Bombay High Court

Dr. Vinita Jayesh Khadse vs The State Of Maharashtra on 6 March, 2017

Bench: N.W. Sambre

                                                                  1489.15crwp
                                   (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD
                                               
            CRIMINAL WRIT PETITION NO.1489 OF 2015 

 Dr. Vinita Jayesh Khadse,
 Age: 43 years, Occ: Medical Practitioner,
 R/o. Aradhana Hospital, Balaji Towers,
 Nerinakya, Jalgaon, Dist. Jalgaon. ..PETITIONER

          VERSUS

 1.       The State of Maharashtra

 2.       Shri. P.D. Sonwane,
          Age: 57 years, Occ: Service
          Serving with Jalgaon Municipal
          Corporation, Jalgaon,
          District Jalgaon.                          ..RESPONDENTS


 Mr V.D. Hon, Senior Advocate i/b Mr V.B. Jadhav and
 A.V. Hon, Advocates for petitioner;
 Mr S.N. Morampalle, Addl. Public Prosecutor for 
 respondent No.1;
 Mr V.D. Gunale, Advocate for respondent No.2


                            CORAM :  N.W. SAMBRE, J.

DATE : 6th MARCH, 2017

ORAL JUDGMENT :

Leave to amend the prayer clause (B).

Amendment be carried out forthwith.

2. Rule. Rule made returnable forthwith. By

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consent, heard finally.

3. The petitioner is a registered medical

practitioner and running genetic counselling centre

defined under Section 2(c) of the Pre-natal

Diagnostic Techniques (Prohibition of Sex

Selection) Act, 1994 (For short 'PCPNDT Act') by

name Aradhana Hospital at Jalgaon. The said

hospital is registered with respondent Municipal

Corporation, Jalgaon, particularly Sonography

Centre, being Registration No. MH/JL/001.

4. The District Collector, Jalgaon vide order

dated 4th June, 2012 has constituted inspection

committee consisting of Mr. P.D. Sonwane, Assistant

Commissioner, Mr. Dr. Vikal Patil, Health Officer,

Mr. D.H. Mahale, Assistant District Supply Officer

and Mr. S.N. Suryawanshi, Police Sub Inspector, as

a member of Inspection Squad, which will inspect

the Sonography Centres.

5. Pursuant thereto, said Squad visited

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Sonography Centre of the petitioner, which was run

and managed under Aradhana Hospital on 8th June,

2012 and seized 'F' form register, other papers

etc., and sealed them.

6. Subsequently, the same seal was opened in

the office of Municipal Corporation in absence of

present petitioner and following shortfalls and

discrepancies were noticed.

(i) In the seized register containing 'F' form

15th June, 2011. Serial Numbers to the 'F' form

(ii) Doctors have not certified 'F' form

from 4th January, 2010 to 15th June, 2011.

(1) Sou. Kalyani Sanjay Patil. Date of 'F' form

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(2) Sou. Bharati Dipak Sapkale. Date of 'F' form

(3) Sou. Pratibha Govind Choudhari. Date of 'F'

form register - 12th February, 2011.

(4) Sou. Rekha Santosh Donge.

(iii) General form register of patient Sou.

Archana Sanjay Dhake dated 8th January, 2011 does

not bear signature of said patient.

(iv) In the 'F' form register against Column

No.10, instead of filling up blank, same is

scratched.

(v) In the 'F' form register for the period

from 4th January, 2010 to 15th June, 2011 in Column

Nos. 15 and 17, without filling blanks, there are

scratches against the said column numbers.

(vi) In Column Nos. 18 and 19 of 'F' form

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are get blank.

(vii) In the M.T.P. register on 'I' form dated

23rd April, 2011 of patient Sou. Jotsna Nitin

Patil, Doctor has not certified the same.

7. In view of above shortfalls, complaint

came to be filed in the Court of Chief Judicial

Magistrate at Jalgaon being Regular Criminal Case

No. 666 of 2012 by Municipal Corporation, Jalgaon

through its Assistant Commissioner, for offence

punishable under Section 23 of the Pre-natal

Diagnostic Techniques (Prohibition of Sex

Selection) Act, 1994 and Rule 9 sub rule (4) of the

Rules framed thereunder. Learned Chief Judicial

Magistrate, Jalgaon, pursuant to the provisions of

Section 212 of the Code of Criminal Procedure on

4th December, 2012 issued process against the

petitioner, which order was subject matter of

challenge before revisional Court in Criminal

Revision Application No. 100 of 2013. Revisional

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Court, by judgment and order, dated 17th October,

2015, was pleased to dismiss the revision.

Aggrieved thereby, petitioner-original accused

preferred present writ petition.

8. Heard Mr. Hon, learned Senior Counsel for

the petitioner, Mr. Gunale, learned Counsel for the

respondent-complainant and learned Additional

Public Prosecutor for respondent-State.

9. Mr. Hon, learned Senior Counsel for the

petitioner would invite attention of this Court to

the various grounds and amongst other, the

important ground, according to him, is non-

competency of the complainant to file complaint

against the petitioner. According to him,

provisions of Section 17 of the PCPNDT Act empowers

the State Government to issue notification

authorizing the officers to file complaint. He

would then invite attention of this Court to the

notification dated 17th June, 2011 stating that

only Deputy Commissioner of Municipal Corporation

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is authorized as appropriate authority to file

complaint pursuant to provisions of Section 23 of

the PCPNDT Act. According to him, in the present

case, though complaint is filed for and on behalf

of Municipal Corporation, however, one Mr. P.D.

Sonwane, Assistant Commissioner has filed said

complaint, who in law, is not authorized to file

complaint. He would also place on record the

contentions that incomplete and rustic information

is formed to be basis for initiation of prosecution

against the petitioner for violating the provisions

of PCPNDT Act and rules framed thereunder though

such material is of hardly any consequences and not

mandatory to be maintained.

10. The other submission of Mr. Hon, learned

Senior Counsel for the petitioner is, even if what

has been alleged in the complaint is taken to be

true at its face value, still there are hardly

chances of the petitioner getting conviction.

11. Per contra, Mr. Gunale, learned Counsel

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for the respondent-complainant would invite

attention of this Court to the order of the

District Collector, Jalgaon dated 4th June, 2012

passed in exercise of powers under the provisions

of PCPNDT Act, wherein Squad was constituted headed

by Mr. P.D. Sonwane, Assistant Commissioner to

carry out inspection of various sonography centres

and to initiate proceedings under PCPNDT Act.

Another submission is made that Chief Medical

Officer of Municipal Corporation has informed the

constitution of committee and authorization in

favour of respondent-complainant for initiating the

complaint under PCPNDT Act, which was addressed to

the Commissioner of Municipal Corporation.

According to him, as the Assistant Commissioner was

acting at the dictum and upon authorization to that

effect by District Magistrate/Collector, it has to

be inferred that there is proper delegation of

power in favour of the respondent-Assistant

Commissioner to file complaint. He would then

place reliance upon the judgment of this Court in

the matter of Suo Motu vs State of Gujrat reported

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in 2009 CRI.L.J. 721 and judgment of this Court in

the matter of Suhasini Umesh Karanjkar (Dr) vs

Kolhapur Municipal Corporation and another reported

in 2011(4) Mh.L.J. 21.

12. Having considered the categorical

submissions of the respective parties, it is

required to be noted that pursuant to the scheme

framed under Section 17 of the PCPNDT Act, it is

the State Government, who by notification in

Official Gazette, can appoint one or more

appropriate authorities in the State or in any part

of the State. It is an admitted position on record

that Mr. Sonwane, Assistant Commissioner of

Municipal Corporation, Jalgaon, (as he was posted

at the relevant time) was never appointed as

appropriate authority pursuant to the provisions of

Section 17 of the PCPNDT Act by the State

Government under the Act. It is such authority, who

is appointed under Section 17 of the PCPNDT Act, in

law, is authorised and has every right to file

complaint pursuant to source of power under the

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provisions of PCPNDT Act.

13. In the case in hand, the complaint is

styled to be one for and on behalf of Municipal

Corporation, Jalgaon, where said Mr. Sonwane was

posted as Assistant Commissioner. There is no

authorization brought to the notice of this Court

either in the form of pleadings or documentary

evidence authorizing the said Assistant

Commissioner to file complaint on behalf of the

Municipal Corporation. Though reliance is sought

to be placed upon the order issued by the District

Magistrate/Collector, Jalgaon forming Squad to

carry out inspection of sonography centres,

however, I hardly see any provision under the

PCPNDT Act, which authorize the District

Magistrate/Collector, Jalgaon to file complaint

against proprietor/person managing such sonography

centre for violation of provisions of PCPNDT Act.

The communication of Chief Medical Officer of

Municipal Corporation though is sought to be relied

upon by learned Counsel for respondent-complainant,

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as Commissioner never objected to the authority of

Assistant Commissioner to file complaint, in my

opinion, in absence of powers to delegate, the

authority to file complaint for and on behalf of

Municipal Corporation and in absence of

notification under Section 17 of the PCPNDT Act by

the State Government, authorizing the said

Assistant Commissioner to file complaint under

PCPNDT Act against the petitioner, complaint and

proceedings taken out, in my opinion, are not

sustainable being filed by the person, who is not

competent and authorized to do so under the PCPNDT

Act. As is rightly observed by this Court in the

matter of Sukhada Dilip Mulay (Dr.)(Mrs.) vs State

of Maharashtra and others reported in 2013(1)

Mh.L.J.638, particularly in paragraph-12. It is

required to be noted that the view expressed herein

above could get support from the said observations.

Additional reliance can also be placed on the

judgment of this Court rendered in Writ Petition

No.1637 of 2013 (Dr. Kalpana w/o Pundlik Jamdade

vs. The Assistant Municipal Commissioner, Nanded

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Waghala City Municipal Corporation, Nanded & ors)

decided on 13th March, 2013, particularly paragraph

Nos.4, 8 and 9 thereof, which read thus :

"4. The learned senior counsel further submits that the action of suspension of registration is by the Assistant Municipal Commissioner who is not an Appropriate Authority under the statute. By notification the State has designated the Appropriate Authorities and the Assistant Municipal Commissioner is not designated as Appropriate Authority. As per Sec. 17 of the P.C.P.N.D.T Act, it is only the Government who by notification in official Gazette appoint the Appropriate Authorities. Even the order of suspension is passed without issuance of show cause notice. Sub Section 1 and 2 of Sec. 20 of the P.C.P.N.D.T Act have not been followed. There was no case made out to resort to Sub Sec. 3 of Sec. 20 of the P.C.P.N.D.T Act. Sub Sec. 3 of Sec. 20 of the P.C.P.N.D.T Act is an exception wherein the Appropriate Authority if finds it expedient in the public interest and for the reasons to be recorded can suspend the registration without issuance of notice. The case is not

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spelt out to invoke Sub Sec. 3 of Sec. 20 of the P.C.P.N.D.T Act. Only because some irregularities are found in maintenance of the forms, the action has been taken. Even the same are not the irregularities.

8. The Appropriate Authority is laid down U/Sec. 17 of the P.C.P.N.D.T Act. It is State Government who by notification in the official Gazette can appoint one or more Appropriate Authority for any part of the State or whole of State. The notification is produced on record and the persons designated as Appropriate Authorities are spelt out in the said notification. The Assistant Municipal Commissioner is not designated as Appropriate Authority under the said notification. No other notification is placed on record showing that the Assistant Municipal Commissioner is designated as an Appropriate Authority. The reliance is placed on the order dated 17.06.2011 issued by the Commissioner of Nanded Waghala Municipal Corporation, wherein it is said that the Assistant Commissioners as Ward Officers would be entitled to take action under the P.C.P.N.D.T Act. Sec. 17 of the P.C.P.N.D.T Act does not authorize the Commissioner of

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Municipal Corporation to appoint Appropriate Authorities. It is only the Appropriate Authorities designated under the Statute or appointed by the State Government in particular state would be entitled to act as Appropriate Authorities. When a statute lays down a particular thing to be done in particular manner, it has to be done in that manner only. The Assistant Municipal Commissioners are nowhere shown as Ward Officers. The order is also passed in the capacity of Assistant Municipal Commissioner, Nanded. In absence of any notification in that behalf by the State Government, the said Assistant Municipal Commissioner cannot be an Appropriate Authority. The action taken by him of suspending the registration would be without authority and deserves to be set aside. Even otherwise, the registration of petitioner's centre is suspended since 19.07.2011 i. e. for more than one and half year.

9. As far as sealing of the machine is concerned, the same is contemplated U/Sec. 30 of the P.C.P.N.D.T Act read with Rules 11 and 12 of the P.C.P.N.D.T Rules. The Appropriate Authority or any person

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authorized in that behalf can resort to action of sealing sonography machine, if the said authority has reason to believe that the said machine may furnish evidence of commission of offence under the P.C.P.N.D.T Act. In the present case, the order sealing the machine does not spell out this fact. The authority has to arrive at a conclusion upon subjective satisfaction based on objective assessment of the facts. Perusal of the order sealing the machine it is manifest that the said machine has been sealed as the record has not been properly maintained."

14. In view of above observations, as the

complaint by the unauthorized person is not

maintainable, the Court is left with no option but

to quash the complaint and prosecution initiated

pursuant thereto against the petitioner. Once this

Court has formed opinion that the complaint and

proceedings are not sustainable, this Court need

not to deal with other issues as are sought to be

canvassed by learned Senior Counsel.

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15. In the backdrop of what has been observed

herein above, it will be appropriate, in my