Bombay High Court
Dr Nitin Bankatlal Mandhane vs The State Of Maharashtra And Anr on 20 December, 2017
Bench: Prakash Deu Naik
(1) Cri.WP.375 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.375 of 2017
. Dr.Nitin Bankatlal Mandhane
Age: 44 years, Occu.: Medical-
Practitioner,
R/o.Mantha, Tq.Mantha,
District: Jalna. ..Petitioner
VERSUS
1) The Stage of Maharashtra
Through: Public Prosecutor.
2) Sudam S/o. Tulshiram Mehetre
Age: Major, Occu.: Service as
Medical Superintendent,
Rural Hospital, Mantha,
Tq.Mantha, Dist.Jalna. ..Respondents
...
Advocate for Petitioner : Mr.S.G.Chapalgaonkar
APP for Respondents : Mr.G.O.Wattamwar
...
CORAM : PRAKASH D.NAIK, J.
RESERVED ON : 14th NOVEMBER, 2017
PRONOUNCED ON : 20th DECEMBER, 2017
JUDGMENT:-
1) The petitioner has taken exception to the order
dated 11.2.2015 passed by the Judicial Magistrate First
(2) Cri.WP.375 of 2017
Class, Jalna in Regular Criminal Case No.173 of 2011 as
well as the order dated 14.2.2017, passed by the
Additional Sessions Judge-2, Jalna, in Criminal Revision
No.32 of 2015, confirming the order dated 11.2.2015.
2) The petitioner is facing prosecution in the
proceedings pending before the Court of Judicial
Magistrate First Class, Jalna vide Regular Criminal Case
no.173 of 2011. The complaint was filed by the
respondent no.2 for offence under the provisions of Pre-
Conception and Pre-Natal Diagnostic Techniques Act, 1994
(for the sake of brevity, hereinafter referred to as
'PCPNDT Act').
3) The prosecution's case is that on 5.7.2011, the
respondent No.2 and others being the members of the
Inspection Team constituted under the PCPNDT Act visited
the Sonography Center of the petitioner at Mantha,
District Jalna. During the visit, the Panchanama was
prepared in accordance with the provisions of the Act.
(3) Cri.WP.375 of 2017
The Inspection Team noted deficiencies at the Center,
which were recorded in the Panchanama. It is alleged
that board required under the PCPNDT Act was not
displayed at conspicuous part of Sonography room or
waiting room. The copy of the PCPNDT Act was not
available for the patients. The information regarding
visiting of Radiologist and portable Sonography machine,
used by petitioner, was not available. Complete Referral
chits were not available. Abstract Sheet was not
properly maintained. F-Forms were not filled-up and the
record was not kept in order. Thereafter a complaint was
filed on 19.9.2011 before the Court of Judicial
Magistrate First Class, Mantha for the offences u/s 23,
25, 26 and 29 of the PCPNDT Act. The complaint was filed
in the name of Dr.Sudam Tulshiram Mehetre, Medical
Superintendent, Rural Hospital, Mantha. The Trial Court
took cognizance of the complaint and issued the process
against the accused.
4) The Trial Court thereafter proceeded to record the
(4) Cri.WP.375 of 2017
evidence before charge. The complainant examined himself
as PW-1. The prosecution also examined PW-2 in support
of the complaint. After recording the said evidence, the
petitioner preferred an application for discharge before
the Trial Court. The learned Magistrate by order dated
11.2.2015 rejected the said application. The petitioner
thereafter preferred Criminal Revision Petition No.32 of
2015 before the Court of Sessions. The said Revision
Petition was also rejected by order dated 14.2.2017.
Hence, the petitioner has preferred the present petition
challenging the proceedings and the order passed by the
Court.
5) The learned counsel for the petitioner submitted
that there is no evidence to frame charge against the
petitioner and the Trial Court ought to have discharged
the petitioner from the said proceedings. It is
submitted that the petitioner is a Medical Practitioner
and conducting his own Clinic at Mantha, which has been
registered under the provisions of Section 19 of the
(5) Cri.WP.375 of 2017
PCPNDT Act. He has obtained the consent of Dr.Manoj
Malpani, who is a Radiologist to render his services at
the Center of the petitioner. The appropriate authority
had granted the registration of the Center in the name of
the petitioner. He is rendering services strictly in
accordance with the provisions of the Act. He has
maintained necessary records in the format described
under the Act and the Rules. The report in respect of
procedure carried by Radiologist at the Center is also
maintained and forwarded to the appropriate authority.
The Panchanama was recorded by the raiding party without
following the provisions of Section 12 r/w Section 30 of
the PCPNDT Act. There was no independent witness at the
time of the inspection. The Panchanama was prepared,
which do not show that any material was seized at the
time of inspection. The complaint was filed in the name
of Dr.Sudam Mehetre, Medical Superintendent (Rural)
Hospital, Mantha, however, it was drafted by
Dr.N.A.Talwadkar, who is not an appropriate authority
within the meaning of Section 17 of the PCPNDT Act. In
(6) Cri.WP.375 of 2017
view of Section 28 of the PCPNDT Act, the complaint
presented by unauthorized person ought not to have been
entertained and no cognizance could have been taken. It
is further submitted that there are discrepancies in the
evidence of the witnesses examined by the prosecution.
The respondent no.2 had made an application to the Court
and requested time to produce original Form, which was
not produced along with the complaint. It is submitted
that the evidence of witnesses does not support the
prosecution's case and the discrepancies in their
evidence does not warrant framing of charge. Both the
Courts have rejected the application mechanically. The
entire case of the prosecution is based on Panchanama
dated 5.7.2011. Nothing was seized at the Center of the
petitioner and there was no independent witness. The
evidence of PW-1 shows that the copies of F-Form, which
was submitted 4-5 months ago to the office of the Civil
Surgeon were procured by the witness and produced before
the Court. This document cannot be treated as evidence.
No deficiency is found in the F-Form. There is
(7) Cri.WP.375 of 2017
inconsistency in the evidence of PW-1 and PW-2. There
was no evidence before the Court to frame charge and
therefore the Court ought to have discharge the
petitioner.
6) The learned counsel for the petitioner relied upon
the decision in the case of Dr.Sai w/o Santosh Shiradkar
Vs. State of Maharashtra and Another [2016 SCC Online
Bom., 8812] and another decision of this Court in the
case of Dr.Payal w/o.Shreekant Chobe Vs. State of
Maharashtra and others delivered in Criminal Writ
Petition No.250 of 2015.
7) Learned APP submits that the evidence before the
Court prima-facie makes out a case for framing the
charge. There is prima-facie evidence to proceed with
the trial. The Trial Court cannot go into a roving
enquiry at this stage. The alleged infirmities contended
by the petitioner are not sufficient to discharge the
petitioner from the case. Although the complaint was
(8) Cri.WP.375 of 2017
present by another person, it was filed in the name of
the appropriate authority and even the person, who has
presented the complaint is a Medical Superintendent and
the appropriate authority within the meaning of
provisions of law. In support of this submission,
learned APP placed reliance on the Circulars. It is
submitted that the Trial Court has correctly exercised
the powers while rejecting the application for discharge,
which order has been confirmed by the Revisional Court.
The affidavit affirmed by Dr.Sudam Mehatre, the
complainant in the present proceedings is placed on
record. In the said affidavit dated 10.11.2017, it is
stated that the show cause notice was issued to the
petitioner on 5.7.2011. The reply was submitted by the
petitioner stating that he may be permitted to continue
the Sonography Center as he has complied with all the
conditions. Learned APP submitted that that the said
reply to the show cause notice indicates that the
petitioner had admitted the irregularities. The
authority, who filed the complaint is an appropriate
(9) Cri.WP.375 of 2017
authority. The deponent of the affidavit had prepared
the complaint and signed on 11.8.2011. Since he was out
of station, Dr.N.A.Talwadkar was a Incharge Medical
Superintendent for a period of three months. Hence, he
presented the complaint prepared by the deponent. Hence,
he acted in the capacity of Incharge (Rural) Hospital,
Mantha and there is no illegality in presenting the
complaint by him. The copy of the Circular dated
12.2.2008 was annexed to the said reply. The accused has
violated the provisions of PCPNDT Act and more
particularly Rule 17(2) and Section 19 Rule 9(4), Rule
23, 25, 26 and 29. It is submitted that prima-facie case
is made out against the petitioner and therefore he is
not entitled for the discharge.
8) I have gone through the documents on record. In
pursuant to filing of the complaint and issuance of
process, the evidence of witnesses is recorded. The
petitioner preferred an application for discharge, which
is rejected and thereafter preferred revision
( 10 ) Cri.WP.375 of 2017
application, which is also rejected. While considering
the application for discharge u/s 245 of Code of Criminal
Procedure, the Court is required to see whether there is
prima-facie evidence to frame charge. The Court cannot
hold a roving enquiry at that stage. The complainant and
the evidence of two witnesses prima-facie makes out a
case for proceeding with the matter. Assuming that in
the cross-examination of the said witnesses, whose
evidence was recorded before framing charge some
discrepancies have been brought on record that would not
discard the evidence of said witnesses at the stage of
framing charge. It would be open to the petitioner to
agitate the grounds raised by him on the basis of the
evidence, which is brought on record and which is likely
to be brought on record at the time of conclusion of the
trial. The submission about the discrepancies in the
Panchanama, the infirmities, contradictions in the
evidence of the witnesses can be looked into during the
trial and not while considering the application for
discharge. The primary issue raised by the petitioner
( 11 ) Cri.WP.375 of 2017
that the officer who tendered the complaint is not an
appropriate authority and therefore, the Court ought not
to have taken cognizance of the complaint is an issue
which is debatable. The complaint was filed in the name
of appropriate authority. The complaint was tendered by
another person, which according to the prosecution is
also an appropriate authority and therefore the aforesaid
aspect forms a disputed question of fact, which cannot be
considered for dropping the prosecution against the
petitioner by discharging him.
9) In the case of Dr.Sai Shiradkar (supra), this Court
has observed that the prosecution initiated against the
accused was not sustainable in law. It was observed that
the prosecution cannot be lodged in relation to minor
mistakes, omissions or Lacunae on the part of the accused
in maintaining the record. It was also observed that
while High Ranking Officer from field of Medical have
been notified as an Appropriate Authority to file
complaint, Appropriate Authority has to act as
( 12 ) Cri.WP.375 of 2017
investigator to enquire into allegations of violation of
Acts and Rules. Mere report or complaint or information
received cannot be sole basis to prosecute a person. If
complaint is enquired and investigated resulted into
collection of evidence sufficient to prosecute a person
for violation of provisions of the PCPNDT Act then only
criminal proceeding should be initiated.
10) The factual matrix in the said case is different
than which is involved in the present proceeding. It is
pertinent to note that in the present case, after
lodging the complaint, the prosecution has examined the
witnesses before charge, documents are placed on record
and their evidence prima-facie makes out a case to
proceed with the matter. Hence, the observations made in
the said decision are not applicable in this case. In
another decision in the case of Dr.Payal Chobe (supra),
it was observed that, as the post of District Civil
Surgeon is very much available at Aurangabad, the
complainant, who is Medical Officer, Health of Municipal
( 13 ) Cri.WP.375 of 2017
Corporation, cannot be held as an appropriate authority
under the said Act. The complaint is neither made by
complainant in the capacity of an Officer authorized in
that behalf by the State Government or by appropriate
authority. The facts of the present case are different
than that considered by the Court in the said decision.
11) Section 245 of the Code of Criminal Procedure
mentions that if upon taking all the evidence referred to
in Section 244, the Magistrate considers for the reasons
to be recorded that no case against the accused can be
made out which if unreported would warrant his
conviction, the Magistrate shall discharge him. Sub-
section 2 states that nothing in this Section shall be
deemed to prevent case to discharge the accused at any
previous stage if the reasons to be recorded by the
court, he considers the charge to be groundless.
12) In the light of the aforesaid provisions, the Trial
Court has rightly rejected the application for discharge.
( 14 ) Cri.WP.375 of 2017
The other decision relied upon by the petitioner in the
case of Dr.Payal Chobe (supra), this Court has observed
that the process was issued mechanically without
ascertaining and examining as to whether that complaint
is made by authority/officer/person competent to make it
as per the provisions of Section 28 of the PCPNDT Act.
13) In the present case, as stated above, the complaint
was filed in the name of the appropriate authority and it
was tendered by another person, who also claims to be an
appropriate authority. It is difficult to give a finding
in that regard while entertaining the application for
discharge.
14) The Trial Court while rejecting the application for
discharge has taken into consideration all the
submissions advanced by the petitioner accused. The
order assigns reasons for arriving at the conclusion
therein. It was observed that the complainant in this
case is Dr.Sudam Mehetre and as a matter of record, the
( 15 ) Cri.WP.375 of 2017
complaint was presented by Dr.N.A.Talwadkar. The
complainant has examined Dr.Talwadkar as witness No.3,
who has deposed that he presented the complaint as he was
Incharge Superintendent of Mantha Civil Hospital and
Dr.Mehetre, who was complainant, was at training
therefore, as per directions of the Civil Surgeon, who is
competent authority, Dr.Talwadkar filed the complaint.
He also placed on record the documents filed at Exh.32
and 33. The Court therefore, observed prima-facie that
the complaint has been presented properly. It was
further observed that perusal of evidence of C.W.-1
Dr.Sudam Mehetre, who conducted the Panchanama in
presence of C.W.2 reveals that Panchanama vide Exh.17
mentions violation. The complainant testified that at
the relevant time, he was working as Medical
Superintendent and he had formed squad comprising himself
and other three members. The Trial Court therefore
observed that there is nothing on record to show that the
complainant was not competent to file the complaint. The
Trial Court appreciated the evidence on record and also
( 16 ) Cri.WP.375 of 2017
stated that the delay prima-facie appears to be
reasonable, which is explained. Similarly, the Sessions
Court has also turned down the Revision Petition
preferred by the petitioner by giving reasons. It was
observed that the grounds for discharge agitated by the
accused are not sufficient to discharge him.
15) In the aforesaid circumstances, there is no reason
to interfere in the orders passed by the Courts below and
the proceedings initiated against the petitioner cannot
be quashed and set aside. Considering the material on
record, prima-facie case is made out to proceed with the
matter and no case for discharge is made out. No
interference is warranted in the orders passed by the
Courts below rejecting the application for discharge and
confirming the order passed by the Trial Court. Hence,
I pass the following order:-
ORDER
(I) Criminal Writ Petition No.375 of
2017 is dismissed.
( 17 ) Cri.WP.375 of 2017
(II) It is clarified that the
observations made in this order are
for considering this petition and the
Trial Court shall not be influenced by
the same during the trial.
(III) The petition stands disposed of.
[PRAKASH D.NAIK, J.]
SPT/Cri.WP.375 of 2017
