Bombay High Court
Kavita Pramod Kamble (Londhe) vs The State Of Maharashtra And Anr on 30 November, 2017
Bench: A.M. Badar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.554 OF 2015
DR.KAVITA PRAMOD KAMBLE (LONDHE) )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA & ANR. )...RESPONDENTS
Mr.M.S.Mohite a/w. Mr.J.Shekhar i/b. J.Shekhar & Co., Advocate
for the Applicant.
Mr.A.R.Kapadnis, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 30th NOVEMBER 2017
JUDGMENT :
1 This is a revision petition by the original accused in
Regular Criminal Case No.318 of 2011 decided on 28 th February
2014 by the learned Judicial Magistrate First Class, Karmala,
District Solapur. The learned trial court, by this judgment and
order, was pleased to convict the revision petitioner/accused of
offences punishable under Section 23 of the Pre-Conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)
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Act, 2003, (hereinafter referred to as PCPNDT Act for the sake of
brevity) for contravention of Sections 5(2) and 6, for
contravention of Section 4(3) read with Rule 9(4), 10(1A) of the
Pre-natal Diagnostic Techniques (Regulation and Prevention of
misuse) Amendment Rules 2003 (hereinafter referred to as PNDT
Rules for the sake of brevity), for contravention of Rule 9(8) of
PNDT Rules, for contravention of Section 5 of PCPNDT Act read
with Rule 10 of PNDT Rules and for contravention of Rule 19(4),
Rule 17(1) and Rule 17(2) of PNDT Rules. For contravention of
Sections 5(2) and 6 of PCPNDT Act, for contravention of Section
4(3) of PCPNDT Act read with Rule 9(4), 10(1A) of PNDT Rules
as well as for contravention of Section 5 of PCPNDT Act read with
Rule 10 of PNDT Rules, the revision petitioner/accused is
sentenced to undergo rigorous imprisonment for 3 years apart
from payment of fine of Rs.10,000/- in default, to undergo further
simple imprisonment for 2 months, on each count. For
contravention of Rule 9(8) of PNDT Rules punishable under
Section 23 of the PCPNDT Act, the revision petitioner/accused is
sentenced to suffer rigorous imprisonment for 6 months and to
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pay a fine of Rs.5,000/-, in default, to undergo further simple
imprisonment for 1 month. For contravention of Rule 19(4),
Rule 17(1) and 17(2) of PNDT Rules punishable under Section 23
of the PCPNDT Act, the revision petitioner/accused, on each
count, is sentenced to suffer rigorous imprisonment for 3 months
apart from payment of fine of Rs.5,000/- and in default, to
undergo further simple imprisonment for 1 month. All
substantive sentences were directed to run concurrently by the
learned trial court, by this impugned judgment and order.
2 The revision petitioner/accused carried this judgment
of conviction and consequent sentence imposed on her in Criminal
Appeal bearing no.57 of 2014, which ultimately came to be
dismissed by the learned Additional Sessions Judge, Barshi, by the
judgment and order dated 25 th November 2015. That is how, the
revision petitioner/accused is invoking revisional jurisdiction of
this court for challenging her conviction and resultant sentence for
alleged contravention of the provisions of PCPNDT Act as well as
PNDT Rules framed thereunder.
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3 The revision petition came up for hearing of Criminal
Application No.66 of 2016 whereby the revision petitioner/
accused has prayed for suspension of conviction recorded against
her by the courts below. Shri Kapadnis, the learned APP
appearing for the respondents insisted that instead of deciding the
application for suspension of sentence, the revision petition itself
should be heard finally. The learned advocate for the revision
petitioner/accused agreed for adopting this course of action.
That is how, the revision petition was heard finally as record and
proceedings were already called and available with this court.
4 Heard Shri Mohite, the learned advocate appearing for
the revision petitioner/accused. He argued that the revision
petition needs to be allowed for the simple reason that the
complaint, as framed and filed for alleged violation of the
provisions of PCPNDT Act as well as PNDT Rules framed
thereunder, was not maintainable as the same was not filed by the
Appropriate Authority. It is argued on behalf of the revision
petitioner/accused that the Appropriate Authority can authorize
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any person to lodge a complaint but the Appropriate Authority
cannot appoint another person as Appropriate Authority under the
PCPNDT Act. In the case in hand, PW5 Sub-Divisional Officer
Mrs.Vidyut Varkhedkar had not authorized complainant
Dr.C.D.Veer, the Medical Superintendent to lodge the complaint on
behalf of the Sub-Divisional Officer against the revision petitioner/
accused. Even if it is assumed that PW5 Mrs.Vidyut Varkhedkar,
Sub-Divisional Officer, had authorized somebody else to lodge the
complaint on her behalf, she being the Appropriate Authority, then
also, it needs to be kept in mind that the authorization was to the
Medical Officer and not to the Medical Superintendent. Evidence
of this witness shows that these two posts are totally different.
Shri Mohite, the learned advocate further argued that PW5
Mrs.Vidyut Varkhedkar has admitted that she has not even raided
the hospital of the revision petitioner/accused in the capacity of
the Appropriate Authority under the PCPNDT Act. She accepted
the fact that Medical Officer and Medical Superintendent are two
different posts and she had ordered the Medical Officer as per her
letter Exhibit 25 to do the needful in the matter. The learned
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advocate further argued that the complaint filed by PW1
Dr.C.D.Veer as well as his evidence shows that he claimed himself
to be the Appropriate Authority under the PCPNDT Act, being
appointed vide Notification dated 6th November 2001. However,
the Notification dated 6th November 2001 is not appointing the
Medical Superintendent of the Sub-District Hospital as the
Appropriate Authority, and therefore, the learned trial court ought
not to have taken cognizance of the offence alleged in the said
complaint, which was not by the Appropriate Authority.
5 Shri Mohite, the learned advocate, further argued that
persons conducting the raid on the hospital of the revision
petitioner/accused are not examined and copy of panchnama was
not given to the revision petitioner/original accused. PW1
Dr.C.D.Veer, who has lodged the complaint, had not even visited
the hospital of the revision petitioner/accused at the time of the
raid or thereafter. The learned advocate argued that ladies named
Varsha Deshpande and Shaila Jadhav, at whose instance the entire
episode had taken place are not examined by the prosecution. He
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assailed the conviction of the revision petitioner/accused on the
ground that affidavit at Exhibit 33 sworn by PW2 Prerna Bhillare
was on the stamp paper purchased on 24th August 2010, but it is
seen that the contents of the affidavit were scribed on that stamp
paper on 23rd August 2010 itself i.e., prior to purchase of the
stamp paper. This makes the prosecution case suspect.
6 Shri Kapadnis, the learned APP appearing for the
respondents i.e. the State and the Appropriate Authority justified
the impugned judgments and orders by arguing that the
Government Resolution dated 6th November 2001 at Exhibit 50
makes it clear that the Medical Superintendent of the Sub-District
Hospital is an Appropriate Authority to discharge the functions
under the PCPNDT Act as well as PNDT Rules framed thereunder,
within the jurisdiction of the Taluka in which the said hospital is
situated. Therefore, in submission of Shri Kapadnis, the learned
APP, PW1 Dr.C.D.Veer was empowered to lodge a complaint of
violation of PCPNDT Act as well as PNDT Rules framed thereunder
and to maintain the same before the Competent Authority. Shri
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Kapadnis, the learned APP, further argued that evidence of
witnesses examined by the prosecution establishes contravention
of several provisions of the PCPNDT Act as well as PNDT Rules
framed thereunder by the revision petitioner/accused, who was
owner of the said hospital. He, therefore, submitted that the
revision petition is liable to be dismissed.
7 I have carefully considered the rival submissions and
also perused the entire record and proceedings.
8 At the outset let us put on record what are the
averments made in the criminal complaint filed by PW1
Dr.C.D.Veer, Medical Superintendent, Sub-District Hospital,
Karmala, against the revision petitioner/original accused.
Paragraph 1 of that complaint needs reproduction and it reads
thus :
"1) I, Dr.C.D.Veer, Medical Superintendent, Sub-Dist.
Hospital, Karmala, and Dist. Solapur is appointed at
Takuka appropriate authority for Karmala Taluka by
Govt. notification under Chapter V."
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It is further averred in the complaint lodged by complainant/PW1
Dr.C.D.Veer that in discharge of his duties under the PCPNDT Act,
he came to know that the revision petitioner/accused is possibly
indulged in illegal procedure of detection of sex of foetus of some
pregnant ladies, and therefore, he decided to sent a decoy patient
with the help of Shaila Jadhav, PW4 Maya Pawar and PW2 Prerna
Bhillare. PW2 Prerna Bhillare, being a pregnant lady, was selected
as a decoy patient. She approached the revision petitioner/
accused on 24th August 2010 with Shaila Jadhav and PW4 Maya
Pawar. The revision petitioner/accused subjected PW2 Prerna
Bhillare to sonography test and told her that the foetus is male.
Rs.4,000/- were paid to the revision petitioner/accused, but no
receipt was issued to PW2 Prerna Bhillare. Shaila Jadhav then
reported the incident to PW5 Vidyut Varkhedkar, Sub-Divisional
Officer, on 25th August 2010. PW5 Vidyut Varkhedkar, then,
conducted inspection of the Krushna hospital and directed the
complainant to take legal action. Statements of PW2 Prerna
Bhillare and PW4 Maya Pawar were recorded. Sonography
machine was sealed. Search and seizure was conducted. With
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this, it is further pleaded in the complaint that offences are
inclusive of sex determination, non-displaying of board non-
availability of PCPNDT Act, non-filling of Form No.F, non-signing
of declaration, non-obtaining the consent and non-submission of
report to the Appropriate Authority. This is the gist of entire
pleading in the criminal complaint filed against the revision
petitioner/accused.
9 After filing of the complaint, evidence before Charge
was recorded. Charge was framed and explained to the revision
petitioner/accused. She pleaded not guilty and claimed trial.
Then, following witnesses came to be examined by the
prosecution, apart from adducing documentary evidence.
a) PW1 Dr.C.D.Veer - the complainant,
b) PW2 Prerna Bhillare - the decoy patient,
c) PW3 Dr.Prashant Karanjkar - panch to seizures,
d) PW4 Maya Pawar - the person who accompanied the
decoy patient,
e) PW5 Vidyut Varkhedkar - the Sub-Divisional Officer.
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10 After hearing the parties, on recording statements of
the revision petitioner/accused under Section 313 of the Cr.P.C.,
the learned trial Magistrate was pleased to hold that the
complainant is an Appropriate Authority to lodge the complaint
for violation of the PCPNDT Act as well as PNDT Rules. It is
further held that the revision petitioner/accused had determined
the sex of the foetus by taking sonography of PW2 Prerna Bhillare
and communicated the gender of the foetus as male. The learned
trial Magistrate further held that the revision petitioner/accused
has failed to maintain record in Forms "G" and "F". She failed to
sent monthly report to the Appropriate Authority. The revision
petitioner/accused failed to display her registration certification
and notice for information of the public that disclosure of the sex
of the foetus is prohibited under the law. It is further held by the
learned trial Magistrate that the revision petitioner/accused failed
to keep a copy of the PCPNDT Act and PNDT Rules framed
thereunder, at her hospital. The learned trial Magistrate concluded
that the revision petitioner/accused had violated the provisions of
Sections 4(3), 5, 6, 19(4) of the PCPNDT Act and the provisions of
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Rules 9(4), 10, 10(1A), 17(1) and 17(2) of PNDT Rules.
Accordingly, she came to be convicted and sentenced as indicated
in the opening paragraph of the judgment.
11 The revision petitioner/accused has invoked revisional
jurisdiction of this court to assail conviction and sentence
recorded against him by both courts below. It is well settled that
normally revisional jurisdiction is to be exercised only in
exceptional cases where there is glaring defect in procedure and
where there is manifest error on point of law which has
consequently resulted in miscarriage of justice. The evidence
cannot be re-appreciated or re-appraised and finding of fact can
be decided only if it is perverse or if it suffers from error of law.
Sufficiency of evidence cannot be a ground to set aside the finding
of fact recorded by the court. If on the basis of evidence on record
no reasonable man could come to the conclusion arrived at by the
courts below, the revisional court can interfere with the impugned
judgments and orders. Keeping in mind this limited extent of
jurisdiction of this court in the case in hand, let us ascertain
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whether the impugned judgments and orders of the courts below
suffer from perversity or error of law.
12 The main contention of the revision petitioner/accused
before the Appellate Court was to the effect that the complainant
is not an Appropriate Authority under the PCPNDT Act and
therefore, the complaint, as framed and filed, is not maintainable.
Other grounds on merits of the prosecution case were also urged
before the learned Appellate Court. The learned Appellate Court
reproduced the provisions of Sections 28 and 17 of the PCPNDT
Act and concluded that by virtue of the Notification relied by the
accused, the Sub-Divisional Officer i.e. PW5 Vidyut Varkhedkar
was also an Appropriate Authority. The learned Appellate Court
further held that the Medical Superintendent of Rural hospital is
equal to that of Sub-District Hospital. The learned Appellate
Court then held that the learned trial court rightly appreciated the
factual scenario in the light of provisions of Sections 17 and 28 of
the PCPNDT Act and concluded that PW1 Dr.C.D.Veer is
competent to lodge the complaint.
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13 As the learned Appellate court has not given any
independent reasons on this aspect, it is apposite to quote that the
learned trial Magistrate, by the impugned judgment and order,
came to the conclusion that the Notification dated 6th November
2001 (Exhibit 50) is the Notification appointing the
Superintendent of the Taluka Hospital as the "Appropriate
Authority". The learned trial Magistrate further held that the
State had appointed the Medical Superintendent of the Sub-
District Hospital as Appropriate Authority on 26th July 2011
(Exhibit 163). It is further observed that there was no Notification
which empowered the Superintendent of the Sub-District Hospital
to act as Appropriate Authority under Section 17 of the PCPNDT
Act. By placing reliance on observations of this court in Criminal
Writ Petition No.3509 of 2011 decided on 11th June 2013, the
learned trial Magistrate came to the conclusion that Dr.C.D.Veer,
Medical Superintendent of Sub-District Hospital is an Appropriate
Authority. The learned trial Magistrate further observed that PW1
Dr.C.D.Veer was also authorized to file complaint as per the
directions given by PW5 Vidyut Varkhedka, Sub-Divisional Officer,
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vide letter at Exhibit 25, and therefore, he is an Appropriate
Authority under the PCPNDT Act.
14 At the outset, we may note that the short controversy
involved in the instant case is, whether respondent No.2 herein i.e
original complainant Dr.C.D.Veer who was holding the post of
Medical Superintendent, Sub-District Hospital, Karmala, District
Solapur, can be termed as the Appropriate Authority notified
under Section 17(2) of the PCPNDT Act and whether the private
criminal complaint lodged by him in the capacity of holder of the
post of the Medical Superintendent, Sub-District Hospital,
Karmala, for contravention of the provisions of PCPNDT Act and
Rules framed thereunder is maintainable. In other words this
Court will have to examine whether the Medical Superintendent
of the Sub-District Hospital, Karmala, District Solapur is notified
by the State Government under Section 17(2) of the PCPNDT Act
as the "Appropriate Authority" for the area under the jurisdiction
of that Hospital. It is not the case of the respondent No.2/original
complainant that respondent No.2 Dr.C.D.Veer, Medical
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Superintendent, Sub-District Hospital Karmala has been
authorized by the State Government or by the "Appropriate
Authority" to lodge the Criminal Complaint bearing Regular
Criminal Case No.318 of 2011, against the revision petitioner/
original accused. On the contrary, averments in paragraph 1 of
that private criminal complaint are to the effect that Dr.C.D.Veer,
Medical Superintendent of the Sub-District Hospital, Karmala,
District Solapur is appointed as the Taluka Appropriate Authority
and notified under Chapter V of the PCPNDT Act by the State
Government. Perusal of the complaint filed by complainant
Dr.C.D.Veer, Medical Superintendent of the Sub-District Hospital,
Karmala shows that he acted as an Appropriate Authority under
the PCPNDT Act for filing the subject criminal complaint which
ultimately resulted in conviction of the Revision Petitioner.
15 For deciding whether, respondent No.2 Dr.C.D.Veer
Medical Superintendent Sub-District Hospital, Karmala was an
Appropriate Authority or not, one will have to take a brief resume
of the relevant provisions of the PCPNDT Act as well as the Rules
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framed thereunder. Section 17(2) and (3) of the PCPNDT Act
confers power on the State Government to appoint Appropriate
Authorities and the relevant portion of this Section reads thus:
"17. Appropriate Authority and Advisory
committee :
(1) ...........
(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 subsection (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
organization; and;
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(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 Prohibition of
Misuse) Amendment Act, 2002;
Provided further that any vacancy occurring
therein shall be filed 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 or the Central Government, as
the case may be may deem fit."
16 Perusal of these provisions makes it clear that the State
level Appropriate Authority is required to be multi-member
Authority but if an Appropriate Authority is appointed for any part
of the State, then, it can comprise of officer of such rank, as the
State or Central Government as the case may be, deem fit. Thus,
any officer can be appointe by the State as an Appropriate
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Authority for any part of the State by notification in the Official
Gazette.
17 At this juncture, it is apposite to note that as per the
provisions of Section 17(4) of the PCPNDT Act, the Appropriate
Authority is required to discharge several functions and one
amongst them is to investigate complaint for breach of the
provisions of the PCPNDT Act as well as the Rules framed
thereunder and to take immediate action. Section 19 provides for
issuance of certificate of Registration by the Appropriate Authority,
after holding necessary enquiry and after giving due regard to the
advice of the Advisory Committee. Section 20 makes a provision
for cancellation or suspension of the Certificate of Registration by
the Appropriate Authority after following due process as
prescribed therein. Section 17-A of the PCPNDT Act confers power
of summoning any person in possession of any information
relating to violation of the provisions of the Act and the Rules,
apart from direction for production of documents or material
object and issuance of Search Warrant. Section 30 empowers the
Appropriate Authority for Search and Seizure of record etc.,
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including any material object, if it has reason to believe, that the
same may furnish evidence of the commission of an offence
punishable under the said Act and the Rules. Suffice it to put on
record that the Appropriate Authority appointed by the State is a
kingpin to carry out several duties and functions under the
PCPNDT Act and is mainly responsible for the implementation of
the provisions of the said Act.
18 In order to examine whether there is an express legal
bar under the PCPNDT Act for entertaining criminal complaint
instituted against the petitioner vide Regular Criminal Case No.
318 of 2011 one will have to consider the provisions of Sections
27 and 28 from Chapter VII of the said Act which deals with the
offences and penalties. For the sake of convenience it is necessary
to re-produce the provisions of Sections 27 and 28 of the PCPNDT
Act which reads thus :-
"27 Offence to be cognizable, non-bailable
and non compoundable ─ Every offence under this
Act shall be cognizable, non-bailable and non-
compoundable."
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"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 State Government, as the case may
be, or the Appropriate Authority; or
(b) a person who has given notice of not less than
fifteen 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. "
19 Perusal of provisions of Section 28 shows that the
Court is debarred from taking cognizance of an offence under the
PCPNDT Act except on the complaint made by the concerned
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Appropriate Authority or by an officer authorized for making
complaint by the Central or the State Government, as the case
may be. Even any officer authorized by the Appropriate Authority
for instituting the criminal proceedings can also lodge the
complaint. In the case in hand, as stated in foregoing para, it is
not the case of prosecution that the private complaint bearing
Regular Criminal Case No. 318 of 2011 is instituted by an officer
under the authorization of the concerned Appropriate Authority.
Similarly, it was not the case of respondent No.2/original
complainant that the said complaint was instituted by the
complainant he being authorized in that behalf by the State
Government. It is specific case of the prosecution as seen from the
perusal of pleadings in the complaint bearing No. Regular
Criminal Case No.318 of 2011 that respondent no.2/original
complainant Dr.C.D.Veer had lodged the said criminal proceedings
as a holder of the post of the Medical Superintendent, Sub-District
Hospital, Karmala. Version of the prosecution unfolded during
adducing evidence is to the effect that the post of Medical
Superintendent, Sub-District Hospital, Karmala is notified by the
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State Government in the Official Gazette as an Appropriate
Authority in view of the notification dated 6th November 2001
(Exhibit 50) issued by the Public Health Department of the State
of Maharashtra.
20 Careful perusal of the provisions of Section 28 of the
PCPNDT Act which deals with cognizance of offences under the
said Act reveals that it prohibits initiation of prosecution for any
offence under the said Act except on a complaint made by the
Appropriate Authority concerned, or any officer authorized for the
said purpose by the Central or State Government as the case may
be or by any officer authorized for this purpose by the Appropriate
Authority. No doubt, apart from these persons, a private person
can also institute prosecution under this Act after fulfilling the
conditions prescribed by Section 28 of the said Act. Thus,
provision contained in Section 28(1) of the PCPNDT Act does not
contemplate the lodging of a private criminal complaint for the
offences under the said Act by any person other than the person
empowered in the said Section. The bar for institution of
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prosecution is at the threshold itself and the Court taking
cognizance of an offence punishable under the PCPNDT Act is
duty bound to satisfy itself that the complaint is lodged by any of
the Officer/person authorized to do so as per the provision of
Section 28 of the PCPNDT Act. Provision of Section 28 of the
PCPNDT Act mandates that the complaint for the offence
punishable under the said Act can only be made by the
Officers/persons authorized under the said Section. In absence of
such duly filed criminal complaint, the court is not empowered to
take cognizance of the alleged offences. So far as the instant case
is concerned, respondent no.2 Dr.C.D.Veer has lodged the private
criminal complaint bearing Regular Criminal Case No. 318 of
2011 purportedly acting as an Appropriate Authority being holder
of the post of Medical Superintendent, Sub-District Hospital,
Karmala District, Solapur.
21 It is trite that if the statute provides for a thing to be
done in a particular manner, then it must be done in that manner
alone. All other modes or methods of doing that thing must be
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deemed to have been prohibited. This proposition of law was
stated firstly in Taylor
vs. Taylor 1. The Judicial Committee
adopted it in Nazir
Ahmed vs. King Emperor 2 and then this
principle is followed by the Hon'ble Apex Court in series of
judgments.
22 In the matter of Hussein Ghadially @ M.H.G.A.
Shaikh & Ors. vs. State Of Gujarat 3, in para 17 of its judgment,
Hon'ble Supreme Court has held thus:-
''A careful reading of the above leaves no manner of
doubt that the provision starts with a non obstante
clause and is couched in negative phraseology. It
forbids recording of information about the
commission of offences under TADA by the Police
without the prior approval of the District
Superintendent of Police. The question is whether
the power of approval vested in the District
Superintendent of Police could be exercised by either
the Government or the Additional Police
Commissioner, Surat in the instant case. Our answer
to that question is in the negative. The reasons are
1 (1876) 1 Ch.D.426
2 (1936) 38 Bom.L.R. 987
3 2014 AIR SCW 4236
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not far to seek. We say so firstly because the statute
vests the grant approval in an authority specifically
designated for the purpose. That being so, no one
except the authority so designated, can exercise that
power. Permitting exercise of the power by any other
authority whether superior or inferior to the
authority designated by the Statute will have the
effect of re-writing the provision and defeating the
legislature purpose behind the same - a course that
is legally impermissible. In Joint Action Committee
of Air Line Pilots' Association
of India (ALPAI)
and Ors. vs. Director General of Civil Aviation
and Ors . (2011)
5 SCC 435 , this Court declared
that even senior officials cannot provide any
guidelines or direction to the authority under the
statute to act in a particular manner."
23 At this juncture, it is apposite to quote relevant
observation of the Hon'ble Apex Court in the case of A.K. Roy &
another vs. State of Punjab and Others 4. While considering the
provision of Section 20(1) of the Prevention of Food Adulteration
Act 1954 dealing with cognizance and trial of offences under the
said Act, it is held thus, by the Hon'ble Apex Court :-
4 AIR 1986 SC 2160
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"A careful analysis of the language of S.20(1) of the
Act clearly shows that it inhibits institution of
prosecutions for an offence under the Act except on
fulfillment of one or the other or the two conditions.
Either the prosecutions must be instituted by the
Central Government or the State Government or a
person authorised in that behalf by the Central
Government or the State Government, or the
prosecutions should be instituted with the written
consent of any of the four specified categories of
authorities or persons. If either of these two
conditions is satisfied, there would be sufficient
authority for the institution of such a prosecution for
an offence under the Act. The provision contained in
S.20(1) of the Act does not contemplate the
institution of a prosecution by any person other than
those designated. The terms of S.20(1) do not
envisage further delegation of powers by the person
authorised, except that such prosecution may be
instituted with the written consent of the Central
Government or the State Government or the person
authorised. The use of the negative words in S.20(1)
"No prosecution for an offence under this Act .. shall
be instituted except by or with the written consent
of" plainly make the requirements of the section
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imperative. That conclusion of ours must necessarily
follow from the well known rule of construction of
inference to be drawn from the negative language
used in a statute stated by Craies on Statute Law,
6th edn., p. 263 in his own terse language :
"If the requirements of a statute which prescribe the
manner in which something is to be done are
expressed in negative language, that is to say, if the
statute enacts that it shall be done in such a manner
and in no other manner, it has been laid down that
those requirements are in all cases absolute, and
that neglect to attend to them will invalidate the
whole proceeding."
"Where a power is given to do a certain thing in a
certain way, the thing must be done in that way or
not at all. Other modes of performance are
necessarily forbidden. The intention of the
Legislature in enacting S.20(1) was to confer a
power on the authorities specified therein which
power had to be exercised in the manner provided
and not otherwise. "
24 Keeping in mind this exposition of the Hon'ble Apex
Court, it becomes clear that as Section 28 of the PCPNDT Act in
terms provides for the category of persons who are empowered to
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institute the prosecution for the offences under the said Act, no
person other than the one falling in the category of persons
mentioned in Section 28 of the PCPNDT Act is empowered to
institute the prosecution. The complaint for the offences under the
PCPNDT Act as such can be filed only by the Appropriate
Authority concerned or by any officer authorized for this purpose
by the Central or the State Government as the case may be, or by
the Appropriate Authority apart from a private person on giving
notice of not less than 15 days in the prescribed manner to the
Appropriate Authority. Unless and until the complaint for the
offence punishable under the PCPNDT Act is instituted by any of
these Officers/persons, the Court is not empowered to take
cognizance of the offence alleged in the said complaint. Any other
officer howsoever high ranking he may be in the hierarchy cannot
institute the prosecution for the offence punishable under the
PCPNDT Act and complaint if any made by such unauthorised
complainant cannot be validly entertained.
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25 Now let us examine whether the post of Medical
Superintendent, Sub-District Hospital, Karmala, District Solapur is
notified as an Appropriate Authority and whether respondent
no.2/original complainant Dr.C.D.Veer who was holding this post
can lodge the complaint in respect of the offence punishable under
the PCPNDT Act so as to enable the Court to validly take
cognizance of the offences alleged therein. The Notification dated
6th November 2001 (Exhibit 50) issued by the Public Health
Department of the State Government proved during the course of
his evidence by the respondent no.2/original complainant for
demonstrating that the complainant Dr.C.D.Veer is an Appropriate
Authority for area under the jurisdiction of the Sub-District,
Hospital at Karmala Municipal reads thus : -
" NOTIFICATION
Public Health Department,
Mantralaya, Mumbai 400 032
th
Dated 6
November 2001
No.PRACHINI-2001/1545/CR-349 FW-III,
In exercise of the powers conferred by sub-
Pre-natal section (2) read with sub- section (3) of
Diagnostic Section 17 of the Pre-natal Diagnostic
Techniques Techniques (Regulation and Prevention
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(Regulation of Misuse) Act, 1994 (57 of 1994) and of
and all of other powers enabling it in that
Prevention behalf, the 1994 Government of
of Misuse) Maharashtra is hereby Please to appoint
Act, 1994 the Medical Superintendent of Rural
Hospital at every Taluka level in the State
of Maharashtra, to be the Appropriate
Authority for the respective area under
jurisdiction of the purpose of the said ACT.
By order in the name of the
Governor of Maharashtra
Sd/-
(S.C.Mondkar)
Under Secretary to Government of Maharashtra
To,
The Secretary to Governor,
The Private Secretary to Chief Minister,
The Private Secretary to Deputy Chief Minister,
The Private Secretary to Minister (Public Health)
The Private Secretary to State Minister (Public
Health)
The Private Secretary to all Ministers/ State
Ministers;
The Chief Secretary, Government of Maharashtra,
Mantralaya, Mumbai
The Additional Chief Secretary (Home Department),
Mantralaya, Mumbai
The Director General of Health Services, Mumbai
The Additional Director of Health Services, Family,
Welfare, Maternal and Child Health & School
Health, Pune
The Director Medical Education & Research,
Mumbai
The Director General of Information and Public
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Relations, Mantralaya, Mumbai
The Director Indian Council of Medical Research,
New Delhi
The Secretary to Government of India, Ministry of
Health and Family Welfare, Department of Family
Welfare, Nirman Bhavan, New Delhi.
The Joint Director of Health Services,
(Medical),Mumbai
The Director of Information and Publicity,
Maharashtra State, Mumbai,
The Medical Superintendent, Rural Hospital(All)
The Chairman, State Women Commission,
Maharashtra State, Mumbai
All Divisional Commissioners / Chief Officers /
/Administrators of all Municipal Corporations
All Collectors
The Deputy Directors of Health Services of all
circles,
All Civil Surgeons, General Hospitals
The Chief Executive officers of all Zilla Parishad
The Accountant General, Maharashtra I/II,
Mumbai/Nagpur."
26 This Notification dated 6th November 2001 at Exhibit
50 as well as Exhibit 157, makes it clear that the State
Government, in exercise of powers conferred by Section 17 of the
PCPNDT Act had appointed the "Medical Superintendent of Rural
Hospital at every Taluka level" to be the Appropriate Authority for
the respective areas under its jurisdiction, for the purpose of
PCPNDT Act. This was the Notification prevalent at the time of
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lodging the complaint by PW1 Dr.C.D.Veer against the revision
petitioner/accused on 13th September 2010. Therefore, the
subsequent Notifications, if any, issued after 13 th September 2010
by the State, appointing other Officers as "Appropriate Authority"
will not be of any relevance for adjudicating the case in hand. In
this view of the matter, the Notification dated 26 th July 2011
(Exhibit 163) in respect of appointment of the Appropriate
Authority will not govern the case in hand.
27 Perusal of the complaint makes it explicitly clear that
the same was filed by Dr.C.D.Veer in his capacity of the "Taluka
Appropriate Authority". It is not pleaded in the complaint bearing
no.318 of 2011 that the said complaint is filed by
complainant/PW1 Dr.C.D.Veer upon being authorized by an
Appropriate Authority. PW1 i.e. complainant Dr.C.D.Veer in the
opening paragraph of his evidence has said so in unequivocal
terms :
"Since 2009 I am working as a Medical Supdt. at
Karmala Sub-Dist. Hospital. I am also appointed as
an appropriate authority under the provisions of
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Pre-Conception and Pre-natal Diagnostic Techniques
Act. By way of a Govt. Reso. of Maharashtra Govt.,
Public Health Dept., dt.6/11/2001 I am appointed
as an appropriate authority. I correct myself that it
was a notification. The same is annexed with my
complaint."
28 In his cross-examination also, PW1 Dr.C.D.Veer in
paragraph 10 as categorically stated that he is vested with the
power of the Appropriate Authority as per the Notification issued
in the year 2001 which is at Exhibit 50. PW1 Dr.C.D.Veer, on oath,
stated that he was working as a Medical Superintendent of the
Sub-District Hospital at Karmala. Thus, what is claimed by the
prosecution is that the complainant i.e. PW1 Dr.C.D.Veer is an
Appropriate Authority appointed by the State as per the provisions
of Section 17 of the PCPNDT Act and the complaint case against
the revision petitioner/accused is filed by none other than the
Appropriate Authority.
29 PW1 Dr.C.D.Veer, in his deposition, has also stated that
on 25th August 2010, at about 9.00 p.m. to 9.30 p.m., he had a
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call from the Tahsil Office, Karmala, and therefore, he went and
met the Sub-Divisional Officer(PW5 Vidyut Varkhedkar). As
stated by PW1 Dr.C.D.Veer, then, PW5 Vidyut Varkhedkar - Sub-
Divisional Officer had handed over a letter Exhibit 25 to him. The
learned trial Magistrate in paragraph 37 of its impugned judgment
and order construed this letter as authorization by the Appropriate
Authority i.e. the Sub-Divisional Officer to PW1 Dr.C.D.Veer for
filing the complaint. Let us, therefore, peruse the letter at Exhibit
25. This letter dated 25 th August 2010 is issued by the Sub-
Divisional Officer of MHADA Sub-Division and is addressed to the
"Medical Officer, Sub-District Hospital, Karmala, Solapur." After
pointing out that on 25th August 2010, at about 6.30 p.m., under
instructions from the District Collector, the Sub-Divisional Officer
along with the Medical Officer of the Sub-District Hospital,
Karmala, Taluka Health Officer, Medical Officer of the Municipal
Council and Tahsildar Karmala, inspection of Krushna Hospital
owned by the revision petitioner/accused was conducted, the Sub-
Divisional Officer i.e. PW5 Vidyut Varkhedkar by this letter has
directed the Medical Officer of the Sub-District Hospital, Karmala,
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to register offence under the relevant Act in its capacity of the
Appropriate Authority. This direction was to the Medical Officer
of the Sub-District Hospital, Karmala.
30 Bare perusal of the letter at Exhibit 25 issued by the
Sub-Divisional Officer on 25th August 2010 makes it clear that the
said letter was not addressed to the complainant i.e. PW1
Dr.C.D.Veer, who was the Medical Superintendent and not the
Medical Officer of the said Sub-District Hospital. The letter at
Exhibit 25 further makes it clear that the Sub-Divisional Officer, as
an Appropriate Authority, has not directed or authorized the
Medical Officer of the Sub-District Hospital to make a complaint in
respect of violation of the PCPNDT Act and the PNDT Rules
framed thereunder against the revision petitioner/accused on her
behalf. What is directed to the Medical Officer of the Sub-District
Hospital, Karmala, by this letter dated 25th August 2010 by the
Sub-Divisional Officer, is to register the offence under the relevant
Act in its own capacity as an Appropriate Authority. Thus, the
letter dated 25th August 2010 (Exhibit 25) issued by the Sub-
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Divisional Officer to the Medical Officer cannot be construed as a
letter by the Appropriate Authority under the PCPNDT Act
authorizing the Medical Officer to lodge a complaint in respect of
violation of the PCPNDT Act as well as PNDT Rules framed
thereunder, on behalf of the Appropriate Authority, leave apart,
the fact that the letter at Exhibit 25 does not contain any direction
to the complainant i.e. PW1 Dr.C.D.Veer, who happens to be the
Medical Superintendent of the Sub-District Hospital, Karmala, and
not the Medical Officer. Letter at Exhibit 25 itself makes it crystal
clear that there is some other officer who was working at the Sub-
District Hospital, Karmala, as the Medical Officer because it is
averred in the said letter that on 25th August 2010, at about 6.30
p.m, the hospital of the revision petitioner/accused was inspected
by the Sub-Divisional Officer in presence of the Medical Officer of
the Sub-District Hospital, Karmala. It is worthwhile to note that
evidence of PW1 Dr.C.D.Veer, Medical Superintendent of the said
hospital makes it clear that he had not accompanied the Sub-
Divisional Officer for inspecting the hospital owned by the revision
petitioner/accused on 25th August 2010. This implies that some
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officer holding the post of the Medical Officer of the Sub-District
Hospital must have accompanied the Sub-Divisional Officer (PW5
Vidyut Varkhedkar) during the course of inspection of the hospital
of the revision petitioner/accused. Evidence of complainant PW1
Dr.C.D.Veer makes it clear that he never visited the Sonography
Center or the hospital of the revision petitioner/accused on 25 th
August 2010, prior to 25th August 2010 or thereafter. Evidence of
PW5 Vidyut Varkhedkar makes it clear that the post of the Medical
Superintendent and the Medical Officer are different posts. In her
cross-examination, PW5 Vidyut Varkhedkar has candidly admitted
the fact that the letter at Exhibit 25 was containing instructions to
the Medical Officer of the Sub-District Hospital, Karmala, and post
of Medical Officer as well as post of Medical Superintendent are
different posts. PW5 Vidyut Varkhedkar, Sub-Divisional Officer,
has also candidly accepted in her cross-examination the fact that
on 25th August 2010, she had not inspected the hospital owned by
the revision petitioner/accused in her capacity as an Appropriate
Authority. She stated in the cross-examination that she raided that
hospital only under the capacity of the Sub-Divisional Officer.
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This makes crystal that even PW5 Vidyut Varkhedkar was not
acting under her authority as an Appropriate Authority during
inspection of Krushna Hospital owned by the revision
petitioner/accused on 25th August 2010. This position of the oral
and documentary evidence on record makes it clear that
complainant/PW1 Dr.C.D.Veer was neither the Appropriate
Authority nor any Officer authorized by the State or the
Appropriate Authority for filing the subject criminal complaint
against the revision petitioner/accused.
31 The learned trial Magistrate held complainant PW1
Dr.C.D.Veer as an Appropriate Authority by placing reliance on
order of this court in Writ Petition No.3509 of 2011 decided on
11th June 2013 by the learned Single Judge of this court. The said
petition was filed by the revision petitioner challenging the order
framing Charge against her. One of the challenge to the Charge
was to the effect that the complainant is not an Appropriate
Authority, and therefore, he has no locus to file the complaint.
The following are the observations of the learned Single Judge of
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this court in order dated 11th June 2013 while deciding the said
petition :
"8 Dr.Yashwant Punde, Assistant Director,
Health Services, Government of Maharashtra has
explained in his affidavit in reply to the above Writ
Petition that the subdistrict hospital, Karmala is the
Rural Hospital at taluka level, the superintendent of
which is the complainant. The said hospital was
established in the year 1970 as cottage hospital,
Karmala having 30 beds for the purpose of catering
to the persons in the taluka being a rural area. Upon
issue of Government Resolution dated 13th May,
2003, the beds in the hospital were increased from
30 to 50. Its name was changed to subdistrict
hospital, Karmala. However it continued to cater the
persons at the taluka level. Rural/ cottage hospital is
to be understood as Rural Hospital as per the
corrigendum dated 2nd January, 1995 issued by the
State Government. The hospital is formed to cater to
persons in the rural area of the Karmala. Hence the
hospital in which the complainant is the general
superintendent is the Rural Hospital entitling the
complainant to file a complaint as appropriate
authority under the Act."
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"9 Upon seeing that the complaint was
correctly filed by the correct authority, the evidence
produced by the complainant would have to be
seen..........."
32 It is, thus, clear from these observations while deciding
the writ petition challenging framing of the Charge that contents
of the affidavit in reply of Dr.Yeshwant Punde, Assistant Director,
were reproduced and it was concluded that the complaint is
correctly filed by the correct authority. Those observations and
the resultant finding is apparently prima facie in nature and it
cannot have any bearing on the result of the trial. The criminal
case is always decided by considering the evidence adduced by the
parties before the court and not by prima facie observations
recorded by any court prior to the trial of the subject criminal
case. As such, the order dated 11 th June 2013 passed by this
court in Writ Petition No.3509 of 2011 whereby the order framing
Charge was upheld, cannot be construed as conferring the status
of an "Appropriate Authority" on the complainant/PW1
Dr.C.D.Veer, who is not appointed as such by the State by
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following the procedure prescribed by Section 17 of the PCPNDT
Act. The Appropriate Authority, as discussed in foregoing
paragraphs, is required to be appointed statutorily by the State
Government, and that too, by Notification in the Official Gazette.
The opinion of affiant Dr.Yeshwant Punde, Assistant Director,
cannot confer power of an Appropriate Authority on any officer or
post, unless and until such officer or the post held by him is
notified by the State Government as an Appropriate Authority by
publishing such Notification in the Office Gazette in terms of
provisions of Section 17 of the PCPNDT Act. In this view of the
matter, prima facie observations recorded in the order dated 11 th
June 2013 passed in Writ Petition No.3509 of 2011 is of no
assistance to the respondent.
33 In view of reasons recorded in foregoing paragraphs, I
hold that the complainant in Regular Criminal Case No. 381 of
2011 i.e. Dr. C.D.Veer, Medical Superintendent, Sub-District
Hospital, at Karmala cannot be held as an Appropriate Authority
under the PCPNDT Act and the Notification dated 6th November
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2001 (Exhibit 50) is therefore of no avail to the complainant in
this regard. At the cost of repetition, I further add that the
complaint is neither made by the complainant/respondent no.2
herein in the capacity of an Officer authorized in that behalf by
the State Government or by the Appropriate Authority. As such the
learned JMFC, Karmala, District Solapur had no powers to take
cognizance of an offence under the PCPNDT Act alleged against
the present Revision petitioner/original accused in the said
complaint. When the PCPNDT Act and particularly Section 28
thereof does not contemplate institution of the prosecution by any
person/Officer other than those designated therein, it needs to be
held that complainant Dr.C.D.Veer, Medical Superintendent, Sub-
District Hospital, Karmala was not at all competent to lodge the
complaint against the present revision petitioner/original accused
for the offences punishable under the PCPNDT Act The use of the
negative words in Section 28 to the effect, "No Court shall take
cognizance of an offence under this Act except on the complaint
made by ........." clearly makes the requirement of this Section
imperative and mandatory. Thus when Section 28 of the PCPNDT
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Act prescribes the manner in which the complaint for the offence
under the PCPNDT Act should be made and when such
requirement is expressed in negative language then the complaint
under the PCPNDT Act can be filed only in the manner as has
been laid down in the said Section by the Officer/person
mentioned therein. As Section 28 of the PCPNDT Act prescribes
that the Court shall not take cognizance of the offences under the
said Act except on a complaint made by the Authority or Officer or
a person prescribed therein, others cannot lodge the complaint
regarding offence under the said Act. Permitting some other
person/Officer to institute complaint is necessarily forbidden by
Section 28 of the PCPNDT Act. Thus, the power and authority to
lodge complaint of the offence punishable under the PCPNDT Act
can be exercised only by the Authority, Officer or the person
prescribed by the provisions of the Section 28 of the PCPNDT Act.
The law laid down by the Hon'ble Apex Court in the matter of
A.K. Roy & another (supra) that where a power is given to do a
certain thing in a certain way, the thing must be done in that way
or not at all, is applicable with full force to the case in hand and as
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such it needs to be held that the subject complaint bearing
Regular Criminal Case No.318 of 2011 was not lodged by an
authority competent to lodge the same for alleged commission of
offences under the PCPNDT Act by the revision petitioner/original
accused. As such, the learned JMFC, Karmala could not have
validly taken cognizance of the offences alleged in the said
criminal complaint bearing Regular Criminal Case No.318 of
2011. As this Court is of the considered view that the complaint
bearing Regular Criminal Case No.318 of 2011 was not made by
the Authority, Officer, or Person competent to do so as per the
mandatory provisions of Section 28 of the PCPNDT Act, I do not
wish to burden this judgment by dealing with other contention
raised by the parties in respect of alleged violation of Provisions
of the PCPNDT Act as well as the Rules framed thereunder.
34 The net result of foregoing discussion makes it clear
that the impugned judgments and orders of the courts below
suffer from error of law, and hence, I proceed to pass the
following order :
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ORDER
(i) The revision petition is allowed.
(ii) Impugned Judgments and Orders passed by the Courts
below i.e. Judgment and Order dated 28th February 2014
passed by the learned Judicial Magistrate First Class,
Karmala District Solapur in Regular Criminal Case
No.318 of 2011 as well as the Judgment and Order dated
25th November 2015 passed by the learned Additional
Sessions Judge, Barshi in Criminal Appeal No.57 of 2014
(Old Criminal Revision Application No.32 of 2014)
thereby convicting the revision petitioner/original
accused of offences punishable under Section 23 of the
Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 2003 for
contravention of Section 5(2) and 6, Section 4(3) read
with Rule 9(4) and 10(1A) and under Rule 9(8) of the
Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Amendment Rules 2003, under
Section 5 read with Rule 10, under Rules 19(4), 17(1)
and 17(2) of the Pre-Natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Amendment Rules
2003 and consequently imposing the respective
sentences for commission of the said offences; are
quashed and set aside.
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(iii) The revision petitioner/accused is acquitted of all
offences alleged against her.
(iv) Her bail bond stands cancelled.
(v) In view of disposal of the revision petition, pending
Criminal Application therein bearing No.66 of 2016
stands disposed of.
(A. M. BADAR, J.)
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