Bombay High Court
Dr. Neeta Rajesh Patil (Khedekar) vs State Of Maharashtra, Through ... on 23 August, 2017
Bench: P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.66 OF 2014
Dr. Neeta Rajesh Patil (Khedekar),
aged : major, occupation : Medical
Practitioner, r/o Khandala Road,
Chikhali, Taluq Chikhali, District :
Buldana. ... Petitioner
- Versus -
1) State of Maharashtra, through
Public Prosecutor, Buldana.
2) Mrs. Meenal Vijay Kutumbe,
aged major, occupation : Medical
Officer Class-I, Competent Authority,
r/o Govt. Rural Hospital, Chikhali,
Taluq Chikhali, District Buldana. ... Respondents
-----------------
Shri N. Moharir, Advocate for petitioner.
Shri S. Sirpurkar, Additional Public Prosecutor for respondents.
----------------
CORAM : P.N. DESHMUKH, J.
DATED : AUGUST 23, 2017
ORAL JUDGMENT :
Heard Shri Moharir, learned Counsel for petitioner and
Shri Sirpurkar, learned Additional Public Prosecutor for respondents.
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2) Challenge in this petition is to order dated 10/12/2013 passed
by learned Sessions Judge, Buldana thereby allowing revision preferred
by petitioner against order dated 17/7/2012 passed by learned Judicial
Magistrate, First Class, Chikhali in Criminal Case No.112/2012 issuing
process against her for the offences punishable under Sections 29(1)
and 5 read with Rule 9(4) of the Preconception and Prenatal Diagnosis
Techniques (Prohibition of Sex Selection) Act, 1994 and Rules framed
thereunder.
3) Learned Sessions Judge on going through the record and
proceedings and on hearing learned Counsel for the parties, by the
impugned order allowed the revision and on quashing order of issuance
of process, remitted matter back to learned trial Court for passing fresh
order after considering entire material on record. In the impugned order,
learned revisional Court even granted liberty in favour of prosecution to
place on record of trial Court all important original documents and
directed learned trial Court to decide afresh the aspect of issuance of
process against petitioner.
4) Shri Moharir, learned Counsel for petitioner, has submitted
that the impugned order passed by learned revisional Court, on the face of
it, is illegal in view of the fact that by remitting matter back to learned
trial Court, prosecution is allowed to produce all important original
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documents, which are further directed to be considered by learned trial
Court afresh before issuing process. Another aspect, which is heavily
canvassed by learned Counsel for petitioner, is about non examination of
complainant by learned trial Court before order issuing process came to be
passed.
5) Shri Sirpurkar, learned Additional Public Prosecutor for
respondents, has supported the impugned order passed by learned
revisional Court and contended that learned trial Court has rightly
directed to consider aspect of issuance of process afresh by giving liberty
in favour of prosecution to place on record all important original
documents.
6) In view of submissions advanced as aforesaid, so far as liberty
given to prosecution to place on record all important original documents is
concerned, it appears that documents, which were considered by learned
Magistrate were xerox copies and with regard to that, learned revisional
Court found it fit to quash the impugned order granting further liberty in
favour of prosecution to produce on record all important original
documents before trial Court for its perusal. In view of that, there
appears no reason to interfere with that part of the order except that
prosecution is granted liberty to place on record original documents only
in respect of which xerox copies are already on record. In other words,
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prosecution shall not place on record any other original document before
learned trial Court of which xerox copy is not on record.
7) So far as issue of non examination of complainant before
passing order of issuance of process is concerned, by now, law on this
aspect is well settled by the Division Bench of this Court in Maharaja
Developers and another vs. Udaysingh Pratapsinghrao Bhonsle and
another (2007 Cri.L.J. 2207) wherein issue referred for consideration of
the Division Bench was whether it is mandatory for the Magistrate to
examine the complainant, who has filed complaint under Section 138 of
the Negotiable Instruments Act with affirmation as regards truthfulness of
the facts mentioned in the complaint before issuing process. Said issue
has been replied in affirmative by referring to various cases and the case
of N. Harihara Iyer vs. State of Kerala (2000 Cri. L.J. 1251 (Kerala)
where in para 19 thereof, it is observed thus :
"The enquiry envisaged under Section 200 is for ascertaining the
truth or falsehood of the complaint and also for ascertaining
whether there is any evidence in support of the complaint so as to
justify the issue of process. Therefore, it is incumbent on the
Magistrate taking cognizance on a complaint to examine upon oath
the complainant and his witnesses present, if any, to satisfy himself
as to the veracity of the complainant. The object is to test whether
the allegations make out a prima facie case to enable him to issue
process. It is undisputed that the taking of cognizance of offence
under the said Section has to precede the taking of sworn
statement of the complainant and that cognizance should precede
the recording of the sworn statement."
Perusal of the impugned order dated 17/7/2012 passed by learned
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Magistrate issuing process against petitioner does not reflect if above
procedure is followed before issuing the process though there is reference
to perusal of complaint filed by respondent no.2.
8) In that view of the matter, petition is partly allowed. The
impugned order dated 17/7/2012 passed by learned Judicial Magistrate,
First Class, Chikhali in Criminal Case No.112/2012 issuing process
against the petitioner is quashed and set aside. The impugned order
dated 10/12/2013 passed by learned Sessions Judge, Buldana in Criminal
Revision No. 20/2013 is modified, thereby granting liberty to prosecution
to place on record only such original documents, copies of which are
already placed on record of learned trial Court.
Having considered the fact that cases under the
Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 are to be decided expeditiously, learned trial Court
shall consider the issue of issuance of process afresh expeditiously and
preferably within three months from the date of receipt of writ of this
Court.
9) Rule is made absolute in the above terms. No order as to
costs.
JUDGE
khj
