Dr. Khushal S/O. Narayan ... vs State Of Maharashtra Thr. Auth. ...
2017 Latest Caselaw 6639 Bom

 apl.24.17                                       1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

             CRIMINAL  APPLICATION(APL)  NO. 24 OF 2017

 Dr.Khushal S/o Narayan Ghodeshwar,
 Aged about 60 years,Occ-Radiologist,
 Apex Sonography Centre, Mama Chowk,
 Gondia,Tahsil and District-Gondia.                           .....  APPLICANT

       ...V E R S U S...

 State of Maharashtra,
 Through Its authorised Officer,
 under PCPNDT Act,R/o K.T.S.
 General Hospital,Gokndia                                    ...NON-APPLICANT
 -------------------------------------------------------------------------------------------
 Shri R.D.Thakur,  Advocate for the   applicant.
 Shri Indranil Damle, A.P.P. for State-non-applicant.
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- AUGUST 31,2017

ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

by consent of learned counsels for the parties.

2] Against the applicant, a complaint case bearing

Criminal Case No.621/2011 is filed in respect of the offence under

Pre-conception and Pre-natal Diagnostic Techniques (Prohibition

of Sex Selection)Act, 1994. The applicant is questioning the

correctness of the order passed by learned Sessions Judge,Gondia

in Criminal Revision No.92/2013 by which learned Revisional

Court dismissed the revision application filed by the present

applicant questioning the correctness of the order passed by

learned Judicial Magistrate First Class,Gondia dated 26/2/2013

below Exh.14 rejecting the application for discharge.

3] Complainant Dr.Naseen Akhatar, a authorised officer

and member of appropriate authority under Pre-conception and

Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)Act,

1994,visited a centre at Gondia City Scan Centre in which two

sonography machines were registered under the Pre-conception

and Pre-natal Diagnostic Techniques (Prohibition of Sex

Selection)Act, 1994. However, at the time of inspection only one

sonography machine was found available in the said centre and

one machine was found to be missing. During the enquiry it was

informed to the said Committee that the said missing machine

from Gondia City Scan Centre is transferred in favour of the

present applicant. Even the applicant is stating that the said

machine was purchased by him from said Gondia City Scan Centre

under sale agreement dated 31/8/2010. The complaint further

proceeds that the Committee then, visited the sonography centre

of the present applicant i.e. Apex Sonography Centre,Gondia, that

time, it was found in addition to one registered machine another

machine was installed. The machine which was found at Gondia

City Scan Centre duly registered is G.E.Logic 3 (Colour Doppler)

and whereas the machine which was found unregistered in the

Apex Sonography Centre,Gondia run by the present applicant is

also same one.

Therefore, the complaint was filed seeking prosecution

under Sections 23 and 25 of the Pre-conception and Pre-natal

Diagnostic Techniques (Prohibition of Sex Selection)Act, 1994.

4] Evidence before charge was conducted before learned

Magistrate, Thereafter, the application for discharge was moved

and same was rejected by learned Magistrate on 26/2/2013. After

recording the evidence of complainant before charge the learned

Magistrate directed framing of charge below Exh.1 on

17/9/2013 which was the subject matter before the learned

Revisional Court.

5] According to learned counsel for applicant, after

purchase of machine from Gondia C.T.Scan Centre, had moved an

application before the authority in Form-A on 3/9/2010 and he

has paid the requisite fee also. He invited my attention to the said

application alongwith copy of the receipt showing payment of the

amount. He further submitted that in view of Sub-Rule 5 of Rule 6

of the rules made under the said Act, it is the duty of the authority

to communicate about rejection of the application or grant of

certificate. Nothing that sort has been done and therefore, there is

no material to frame charge against the present applicant.

6] I am afraid that submissions of learned counsel for the

applicant could be entertained in view of specific provisions of

Sections 18 and 19 of the Pre-conception and Pre-natal Diagnostic

Techniques (Prohibition of Sex Selection)Act, 1994. The learned

Judge of the Revisional Court has rightly considered the

provisions of the Act.

7] Rule 6, framed under the Pre-conception and Pre-natal

Diagnostic Techniques (Prohibition of Sex Selection)Act, 1994

dealt with certificate of registration. It deals with the procedures

for obtaining certificate. There is no substantial provision in the

Pre-conception and Pre-natal Diagnostic Techniques (Prohibition

of Sex Selection)Act, 1994 to show that in the absence of

communication of the rejection of the application for registration

there may be any 'deemed registration' of a particular machine. In

absence of that, it cannot be said that at the relevant time the

applicant was holding any valid licence.

8] If there is material which gives even rise to grave

suspicion against accused is sufficient for framing of charge. The

degree of the evidence in respect of the framing of charge and the

degree of evidence for appreciating the prosecution case for

conviction or acquittal are altogether different. The learned

Revisional Court in my view has not committed any mistake in

dismissing the revision.

9] In view of the fact that, at the time when the centre of

the applicant was visited that time the applicant was not holding

any certificate in respect of the machine in question. In that view

of the matter, the application is not having any merits and same is

liable to be dismissed.

The application is dismissed.

The interim order passed by this Court on 29/6/2017 stands vacated.

Rule is discharged.

JUDGE

kitey