna Bhillare. Shaila Jadhav then reported the incident to PW5 Vidyut Varkhedkar, Sub-Divisional Officer, on 25th August 2010. PW5 Vidyut Varkhedkar, then, conducted inspection of the Krushna hospital and directed the complainant to take legal action. Statements of PW2 Prerna Bhillare and PW4 Maya Pawar were recorded. Sonography machine was sealed. Search and seizure was conducted. With avk 9/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc this, it is further pleaded in the complaint that offences are inclusive of sex determination, non-displaying of board non- availability of PCPNDT Act, non-filling of Form No.F, non-signing of declaration, non-obtaining the consent and non-submission of report to the Appropriate Authority. This is the gist of entire pleading in the criminal complaint filed against the revision petitioner/accused.
9 After filing of the complaint, evidence before Charge was recorded. Charge was framed and explained to the revision petitioner/accused. She pleaded not guilty and claimed trial. Then, following witnesses came to be examined by the prosecution, apart from adducing documentary evidence.
a) PW1 Dr.C.D.Veer - the complainant,
b) PW2 Prerna Bhillare - the decoy patient,
c) PW3 Dr.Prashant Karanjkar - panch to seizures,
d) PW4 Maya Pawar - the person who accompanied the
decoy patient,
e) PW5 Vidyut Varkhedkar - the Sub-Divisional Officer.
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10 After hearing the parties, on recording statements of
the revision petitioner/accused under Section 313 of the Cr.P.C., the learned trial Magistrate was pleased to hold that the complainant is an Appropriate Authority to lodge the complaint for violation of the PCPNDT Act as well as PNDT Rules. It is further held that the revision petitioner/accused had determined the sex of the foetus by taking sonography of PW2 Prerna Bhillare and communicated the gender of the foetus as male. The learned trial Magistrate further held that the revision petitioner/accused has failed to maintain record in Forms "G" and "F". She failed to sent monthly report to the Appropriate Authority. The revision petitioner/accused failed to display her registration certification and notice for information of the public that disclosure of the sex of the foetus is prohibited under the law. It is further held by the learned trial Magistrate that the revision petitioner/accused failed to keep a copy of the PCPNDT Act and PNDT Rules framed thereunder, at her hospital. The learned trial Magistrate concluded that the revision petitioner/accused had violated the provisions of Sections 4(3), 5, 6, 19(4) of the PCPNDT Act and the provisions of avk 11/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc Rules 9(4), 10, 10(1A), 17(1) and 17(2) of PNDT Rules. Accordingly, she came to be convicted and sentenced as indicated in the opening paragraph of the judgment.
11 The revision petitioner/accused has invoked revisional jurisdiction of this court to assail conviction and sentence recorded against him by both courts below. It is well settled that normally revisional jurisdiction is to be exercised only in exceptional cases where there is glaring defect in procedure and where there is manifest error on point of law which has consequently resulted in miscarriage of justice. The evidence cannot be re-appreciated or re-appraised and finding of fact can be decided only if it is perverse or if it suffers from error of law. Sufficiency of evidence cannot be a ground to set aside the finding of fact recorded by the court. If on the basis of evidence on record no reasonable man could come to the conclusion arrived at by the courts below, the revisional court can interfere with the impugned judgments and orders. Keeping in mind this limited extent of jurisdiction of this court in the case in hand, let us ascertain avk 12/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc whether the impugned judgments and orders of the courts below suffer from perversity or error of law.
12 The main contention of the revision petitioner/accused before the Appellate Court was to the effect that the complainant is not an Appropriate Authority under the PCPNDT Act and therefore, the complaint, as framed and filed, is not maintainable. Other grounds on merits of the prosecution case were also urged before the learned Appellate Court. The learned Appellate Court reproduced the provisions of Sections 28 and 17 of the PCPNDT Act and concluded that by virtue of the Notification relied by the accused, the Sub-Divisional Officer i.e. PW5 Vidyut Varkhedkar was also an Appropriate Authority. The learned Appellate Court further held that the Medical Superintendent of Rural hospital is equal to that of Sub-District Hospital. The learned Appellate Court then held that the learned trial court rightly appreciated the factual scenario in the light of provisions of Sections 17 and 28 of the PCPNDT Act and concluded that PW1 Dr.C.D.Veer is competent to lodge the complaint.
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13 As the learned Appellate court has not given any
independent reasons on this aspect, it is apposite to quote that the learned trial Magistrate, by the impugned judgment and order, came to the conclusion that the Notification dated 6th November 2001 (Exhibit 50) is the Notification appointing the Superintendent of the Taluka Hospital as the "Appropriate Authority". The learned trial Magistrate further held that the State had appointed the Medical Superintendent of the Sub- District Hospital as Appropriate Authority on 26th July 2011 (Exhibit 163). It is further observed that there was no Notification which empowered the Superintendent of the Sub-District Hospital to act as Appropriate Authority under Section 17 of the PCPNDT Act. By placing reliance on observations of this court in Criminal Writ Petition No.3509 of 2011 decided on 11th June 2013, the learned trial Magistrate came to the conclusion that Dr.C.D.Veer, Medical Superintendent of Sub-District Hospital is an Appropriate Authority. The learned trial Magistrate further observed that PW1 Dr.C.D.Veer was also authorized to file complaint as per the directions given by PW5 Vidyut Varkhedka, Sub-Divisional Officer, avk 14/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc vide letter at Exhibit 25, and therefore, he is an Appropriate Authority under the PCPNDT Act.
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 avk 15/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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 avk 16/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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:
"17. Appropriate Authority and Advisory committee :
(1) ...........
(2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide. (3) The officers appointed as Appropriate Authorities under subsection (1) or sub-section (2) shall be, -
(a) when appointed for the whole of the State or the Union territory,consisting of the following three members -
(i) an officer of or above the rank of the Joint Director of Health and Family Welfare - Chairperson;
(ii) an eminent woman representing women's organization; and;
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(iii) an officer of Law Department of the State or the Union territory concerned: Provided that it shall be the duty of the State or the Union territory concerned to constitute multi- member State or Union territory level appropriate authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prohibition of Misuse) Amendment Act, 2002; Provided further that any vacancy occurring therein shall be filed within three months of the occurrence;
(b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be may deem fit."
16 Perusal of these provisions makes it clear that the State level Appropriate Authority is required to be multi-member Authority but if an Appropriate Authority is appointed for any part of the State, then, it can comprise of officer of such rank, as the State or Central Government as the case may be, deem fit. Thus, any officer can be appointe by the State as an Appropriate avk 18/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc Authority for any part of the State by notification in the Official Gazette.
17 At this juncture, it is apposite to note that as per the provisions of Section 17(4) of the PCPNDT Act, the Appropriate Authority is required to discharge several functions and one amongst them is to investigate complaint for breach of the provisions of the PCPNDT Act as well as the Rules framed thereunder and to take immediate action. Section 19 provides for issuance of certificate of Registration by the Appropriate Authority, after holding necessary enquiry and after giving due regard to the advice of the Advisory Committee. Section 20 makes a provision for cancellation or suspension of the Certificate of Registration by the Appropriate Authority after following due process as prescribed therein. Section 17-A of the PCPNDT Act confers power of summoning any person in possession of any information relating to violation of the provisions of the Act and the Rules, apart from direction for production of documents or material object and issuance of Search Warrant. Section 30 empowers the Appropriate Authority for Search and Seizure of record etc., avk 19/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc including any material object, if it has reason to believe, that the same may furnish evidence of the commission of an offence punishable under the said Act and the Rules. Suffice it to put on record that the Appropriate Authority appointed by the State is a kingpin to carry out several duties and functions under the PCPNDT Act and is mainly responsible for the implementation of the provisions of the said Act.
18 In order to examine whether there is an express legal bar under the PCPNDT Act for entertaining criminal complaint instituted against the petitioner vide Regular Criminal Case No. 318 of 2011 one will have to consider the provisions of Sections 27 and 28 from Chapter VII of the said Act which deals with the offences and penalties. For the sake of convenience it is necessary to re-produce the provisions of Sections 27 and 28 of the PCPNDT Act which reads thus :-
"27 Offence to be cognizable, non-bailable and non compoundable ─ Every offence under this Act shall be cognizable, non-bailable and non- compoundable."
avk 20/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc "28 Cognizance of offences ─ (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 authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the Court. Explanation - For the purpose of this clause, "person" includes a social organisation. (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. "
19 Perusal of provisions of Section 28 shows that the Court is debarred from taking cognizance of an offence under the PCPNDT Act except on the complaint made by the concerned avk 21/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc Appropriate Authority or by an officer authorized for making complaint by the Central or the State Government, as the case may be. Even any officer authorized by the Appropriate Authority for instituting the criminal proceedings can also lodge the complaint. In the case in hand, as stated in foregoing para, it is not the case of prosecution that the private complaint bearing Regular Criminal Case No. 318 of 2011 is instituted by an officer under the authorization of the concerned Appropriate Authority. Similarly, it was not the case of respondent No.2/original complainant that the said complaint was instituted by the complainant he being authorized in that behalf by the State Government. It is specific case of the prosecution as seen from the perusal of pleadings in the complaint bearing No. Regular Criminal Case No.318 of 2011 that respondent no.2/original complainant Dr.C.D.Veer had lodged the said criminal proceedings as a holder of the post of the Medical Superintendent, Sub-District Hospital, Karmala. Version of the prosecution unfolded during adducing evidence is to the effect that the post of Medical Superintendent, Sub-District Hospital, Karmala is notified by the avk 22/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc State Government in the Official Gazette as an Appropriate Authority in view of the notification dated 6th November 2001 (Exhibit 50) issued by the Public Health Department of the State of Maharashtra.
20 Careful perusal of the provisions of Section 28 of the PCPNDT Act which deals with cognizance of offences under the said Act reveals that it prohibits initiation of prosecution for any offence under the said Act except on a complaint made by the Appropriate Authority concerned, or any officer authorized for the said purpose by the Central or State Government as the case may be or by any officer authorized for this purpose by the Appropriate Authority. No doubt, apart from these persons, a private person can also institute prosecution under this Act after fulfilling the conditions prescribed by Section 28 of the said Act. Thus, provision contained in Section 28(1) of the PCPNDT Act does not contemplate the lodging of a private criminal complaint for the offences under the said Act by any person other than the person empowered in the said Section. The bar for institution of avk 23/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc prosecution is at the threshold itself and the Court taking cognizance of an offence punishable under the PCPNDT Act is duty bound to satisfy itself that the complaint is lodged by any of the Officer/person authorized to do so as per the provision of Section 28 of the PCPNDT Act. Provision of Section 28 of the PCPNDT Act mandates that the complaint for the offence punishable under the said Act can only be made by the Officers/persons authorized under the said Section. In absence of such duly filed criminal complaint, the court is not empowered to take cognizance of the alleged offences. So far as the instant case is concerned, respondent no.2 Dr.C.D.Veer has lodged the private criminal complaint bearing Regular Criminal Case No. 318 of 2011 purportedly acting as an Appropriate Authority being holder of the post of Medical Superintendent, Sub-District Hospital, Karmala District, Solapur.
21 It is trite that if the statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be avk 24/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc deemed to have been prohibited. This proposition of law was stated firstly in Taylor vs. Taylor 1. The Judicial Committee adopted it in Nazir Ahmed vs. King Emperor 2 and then this principle is followed by the Hon'ble Apex Court in series of judgments.
22 In the matter of Hussein Ghadially @ M.H.G.A. Shaikh & Ors. vs. State Of Gujarat 3, in para 17 of its judgment, Hon'ble Supreme Court has held thus:-
''A careful reading of the above leaves no manner of doubt that the provision starts with a non obstante clause and is couched in negative phraseology. It forbids recording of information about the commission of offences under TADA by the Police without the prior approval of the District Superintendent of Police. The question is whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. Our answer to that question is in the negative. The reasons are 1 (1876) 1 Ch.D.426 2 (1936) 38 Bom.L.R. 987 3 2014 AIR SCW 4236 avk 25/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc not far to seek. We say so firstly because the statute vests the grant approval in an authority specifically designated for the purpose. That being so, no one except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the Statute will have the effect of re-writing the provision and defeating the legislature purpose behind the same - a course that is legally impermissible. In Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and Ors. vs. Director General of Civil Aviation and Ors . (2011) 5 SCC 435 , this Court declared that even senior officials cannot provide any guidelines or direction to the authority under the statute to act in a particular manner."
23 At this juncture, it is apposite to quote relevant observation of the Hon'ble Apex Court in the case of A.K. Roy & another vs. State of Punjab and Others 4. While considering the provision of Section 20(1) of the Prevention of Food Adulteration Act 1954 dealing with cognizance and trial of offences under the said Act, it is held thus, by the Hon'ble Apex Court :-
4 AIR 1986 SC 2160
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"A careful analysis of the language of S.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 prosecution for an offence under the Act. The provision contained in S.20(1) of the Act does not contemplate the institution of a prosecution by any person other than those designated. The terms of S.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 S.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 avk 27/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc 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 that way or not at all. Other modes of performance are necessarily forbidden. The intention of the Legislature in enacting S.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. "
24 Keeping in mind this exposition of the Hon'ble Apex Court, it becomes clear that as Section 28 of the PCPNDT Act in terms provides for the category of persons who are empowered to avk 28/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc institute the prosecution for the offences under the said Act, no person other than the one falling in the category of persons mentioned in Section 28 of the PCPNDT Act is empowered to institute the prosecution. The complaint for the offences under the PCPNDT Act as such can be filed only by the Appropriate Authority concerned or by any officer authorized for this purpose by the Central or the State Government as the case may be, or by the Appropriate Authority apart from a private person on giving notice of not less than 15 days in the prescribed manner to the Appropriate Authority. Unless and until the complaint for the offence punishable under the PCPNDT Act is instituted by any of these Officers/persons, the Court is not empowered to take cognizance of the offence alleged in the said complaint. Any other officer howsoever high ranking he may be in the hierarchy cannot institute the prosecution for the offence punishable under the PCPNDT Act and complaint if any made by such unauthorised complainant cannot be validly entertained.
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25 Now let us examine whether the post of Medical
Superintendent, Sub-District Hospital, Karmala, District Solapur is notified as an Appropriate Authority and whether respondent no.2/original complainant Dr.C.D.Veer who was holding this post can lodge the complaint in respect of the offence punishable under the PCPNDT Act so as to enable the Court to validly take cognizance of the offences alleged therein. The Notification dated 6th November 2001 (Exhibit 50) issued by the Public Health Department of the State Government proved during the course of his evidence by the respondent no.2/original complainant for demonstrating that the complainant Dr.C.D.Veer is an Appropriate Authority for area under the jurisdiction of the Sub-District, Hospital at Karmala Municipal reads thus : -
" NOTIFICATION
Public Health Department,
Mantralaya, Mumbai 400 032
th
Dated 6
November 2001
No.PRACHINI-2001/1545/CR-349 FW-III,
In exercise of the powers conferred by sub-
Pre-natal section (2) read with sub- section (3) of Diagnostic Section 17 of the Pre-natal Diagnostic Techniques Techniques (Regulation and Prevention avk 30/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc (Regulation of Misuse) Act, 1994 (57 of 1994) and of and all of other powers enabling it in that Prevention behalf, the 1994 Government of of Misuse) Maharashtra is hereby Please to appoint Act, 1994 the Medical Superintendent of Rural Hospital at every Taluka level in the State of Maharashtra, to be the Appropriate Authority for the respective area under jurisdiction of the purpose of the said ACT.
By order in the name of the Governor of Maharashtra Sd/-
(S.C.Mondkar) Under Secretary to Government of Maharashtra To, The Secretary to Governor, The Private Secretary to Chief Minister, The Private Secretary to Deputy Chief Minister, The Private Secretary to Minister (Public Health) The Private Secretary to State Minister (Public Health) The Private Secretary to all Ministers/ State Ministers;
The Chief Secretary, Government of Maharashtra, Mantralaya, Mumbai The Additional Chief Secretary (Home Department), Mantralaya, Mumbai The Director General of Health Services, Mumbai The Additional Director of Health Services, Family, Welfare, Maternal and Child Health & School Health, Pune The Director Medical Education & Research, Mumbai The Director General of Information and Public avk 31/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc Relations, Mantralaya, Mumbai The Director Indian Council of Medical Research, New Delhi The Secretary to Government of India, Ministry of Health and Family Welfare, Department of Family Welfare, Nirman Bhavan, New Delhi.
The Joint Director of Health Services, (Medical),Mumbai The Director of Information and Publicity, Maharashtra State, Mumbai, The Medical Superintendent, Rural Hospital(All) The Chairman, State Women Commission, Maharashtra State, Mumbai All Divisional Commissioners / Chief Officers / /Administrators of all Municipal Corporations All Collectors The Deputy Directors of Health Services of all circles, All Civil Surgeons, General Hospitals The Chief Executive officers of all Zilla Parishad The Accountant General, Maharashtra I/II, Mumbai/Nagpur."
26 This Notification dated 6th November 2001 at Exhibit 50 as well as Exhibit 157, makes it clear that the State Government, in exercise of powers conferred by Section 17 of the PCPNDT Act had appointed the "Medical Superintendent of Rural Hospital at every Taluka level" to be the Appropriate Authority for the respective areas under its jurisdiction, for the purpose of PCPNDT Act. This was the Notification prevalent at the time of avk 32/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc lodging the complaint by PW1 Dr.C.D.Veer against the revision petitioner/accused on 13th September 2010. Therefore, the subsequent Notifications, if any, issued after 13 th September 2010 by the State, appointing other Officers as "Appropriate Authority" will not be of any relevance for adjudicating the case in hand. In this view of the matter, the Notification dated 26 th July 2011 (Exhibit 163) in respect of appointment of the Appropriate Authority will not govern the case in hand.
27 Perusal of the complaint makes it explicitly clear that the same was filed by Dr.C.D.Veer in his capacity of the "Taluka Appropriate Authority". It is not pleaded in the complaint bearing no.318 of 2011 that the said complaint is filed by complainant/PW1 Dr.C.D.Veer upon being authorized by an Appropriate Authority. PW1 i.e. complainant Dr.C.D.Veer in the opening paragraph of his evidence has said so in unequivocal terms :
"Since 2009 I am working as a Medical Supdt. at Karmala Sub-Dist. Hospital. I am also appointed as an appropriate authority under the provisions of avk 33/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc Pre-Conception and Pre-natal Diagnostic Techniques Act. By way of a Govt. Reso. of Maharashtra Govt., Public Health Dept., dt.6/11/2001 I am appointed as an appropriate authority. I correct myself that it was a notification. The same is annexed with my complaint."
28 In his cross-examination also, PW1 Dr.C.D.Veer in paragraph 10 as categorically stated that he is vested with the power of the Appropriate Authority as per the Notification issued in the year 2001 which is at Exhibit 50. PW1 Dr.C.D.Veer, on oath, stated that he was working as a Medical Superintendent of the Sub-District Hospital at Karmala. Thus, what is claimed by the prosecution is that the complainant i.e. PW1 Dr.C.D.Veer is an Appropriate Authority appointed by the State as per the provisions of Section 17 of the PCPNDT Act and the complaint case against the revision petitioner/accused is filed by none other than the Appropriate Authority.
29 PW1 Dr.C.D.Veer, in his deposition, has also stated that on 25th August 2010, at about 9.00 p.m. to 9.30 p.m., he had a avk 34/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc call from the Tahsil Office, Karmala, and therefore, he went and met the Sub-Divisional Officer(PW5 Vidyut Varkhedkar). As stated by PW1 Dr.C.D.Veer, then, PW5 Vidyut Varkhedkar - Sub- Divisional Officer had handed over a letter Exhibit 25 to him. The learned trial Magistrate in paragraph 37 of its impugned judgment and order construed this letter as authorization by the Appropriate Authority i.e. the Sub-Divisional Officer to PW1 Dr.C.D.Veer for filing the complaint. Let us, therefore, peruse the letter at Exhibit
25. This letter dated 25 th August 2010 is issued by the Sub- Divisional Officer of MHADA Sub-Division and is addressed to the "Medical Officer, Sub-District Hospital, Karmala, Solapur." After pointing out that on 25th August 2010, at about 6.30 p.m., under instructions from the District Collector, the Sub-Divisional Officer along with the Medical Officer of the Sub-District Hospital, Karmala, Taluka Health Officer, Medical Officer of the Municipal Council and Tahsildar Karmala, inspection of Krushna Hospital owned by the revision petitioner/accused was conducted, the Sub- Divisional Officer i.e. PW5 Vidyut Varkhedkar by this letter has directed the Medical Officer of the Sub-District Hospital, Karmala, avk 35/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc to register offence under the relevant Act in its capacity of the Appropriate Authority. This direction was to the Medical Officer of the Sub-District Hospital, Karmala.
30 Bare perusal of the letter at Exhibit 25 issued by the Sub-Divisional Officer on 25th August 2010 makes it clear that the said letter was not addressed to the complainant i.e. PW1 Dr.C.D.Veer, who was the Medical Superintendent and not the Medical Officer of the said Sub-District Hospital. The letter at Exhibit 25 further makes it clear that the Sub-Divisional Officer, as an Appropriate Authority, has not directed or authorized the Medical Officer of the Sub-District Hospital to make a complaint in respect of violation of the PCPNDT Act and the PNDT Rules framed thereunder against the revision petitioner/accused on her behalf. What is directed to the Medical Officer of the Sub-District Hospital, Karmala, by this letter dated 25th August 2010 by the Sub-Divisional Officer, is to register the offence under the relevant Act in its own capacity as an Appropriate Authority. Thus, the letter dated 25th August 2010 (Exhibit 25) issued by the Sub-
avk 36/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc Divisional Officer to the Medical Officer cannot be construed as a letter by the Appropriate Authority under the PCPNDT Act authorizing the Medical Officer to lodge a complaint in respect of violation of the PCPNDT Act as well as PNDT Rules framed thereunder, on behalf of the Appropriate Authority, leave apart, the fact that the letter at Exhibit 25 does not contain any direction to the complainant i.e. PW1 Dr.C.D.Veer, who happens to be the Medical Superintendent of the Sub-District Hospital, Karmala, and not the Medical Officer. Letter at Exhibit 25 itself makes it crystal clear that there is some other officer who was working at the Sub- District Hospital, Karmala, as the Medical Officer because it is averred in the said letter that on 25th August 2010, at about 6.30 p.m, the hospital of the revision petitioner/accused was inspected by the Sub-Divisional Officer in presence of the Medical Officer of the Sub-District Hospital, Karmala. It is worthwhile to note that evidence of PW1 Dr.C.D.Veer, Medical Superintendent of the said hospital makes it clear that he had not accompanied the Sub- Divisional Officer for inspecting the hospital owned by the revision petitioner/accused on 25th August 2010. This implies that some avk 37/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc officer holding the post of the Medical Officer of the Sub-District Hospital must have accompanied the Sub-Divisional Officer (PW5 Vidyut Varkhedkar) during the course of inspection of the hospital of the revision petitioner/accused. Evidence of complainant PW1 Dr.C.D.Veer makes it clear that he never visited the Sonography Center or the hospital of the revision petitioner/accused on 25 th August 2010, prior to 25th August 2010 or thereafter. Evidence of PW5 Vidyut Varkhedkar makes it clear that the post of the Medical Superintendent and the Medical Officer are different posts. In her cross-examination, PW5 Vidyut Varkhedkar has candidly admitted the fact that the letter at Exhibit 25 was containing instructions to the Medical Officer of the Sub-District Hospital, Karmala, and post of Medical Officer as well as post of Medical Superintendent are different posts. PW5 Vidyut Varkhedkar, Sub-Divisional Officer, has also candidly accepted in her cross-examination the fact that on 25th August 2010, she had not inspected the hospital owned by the revision petitioner/accused in her capacity as an Appropriate Authority. She stated in the cross-examination that she raided that hospital only under the capacity of the Sub-Divisional Officer.
avk 38/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc This makes crystal that even PW5 Vidyut Varkhedkar was not acting under her authority as an Appropriate Authority during inspection of Krushna Hospital owned by the revision petitioner/accused on 25th August 2010. This position of the oral and documentary evidence on record makes it clear that complainant/PW1 Dr.C.D.Veer was neither the Appropriate Authority nor any Officer authorized by the State or the Appropriate Authority for filing the subject criminal complaint against the revision petitioner/accused. 31 The learned trial Magistrate held complainant PW1 Dr.C.D.Veer as an Appropriate Authority by placing reliance on order of this court in Writ Petition No.3509 of 2011 decided on 11th June 2013 by the learned Single Judge of this court. The said petition was filed by the revision petitioner challenging the order framing Charge against her. One of the challenge to the Charge was to the effect that the complainant is not an Appropriate Authority, and therefore, he has no locus to file the complaint. The following are the observations of the learned Single Judge of avk 39/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc this court in order dated 11th June 2013 while deciding the said petition :
"8 Dr.Yashwant Punde, Assistant Director, Health Services, Government of Maharashtra has explained in his affidavit in reply to the above Writ Petition that the subdistrict hospital, Karmala is the Rural Hospital at taluka level, the superintendent of which is the complainant. The said hospital was established in the year 1970 as cottage hospital, Karmala having 30 beds for the purpose of catering to the persons in the taluka being a rural area. Upon issue of Government Resolution dated 13th May, 2003, the beds in the hospital were increased from 30 to 50. Its name was changed to subdistrict hospital, Karmala. However it continued to cater the persons at the taluka level. Rural/ cottage hospital is to be understood as Rural Hospital as per the corrigendum dated 2nd January, 1995 issued by the State Government. The hospital is formed to cater to persons in the rural area of the Karmala. Hence the hospital in which the complainant is the general superintendent is the Rural Hospital entitling the complainant to file a complaint as appropriate authority under the Act."
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"9 Upon seeing that the complaint was
correctly filed by the correct authority, the evidence produced by the complainant would have to be seen..........."
32 It is, thus, clear from these observations while deciding the writ petition challenging framing of the Charge that contents of the affidavit in reply of Dr.Yeshwant Punde, Assistant Director, were reproduced and it was concluded that the complaint is correctly filed by the correct authority. Those observations and the resultant finding is apparently prima facie in nature and it cannot have any bearing on the result of the trial. The criminal case is always decided by considering the evidence adduced by the parties before the court and not by prima facie observations recorded by any court prior to the trial of the subject criminal case. As such, the order dated 11 th June 2013 passed by this court in Writ Petition No.3509 of 2011 whereby the order framing Charge was upheld, cannot be construed as conferring the status of an "Appropriate Authority" on the complainant/PW1 Dr.C.D.Veer, who is not appointed as such by the State by avk 41/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 912-REVN-554-2015-APPR-66-2016.doc following the procedure prescribed by Section 17 of the PCPNDT Act. The Appropriate Authority, as discussed in foregoing paragraphs, is required to be appointed statutorily by the State Government, and that too, by Notification in the Official Gazette. The opinion of affiant Dr.Yeshwant Punde, Assistant Director, cannot confer power of an Appropriate Authority on any officer or post, unless and until such officer or the post held by him is notified by the State Government as an Appropriate Authority by publishing such Notification in the Office Gazette in terms of provisions of Section 17 of the PCPNDT Act. In this view of the matter, prima facie observations recorded in the order dated 11 th June 2013 passed in Writ Petition No.3509 of 2011 is of no assistance to the respondent.
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 avk 42/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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 avk 43/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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 avk 44/47 ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 00:17:15 ::: 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 :
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(i) The revision petition is allowed.
(ii) Impugned Judgments and Orders passed by the Courts below i.e. Judgment and Order dated 28th February 2014 passed by the learned Judicial Magistrate First Class, Karmala District Solapur in Regular Criminal Case No.318 of 2011 as well as the Judgment and Order dated 25th November 2015 passed by the learned Additional Sessions Judge, Barshi in Criminal Appeal No.57 of 2014 (Old Criminal Revision Application No.32 of 2014) thereby convicting the revision petitioner/original accused of offences punishable under Section 23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 for contravention of Section 5(2) and 6, Section 4(3) read with Rule 9(4) and 10(1A) and under Rule 9(8) of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Rules 2003, under Section 5 read with Rule 10, under Rules 19(4), 17(1) and 17(2) of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Rules 2003 and consequently imposing the respective sentences for commission of the said offences; are quashed and set aside.
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(iii) The revision petitioner/accused is acquitted of all offences alleged against her.
(iv) Her bail bond stands cancelled.
(v) In view of disposal of the revision petition, pending Criminal Application therein bearing No.66 of 2016 stands disposed of.
(A. M. BADAR, J.)
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