Gujarat High Court
Devayatbhai Masribhai Chopda vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/21712/2019 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 21712 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 481 of 2020
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DEVAYATBHAI MASRIBHAI CHOPDA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ADITYA A CHOKSI(7835) for the Applicant(s) No. 1,2,3,4,5,6
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APPfor the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/07/2025
ORAL ORDER
1. Since the issues involved in both petitions are similar in nature and arise out of one and same complaint having connected facts, with the consent of learned advocate for both the sides, they are heard together and are being disposed of by this common order.
2 By way of the present petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C."), the petitioners seek to quash the Criminal Case No.433 of 2019 initiated before learned Additional Chief Judicial Magistrate at Talaja, District Bhavnagar and order below Exh. 1 dated 25.6.2019.
3. Learned advocate Mr. Aditya A. Choksi, appearing for the petitioners, seeks quashment of the process issued in Criminal Case No. 433 of 2019 instituted under Section 23 of the Pre-conception Page 1 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025 NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, "the Act of 1994"), alleging commission of offences under Sections 3 and 26 of the said Act read with Rule 3(3) (1) of the Rules framed thereunder.
3.1 He has primarily contended that the Panch Rojkam drawn by the complainant during the inspection of Samarpan General Hospital and Maternity Home (hereinafter referred to as "Samarpan") does not disclose that any pre-natal diagnostic procedures or techniques were conducted or that any test, diagnostic or otherwise, was being carried out at the time of inspection.
3.2. Referring to Panch Rojkam (Page 35) in Criminal Miscellaneous Application No. 481 of 2020, it is submitted that one Dr. Bhupat D. Chopda, a certified BHMS practitioner, was merely examining a female patient. Although a sonography machine was found switched on in an adjacent room, there is no reference or indication of any diagnostic procedure or pre-natal test being conducted. Hence, even on a prima facie assessment, the essential ingredients of the alleged offences are not attracted.
3.3. It is further submitted that the Samarpan Seva Trust itself has not been arraigned as an accused. Instead, the trustees of the Samarpan Seva Trust, who can at best be vicariously liable, have been impleaded without the Trust--which runs the said hospital-- being made a party. In the absence of arraigning the principal entity, i.e., the Samarpan Seva Trust, which falls within the definition of a 'company' under the Act, the prosecution against its trustees in their personal and individual capacity is not legally Page 2 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025 NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined tenable. Therefore, the continuation of criminal proceedings against the petitioners suffers from manifest legal infirmity and deserves to be quashed.
3.4. Learned advocate Mr. Aditya A. Chokshi further submitted that, as per the Panch Rojkam, one Nitaben Gopalbhai Samnka was under medical examination; however, the Appropriate Authority failed to record her statement during the course of inquiry. This omission, it is submitted, vitiates the entire proceeding and renders the filing of the complaint against the petitioners nothing short of an abuse of the process of law.
3.5. He further contended that a Coordinate Bench of this Court, while adjudicating Special Criminal Application No. 9304 of 2022 concerning the release of the sonography machine seized by the Appropriate Authority in very same inspection, has made a specific observation to the effect that the petitioner, Dr. Bhupat D. Chopda, was examining a pregnant woman in the clinical room, whereas the sonography machine was located in an adjacent room. The Bench further noted that the petitioner was not performing any sonographic examination or pre-natal diagnostic test at the relevant time.
3.6. Such observations, according to learned advocate Mr. Choksi, carry substantial weight and go to the root of the matter, indicating that the petitioner was not involved in any activity prohibited under the provisions of the Act of 1994. Therefore, the continuation of the impugned criminal proceedings would result in grave miscarriage of justice.
Page 3 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined 3.7. In support of his contentions, learned advocate Mr. Choksi placed on record a compilation of brief notes of arguments along with reliance on authoritative pronouncements of the Hon'ble Supreme Court, including:- Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749; Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420; Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609; Aneeta Hada v. Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661; and Bijaya Manjari Satpathy v. State of Odisha, 2022 SCC OnLine Ori 4092.
3.8. Relying on the ratio laid down in the aforesaid decisions, learned advocate Mr. Choksi submitted that the present proceedings deserve to be quashed in exercise of the inherent jurisdiction of this Court under Section 482 of the CrPC, and accordingly prayed for the same.
4. Today at the time of hearing, learned advocate Mr. N.J. Shah is absent. On the previous occasion, when the matter was taken up for hearing, in view of the absence of learned advocate Mr. N.J. Shah appearing on behalf of respondent No.2, this Court was constrained to pass the following order:-
"Report tendered by learned APP is taken on record. When the matter is taken up for hearing, learned advocate Mr.N.J.Shah for respondent no.2 is absent, yet as a last chance, the matter is adjourned to 03.07.2025. To be listed in separate board. It is clarified that on the next date the matter proceed further even in absence of learned advocate for respondent no.2. It will be open for respondent no.2 to make necessary arrangement for representation, if it so wishes. It is clarified that no chit for adjournment either in form of leave note or sick note of learned advocate shall be accepted."Page 4 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025
NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined 4.1. In view of the above, there is no argument of the learned advocate for the respondent No.2.
5. Learned APP Mr. Chintan Dave submitted to pass the necessary order in the above facts and circumstances of the case.
6. I have heard learned advocates for both the sides. I may refer the relevant part of the Panch Rojkam carried by the appropriate authority as under:-
"Today on 21/06/2019, Friday at about 10.50 o'clock in the morning, I - Sub District Appropriate Authority and Taluka Health Officer, Bhavnagar came to this clinic/hospital - Samarpan General Hospital and Maternity Home, Talaja, for inspection of the hospital as per order No. DP/PH/PNDT/343/19, dated 17/6/2019 of the District Appropriate Authority and Chief District Health Officer. After coming into the clinic, I entered into the chamber of Dr. Bhupat D. Chopda (BHMS) on the left side and Dr. Bhupat D. Chopda (BHMS) was examining a pregnant lady named Nitaben Gopalbhai Samnaka, village Rathli and the USG machine - SAMSUNG- Sonoacex7, USS-SAX7E3U/IN, S. NO. SOY1M3-HK 300023V placed in the sonography room adjacent to the clinic room was on/in working condition. Therefore, the above mentioned sonography machine is sealed in the presence of the following panchas for violation of PC & PNDT Act, 1994."
6.1. What emerges from the Panch Rojkam is that accused No.1, Dr. Bhupat D. Chopda, who holds a BHMS qualification, was examining a pregnant woman, namely Nitaben Gopalbhai Samnka, in an adjacent clinical chamber. While the sonography machine was found to be switched on in the adjoining room, it is not the case of the prosecution that said sonography machine was being utilized for conducting any pre-natal diagnostic procedure or test at the relevant time.
Page 5 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined 6.2. It is pertinent to note that Section 2(j) of the Act of 1994, defines 'pre-natal diagnostic procedures' in the following terms:-
"Pre-natal diagnostic techniques includes all pre-natal diagnostic procedures and pre-natal diagnostic tests;"
6.3. Section 2(I) defines pre-natal diagnostic procedures which is as under:-
"pre-natal diagnostic procedures" means all gynaecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, blood or any other tissue or fluid of a man, or of a woman for being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception;"
6.4. Section 2(k) defines pre-natal diagnostic test which is as under:-
"pre-natal diagnostic test" means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases;"
6.5. In order to bring the accused within the four corners of Section 3 of the Act of 1994, it is incumbent upon the Appropriate Page 6 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025 NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined Authority or the complainant to prima facie establish that the diagnostic procedures, tests, or techniques enumerated under the Act were actually conducted or attempted at the time of inspection of the hospital premises.
6.6. It is not in dispute that Samarpan hospital is managed by Dr. Bhupat D. Chopda, who holds a BHMS qualification and is not a certified gynecologist, thereby lacking authority to independently perform any of the diagnostic procedures envisaged under the Act of 1994. Nevertheless, he is duly registered as the proprietor and is authorized to run Samarpan hospital. Learned advocate Mr. Choksi has placed on record the hospital's registration certificate issued under the relevant provisions of the Act, wherein Dr. Bhupat D. Chopda is reflected as the registered owner, and Dr. Manishbhai Valaniya is designated as the authorized person to operate the sonography machine.
6.7. Crucially, it is not the allegation of the Appropriate Authority that Dr. Bhupat D. Chopda had unauthorizedly operated the sonography machine or that he conducted any pre-natal diagnostic procedure, test, or technique as defined under Section 2(J), 2(I), 2(k) of the Act. On a holistic appraisal of the record, there is a conspicuous absence of any material or cogent evidence indicating that Dr. Bhupat D. Chopda, while examining the pregnant woman Nitaben Gopalbhai Samnka, carried out or attempted to carry out any diagnostic technique or procedure falling within the scope of the Act.
6.8. It further emerges from the recorded statement of Dr. Bhupat D. Chopda--obtained by the Appropriate Authority in exercise of Page 7 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025 NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined powers conferred under the Act of 1994--that he had merely utilized a Doppler device to monitor the fetal heartbeat, a practice which per se does not fall within the ambit of "pre-natal diagnostic procedures" as statutorily defined.
6.9. Accordingly, the initiation and continuation of prosecution against Dr. Bhupat D. Chopda is not legally sustainable and is liable to be quashed.
6.10. With regard to the remaining accused--trustees of Shri Samarpan Charitable Trust--it is an admitted position that the trust itself has not been arrayed as an accused. The trustees have been impleaded solely on the basis of their fiduciary roles, purportedly making them vicariously liable. However, the law is well-settled that in order to hold trustees vicariously liable for acts attributed to the trust, the trust entity--analogous to a company--must be arraigned as an accused. Absent such impleadment, the prosecution of the trustees in their individual capacity is legally impermissible.
6.11. This principle has been unequivocally laid down by the Hon'ble Apex Court in Mehmood Ul Rehman (supra), wherein, after surveying the earlier precedents, the Court held as under:
"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, Page 8 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025 NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.
21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected.
22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court.The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society.
Hence, the process of criminal court shall not be made a weapon of harassment.
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23. Having gone through the order passed by the Magistrate, we are. satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated.Though no formal or speaking or reasoned orders are required at the stage of Sections 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. The question is not about veracity of the allegations, but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate."
6.12. It would be apposite to refer the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, wherein, in Paragraph 102, it is held as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Ch. XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under sec. 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against Page 10 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025 NEUTRAL CITATION R/CR.MA/21712/2019 ORDER DATED: 03/07/2025 undefined the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec. 156(1) of the Code except under an order of a Magistrate within the purview of sec. 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec. 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. In view of the above, both aforesaid petitions deserves to be allowed, and they are accordingly ALLOWED. The Criminal Case No.433 of 2019 along with all subsequent proceedings arising from it, is hereby quashed and set aside. Rule is made Absolute. Direct service is permitted.
(J. C. DOSHI,J) MANISH MISHRA Page 11 of 11 Uploaded by MANISH MISHRA(HC01776) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:05:21 IST 2025