Doctorr Nishikant Jain vs State Of U.P. And Anothers
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Allahabad High Court

Doctorr Nishikant Jain vs State Of U.P. And Anothers on 23 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:93719
 
Court No. - 91
 

 
Case :- APPLICATION U/S 482 No. - 26862 of 2021
 

 
Applicant :- Doctorr Nishikant Jain
 
Opposite Party :- State Of U.P. And Anothers
 
Counsel for Applicant :- Anupam Dubey,Arun Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Prashant Kumar,J.
 

1. Heard Sri Anoop Trivedi, learned Senior Advocate, assisted by Sri Anupam Dubey learned counsel for the applicant, Sri S.K. Chandraul, the learned AGA for the State-opposite parties and perused the record.

2. By means of the instant application filed under Section 482 Cr.P.C., the applicant has sought quashing of the order dated 13.10.2021 passed by Additional Session Judge/Fast Track Court No.2, Gautambudh Nagar in Criminal Revision No. 52 of 2019 and to quash the order dated 23.01.2019 passed by Chief Judicial Magistrate, Gautam Buddh Nagar in complaint Case No. 4657 of 2018 (Dr. Shishir Jain Additional Chief Medical Officer Vs. Dr. Keshav Ananda and one another) as well as entire proceeding of Case No. 4657 of 2021, under Sections 23 and 25 of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Police Station Noida Sector-24, District Gautambudh Nagar, pending in the court of learned Chief Judicial Magistrate, Gautambudh Nagar.

3. Counsel for the applicant submits that on 20.01.2021 one Mahendra Kumar Singh, City Magistrate along with one Dr. Shirish Jain, Additional Chief Medical Officer, Gautambudh Nagar have conducted an inspection at Deepakshi Nursing and Maternity Home Pvt. Ltd.Noida, District Gautambudh Nagar. During the inspection it was found that the applicant-Nishikant Jain was operating the ultrasound machine and he could not produce any document to show that he has been authorized to operate the machine. Other allegations are of procedural in nature like the authorized Dr. Sonia Dalariya was not there on that point of time. The notice board was not affixed inside the Chamber and accordingly, the complaint was filed by the Additional Chief Medical Officer in the court of Chief Judicial Magistrate, Gautambudh Nagar being complaint Case No. 4657 of 2018 (Dr. Shishir Jain Additional Chief Medical Officer Vs. Dr. Keshav Ananda and one another). After recording the statements of complainant and of his witnesses under Sections 200 and 202 Cr.P.C., applicant has been summoned. Thereafter, the applicant has filed discharge application on 20.10.2018 which was rejected vide order dated 23.01.2019. The said order has been challenged by means of filing Criminal Revision and the trial court vide order dated 13.10.2021 rejected the revision.

4. By means of the instant application, the applicant has challenged the summoning order, order rejecting the discharge application, order by which criminal revision has been dismissed as well as the entire proceedings of the aforesaid complaint case.

5. Counsel for the applicant submits that the evidence which was before the trial court in the shape of statement under Section 244 Cr.P.C., it has been categorically been stated by the witness that he had seen the Doctor i.e. the applicant testing any of the patient there and using the ultrasound machine. He has further stated that he has not found any document showing that the applicant (N.K. Jain) ever operating the ultrasound machine in the said hospital.

6. Counsel for the applicant submits that in the counter affidavit filed by Additional Chief Medical Officer, District Gautambudh Nagar, in paragraph nos. 9 to 12, he has stated as under :

"9. ?? ?? ??????? ?? ??????? 15 ?? ???? ??? ??? ?? ?? ???????? ??? ?? ?????? ?? ??? ??????? ??? ?? ??? ???? ??? ??, ?????? ???? ?????? ?? ????? ??? ??? ?? ??????? ???? ???? ??? ?? ??????? ?? ????? ???????? ??? ?????? ??? ????? ???? ???????? ???? ???? ????

10. ?? ?? ??????? ?? ??????? 16 ?? ???? ??? ???? ?? ?? ??????? ???????? ??????? ??? ???? ???????? ?????? ?? ????? ???? ??? ??, ?????? ????? ???? ????????? ??? ?? ??? ????? ???? ???? ?? ???

11. ?? ?? ??????? ?? ??????? 17 ??? 18 ?? ???? ??? ???? ?? ?? ???????? ?????? ??? ??????? ???? ???? ????? ???? ???

12. ?? ?? ??????? ?? ??????? 19 ?? ???? ??? ???? ?? ?? ???????? ??? ?? ???? ??????? ??? ??? ?? ?? ??? ????????? ???, ??????? ???????? ??? ???? ???????? ?????? ?? ????????????? ?? ??? ??, ?????? ?? ????? ??? ??? ?? ??????? ???? ???? ??? ??? ?????????? ?? ???? ?? ?? ???????? ??? ?????? ???????? ???? ???? ?? ?? ??????? ?? ?? ???????? ???? ????? ???? ??? ??????? ???? ?? ?? ?????? ?? ????????? ??? ?????? ???????, ????????????? ??, ?? ?????? ?? ????????????? ?? ????????????? ?? ??? ???? ?? ??? ?????? ????"

7. Counsel for the applicant further submits that the complaint filed by the opposite party no.2 was not maintainable inasmuch as he was not authorized to file such a complaint because it ought to have only been filed by the appropriate authority i.e. the District Magistrate and in absence of such a complaint, the entire proceedings of the complaint cannot be allowed to proceed. To buttress his argument, he placed reliance on the judgment of this Court dated22.03.2024 passed in Application U/s 482 No. 2998 of 2014 (Dr. Vinod Kumar Bassi Vs. The State of U.P. and another).

8. Sri S.K. Chandraul, learned AGA appearing for the State-opposite party no.1 states that from the perusal of the complaint a prima facie case is made out against the applicant. During the inspection, he was found present there. The discharge application of the applicant has rightly been rejected by the trial court, therefore, it cannot be said that no prima facie case is made out against the applicant.

9. Heard learned counsel for the parties and perused the record.

10. The aforesaid complaint was filed by Dr. Shirish Jain-Additional Chief Medical Officer, Gautambudh Nagar against the applicant and one Dr. Keshav Anand, stating that he had been authorized by the District Magistrate/ Appropriate Authority to file the complaint under Section 28 of Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (which will hereinafter be referred to as 'the Act of 1994'). The complaint alleges that the provisions of the aforesaid act were being violated in a diagnostic centre owned by the co-accused persons where the applicant was carrying out Ultra Sonographic Examination of patients.

11. Learned counsel for the applicant has submitted that Section 28 of the Act of 1994 provides as follows:-

"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 the State Government, as the case may be, or the Appropriate Authority; or

(b) a person who has given notice of not less thanfifteen 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."

12. The manner of appointment of 'appropriate authority' is provided in Section 17 (1) & (2) of the Act of 1994 as follows:-

"17. Appropriate Authority and Advisory Committee.?

1. The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union Territories for the purposes of this Act.

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 sub-section (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 organisation; and

(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 Prevention of Misuse) Amendment Act, 2002:

Provided further that any vacancy occurring therein shall be filled 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.

13. In exercise of the aforesaid provision, the State Government has issued a Notification dated 30.11.2007 providing that the District Magistrate shall be the Appropriate Authority to lodge a complaint, under Section 17(3)(a) read with 17(3)(b) of the act of 1994. The submission of the learned counsel for the applicantis that as the Additional Chief Medical Officer is not the appropriate authority, he could not have filed a complaint for any alleged violation of the provisions of the aforesaid Act and the trial court could not have taken cognizance of the complaint which had not been filed by the appropriate authority.

14. When the Act of 1994 clearly provides that no Court shall take cognizance of any offence under the Act except on a complaint made by the appropriate authority, the court has no jurisdiction to take cognizance of any offence except on a complaint made by the appropriate authority. There can be no dispute against the fact that the Additional Chief Medical Officer is not an appropriate authority and he has no authority to file a complaint for any alleged offence committed under the provisions of the aforesaid Act and the Government Order. Therefore, as the complaint itself was incompetent, the trial court had no jurisdiction to take cognizance of the offences alleged in the complaint and to summon the applicant for being tried for the alleged offences.

15. Apart from this, even the reply filed by the opposite party no.2 shows that the applicant was not at all involved in operating the ultrasound machine. The statement given by the opposite party no.2 makes it clear that the applicant was not even remotely involved in carrying out the fetus test.

16. Accordingly, the application is allowed.

17. The order dated 13.10.2021 passed by Additional Session Judge/Fast Track Court No.2, Gautambudh Nagar in Criminal Revision No. 52 of 2019 and the order dated 23.01.2019 passed by Chief Judicial Magistrate, Gautam Buddh Nagar in complaint Case No. 4657 of 2018 (Dr. Shishir Jain Additional Chief Medical Officer Vs. Dr. Keshav Ananda and one another) as well as entire proceeding of Case No. 4657 of 2021, under Sections 23 and 25 of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Police Station Noida Sector-24, District Gautambudh Nagar, pending in the court of learned Chief Judicial Magistrate, Gautambudh Nagar, are hereby quashed.

Order Date :- 23.5.2024

Prajapati