Dr. Manju Parveen vs State Of U.P. And Another
2017 Latest Caselaw 320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 48
 

 
Case :- APPLICATION U/S 482 No. - 14107 of 2017
 
Applicant :- Dr. Manju Parveen
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Nipun Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Surya Prakash Kesarwani,J.

Heard learned counsel for the applicant and the learned A.G.A.

This application has been filed under Section 482 Cr.P.C. praying to quash the impugned order dated 9.2.2017 in Criminal Revision No.300 of 2016 (Dr. Manju Parveen Vs. State of U.P. and another), passed by the learned Additional District and Sessions Judge, Court No.8, Muzaffarnagar as well as the summoning order dated 19.2.2016, in case no.8598/9 of 2015 (Dr. B.K. Ojha Vs. Dr. Manju Parveen) under Sections 23 and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, passed by the learned C.J.M., Muzaffarnagar. The applicant has also prayed to quash the entire proceedings of the aforesaid complaint case.

Submission of learned counsel for the applicant is that on the basis of an inspection dated 29.9.2015 a show cause notice was issued to the applicant for cancellation of registration under the aforesaid Act and by order dated 5.10.2015 the registration of the applicant was cancelled with immediate effect. Against the aforesaid order of cancellation of registration, the applicant filed an appeal no.55 of 2015, which was dismissed by the appellate authority vide order dated 20.7.2016. The applicant filed Writ C No.48110 of 2016 (Vimla Memorial Hospital and another Vs. State of U.P. and 3 others) to challenge the aforesaid two orders. By order dated 18.10.2016, the Writ Court stayed the operation of the cancellation order dated 5.10.2015 and appellate order dated 20.7.2016. On these facts, learned counsel for the applicant submits that since the order of cancellation of registration has been stayed by the Writ Court and as such continuation of criminal proceedings pursuant to the impugned summoning order dated 19.2.2016 in complaint case no.8598/9 of 2015 as been affirmed by the Revisional Order dated 9.2.2017, passed in Criminal Revision No.300 of 2016, is an abuse of process of Court and, therefore, deserves to be quashed. He, further submits that the complaint itself is malicious and no offence has been made out and, therefore, the entire proceedings deserves to be quashed.

Learned counsel for the applicant has also relied upon a decision of Aurangabad Bench of Bombay High Court in Criminal Revision no.1381 of 2015 (Dr. Sai Vs.The State of Maharashtra and another) decided on 27.9.2016. On the basis of this judgment he submits that minor discrepancies in not properly filing up form or lacking of some details without there being any criminal intent, can not even prima facie constitute any offence under the Act and, therefore, the complaint case filed by the opposite party no.2 deserves to be quashed.

Learned A.G.A. submits that cancellation of registration is an entirely different proceedings than the complaint case filed by the opposite party no.2 which has been filed due to commission of offence under the Act by the applicant. He submits that the prima facie complaint discloses commission of offence by the applicant and, therefore, the summoning order can not be interfered under Section 482 Cr.P.C.

I have carefully considered the submission of learned counsel for the parties.

Briefly stated the facts of the present case are that inspection of Vimla Memorial Hospital, Ansari Road, P.S. - Kotwali, District, Muzaffarnagar was conducted on 29.9.2015, by an authorised team consisting of the Additional C.M.O., City Magistrate, Members of National Inspection Committee of the Government of India and Joint Director, Family Welfare Directorate, U.P. Lucknow. Several discrepancies were allegedly found in the said inspection. Consequently, two actions have been initiated against the applicant. First action initiated was the proceedings for cancellation of registration under the Act. Second proceedings was initiated by filing a complaint case no.8598/9 of 2015 for commission of offence under the Act. In the present case this Court is concerned with a criminal complaint case filed by the opposite party no.2 against the applicant.

The complaint case was filed by the opposite party no.2 against the applicant on 14.10.2015. In paragraph 2 of the complaint, five allegations had been made against the applicant, namely, at the time of inspection Form - F available at the Ultra Sound were not found to be fully filled up, the register prepared under the Act does not contain any entry after 23.8.2015, Ultra sound of a lady patient named "Bharti" was done in the night but no Form - F was filled up, the applicant has admitted that Form "F" was not filled up for the Ultra Sound done in the night and that she has no record of U.S.G. for last two years nor any films have been preserved nor any report have been given to patients. It has further been alleged in the complaint that during inspection, the applicant had given a letter to the District Magistrate in which also it was admitted that U.S.G. register had not been maintained till September, 2015. Briefly on these allegations, a complaint case was filed by the opposite party No.2 which is subject matter of challenge in the present application.

The impugned summoning order dated 19.2.2016 was passed by the learned C.J.M., Muzaffarnagar after due consideration to the complaint, the statement of the complainant under Section 200 Cr.P.C., the evidence of witnesses under Section 202 Cr.P.C. and documentary evidences. The learned C.J.M., prima facie found commission of offence under Sections 23 and 25 of the Act and consequently the applicant was summoned by the impugned summoning order dated 19.2.2016. The applicant filed the Criminal Revision No.300 of 2016 in the Court of learned Additional Session Judge, Court No.8, Muzaffarnagar to challenge the aforesaid summoning order.

Learned Additional District and Sessions Judge considered each and every argument raised by the applicant and found no infirmity in the impugned summoning order. Consequently, the Criminal Revision filed by the applicant was dismissed by order dated 9.2.2017.

Aggrieved with the summoning order as well as order passed in the aforesaid Criminal Revision applicant has filed the present application.

Perusal of the facts stated in the complaint prima facie shows that the applicant has not maintained records as required under Section 29 of the Act and has also not made it available to the inspecting team or the authorities. That apart Form F was not filled up. The complaint case has been filed for alleged commission of offence under Sections 23 and 25 of the Act.

Perusal of the complaint and the evidence on record shows that the impugned summoning order does not suffer from any infirmity inasmuch as the Court below has found prima facie commission of offence. The conclusion reached by the court below is based on consideration of complaint and evidences on record. In Criminal Revision the revisional court passed a detailed order considering each and every argument of the applicant and found that there were sufficient ground to summon the applicant.

The scope of interference under Section 482 Cr.P.C. at the summoning stage is limited as has been authoritatively explained by Hon'ble Supreme Court in several judgments. At this stage only a prima facie case is to be seen in the light of the law laid down by Supreme Court in the cases of R.P. Kapur vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.

The judgment of Aurangabad Bench of Bombay High Court relied by the applicant appears to be no help to the applicant. The facts on the basis of which the proceedings was initiated as was before the Aurangabad Bench of Bombay High Court has been narrated in paragraph 4 of the judgment in the case of Dr. Sai (supra) which would show that merely certain minor discrepancies were found. That was not a case of non maintenance of mandatory records and register and other discrepancies constituting criminal offence. Minor discrepancies noted in paragraph 4 of the judgment in the case of Dr. Sai (supra) was further discussed in paragraph 19 of the judgment. In paragraph 20 a finding has been specifically recorded that allegation made in the complaint no where discloses that the applicant was found to have acted in violation of Section 29 and destroyed the record before the period prescribed under the said provision. It was further observed that on the allegation made in the complaint the violation of Section 29 of the said Act is not attracted. In the present set of facts involved in the impugned complaint case, the allegations are quite specific supported by documentary and oral evidence brought on record to disclose prima facie commission of offence under the Act.

In view of the above discussion, I do not find any infirmity in the impugned summoning order or the order passed in the criminal revision.

After the order was dictated, learned counsel for the applicant submits that the applicant shall appear and surrender before the court concerned and shall apply for bail and for which protection for some time may be provided.

Learned A.G.A. has no objection to the aforesaid request.

Considering the aforesaid submission, it is observed that in case the applicant surrenders before the court below and applies for bail within 30 days from today, the same shall be considered and decided in view of the settled law. For a period of 30 days from today, or till disposal of the bail application, whichever is earlier, no coercive action shall be taken against the applicant.

It is made clear that no further time shall be allowed to the applicant for surrender before the court concerned.

With the above observations, the application stands disposed of.

Order Date :- 9.5.2017/vkg