Dr. Anita W/O. Ravi Chauhan ... vs Dr. Savita Ranjit Meshram, Health ...
2021 Latest Caselaw 10929 Bom

                                                               Judgment APL 174.2018.odt




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

            CRIMINAL APPLICATION (APL) NO. 174 OF 2018


Dr. Anita w/o Ravi Chauhan
(Before Marriage - Anita Rameshchandra
Ramavat) Age - 50 years, Occu - Doctor,
R/o Plot No. 27, Abhay Nagar,
                                                       .. Applicant
Rameshwari Ring Road, Nagpur.

                   Versus

Appropriate Authority under PCPNDT
Act, Dr. Savita Ranjit Meshram, Health
Officer (Medicine), Aged - 53 years,                  .. Respondent
Occu - Service, Office at Nagar Municipal
Corporation, Civil Lines, Nagpur


Mr. A. M. Jaltare Advocate for applicant.
Mr. J. B. Kasat, Advocate for respondent.



                         CORAM :         MANISH PITALE, J.

                         DATED       :   12/08/2021



ORAL JUDGMENT

By this application, the applicant who is a Doctor by

profession, has sought quashing of a criminal complaint case pending

against her in the Court of Judicial Magistrate First Class at Nagpur.

                                                                        PAGE 1    OF 10





                                                                Judgment APL 174.2018.odt




(2)                      The criminal proceeding has been initiated under

the provisions of the Pre-conception and Pre-natal Diagnostic

Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter

referred to as the 'PCPNDT Act').

(3) The proceedings in the present case stood initiated

against the applicant on the basis of an inspection allegedly conducted

on 16/07/2012 of the center of diagnostics, run by the applicant. The

inspection was carried out by assistant Appropriate Authority Dr.Heena

Kureshi and Dr.Tarranum Khan on 16/07/2012 and it was alleged that

in the center run by the applicant, the following deficiencies were

found :-

(a) Bare Act of the PCPNDT Act was not available at the reception of the premises for being made available to the patients on demand.

(b) Form "F" was not filled properly as column 11 was left blank and purpose of sonography was not mentioned in some forms.

(c) In column 8, the weeks of pregnancy were not mentioned and that name and registration number of the doctor was also not mentioned on the MNC form.

PAGE 2 OF 10

Judgment APL 174.2018.odt

(d) The registration certificate issued by the Corporation was not displayed on a conspicuous place in the clinic / center.

(e) Forms "F" and "G" under the PCPNDT Act were not properly filled, thereby showing violation of the provisions.

(4) On the basis of the said alleged deficiencies found at

the center run by the applicant, pursuant to the said inspection on

17/07/2012, the respondent No.1 claiming to be the Appropriate

Authority under the PCPNDT Act issued a show-cause notice to the

applicant. On 24/07/2012, the applicant submitted her explaination.

(5) On 15/03/2013, the respondent as the Appropriate

Authority under the PCPNDT Act filed a criminal complaint against the

applicant under Section 28 of the Act bearing Criminal Complaint Case

No.663 of 2013.

(6) The applicant filed the present application before

this Court under Section 482 of the Cr.P.C. for quashing of the

aforesaid criminal complaint case, on the ground that the respondent

was not an Appropriate Authority appointed under Section 17(2) of

the PCPNDT Act. This Court issued notice for final disposal and

PAGE 3 OF 10

Judgment APL 174.2018.odt

granted interim stay in favour of the applicant. Thereafter, this

application was admitted for final hearing. On the last few occasions

when it was listed for hearing, adjournment was granted on the

ground that according to the learned counsel appearing for the

respondent a similar issue was pending before the Hon'ble Supreme

Court.

(7) This Court has considered the said contention and

since no details about pendency of the issue before the Hon'ble

Supreme Court are forthcoming, this Court is of the opinion that the

present application need not remain pending before this Court and it

can be finally disposed of.

(8) Mr.Jaltare, learned counsel appearing for the

applicant submitted that an Appropriate Authority under Section 17(2)

of the PCPNDT Act, is such authority as is by Notification appointed in

the Official Gazette by the State the Government. The learned counsel

invited attention of this Court to a document received under the Right

to Information Act from the State Government i.e. copy of Notification

dated 16/10/2007, issued by the State Government under Section

PAGE 4 OF 10

Judgment APL 174.2018.odt

17(2) of the PCPNDT Act. By inviting attention of this Court to the

said Notification, it is submitted that amongst the officers identified as

Appropriate Authority under Section 17(2) of the PCPNDT Act Health

Officer of the Municipal Corporation is not one such officer. On this

basis, it is submitted that since the criminal complaint case has been

initiated under the PCPNDT Act by the respondent, who is admittedly

the Health Officer of the respondent Corporation, the initiation of the

complaint itself is without authority of law and that therefore, the

complaint deserves to be quashed at this stage itself. Reliance is

placed on judgment of Division Bench of this Court in the case of

Dr.Payal w/o Shreekant Chobe vs. State of Maharashtra and others

(Judgment and Order dated 16/10/2015, passed in Criminal Writ

Petition No.250 of 2015).

(9) Mr. J. B. Kasat, learned counsel has appeared on

behalf of respondent. He has not been able to deny the fact that the

Notification dated 16/10/2007, issued under Section 17(2) of the

PCPNDT Act, does not specify Health Officer of the Municipal

Corporation as one of the Officers to function as the Appropriate

Authority. He has also not been able to distinguish the aforesaid

PAGE 5 OF 10

Judgment APL 174.2018.odt

Division Bench Judgment of this Court accepting an argument

identical to the one being made on behalf of the applicant before this

Court. It is merely submitted that the issue is said to be pending

before the Hon'ble Supreme Court and that therefore, hearing of the

present applicant can be deferred.

(10) Having heard learned counsel for the rival parties,

this Court has perused the Notification dated 16/10/2007 issued by

the State Government exercising power under Section 17(2) of the

PCPNDT Act. The said Notification appoints only the following

Officers as Appropriate Authority :

Additional Collector, Sub Divisional Officer, Tahasildar, Naib Tahasildar,

Municipal Commissioner, Deputy Commissioner of Municipal

Corporation, Ward Officer of Municipal Corporation and Chief Officer

of Municipal Councils.

The said Notification does not appoint a Health

Officer of the Municipal Corporation as an Appropriate Authority.

(11) In this context Section 28 of the PCPNDT Act is

relevant and it reads as follows :-

PAGE 6 OF 10

Judgment APL 174.2018.odt

Section 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 subsection (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.

(12) The above quoted provision specifies that no Court

can take cognizance of an offence under the PCPNDT Act, except on a

complaint made by the Appropriate Authority. Since the respondent in

the present case being Health Officer of the Municipal Corporation is

not one of the Officers appointed as an Appropriate Authority, the

Court obviously cannot take cognizance as the entire criminal

proceeding has been initiated by a person not authorized to do so.

                                                                          PAGE 7    OF 10





                                                                    Judgment APL 174.2018.odt




(13)                      In a similar situation, a Division Bench of this Court,

while deciding Criminal Writ Petition No. 250 of 2015 Dr.Payal w/o

Shreekant Chobe vs. State of Maharashtra and others (supra)

accepted an identical contention, in identical set of circumstances. In

the detailed judgment of the Division Bench of this Court, various

Notifications issued from time to time by the State Government were

taken into consideration. It was noted that while earlier, in the year

1997, Civil Surgeons or Deans of Medical Colleges were appointed as

Authorized Officers, by the aforesaid Notification dated 16/10/2007,

only the above stated Officers were specifically appointed as

Appropriate Authority. In the said case also a Health Officer of

Municipal Corporation had filed a Criminal Proceeding against the

petitioner before the High Court and an identical prayer for quashing

of the complaint was made on behalf of the applicant. After taking

into consideration the aforesaid Notification dated 16/10/2007, the

Division Bench of this Court in the said judgment held as follows :-

"37] The Honourable Supreme Court examined the extraordinary power of this Court under Article 226 of the Constitution of India, so also, inherent powers under Section 482 of the Code of Criminal Procedure, 1973 in the matter of State of Haryana and others vs. Bhajanlal and others (supra) and laid down certain guidelines where the Court will exercise jurisdiction under these provisions for quashing the criminal proceedings. It is held therein that the guidelines so given

PAGE 8 OF 10

Judgment APL 174.2018.odt

cannot be inflexible or laying down rigid formula to be followed in facts and circumstance of each case. Guideline No.6 found in Para. 8.1 of the said judgment reads thus :-

"6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding in instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party."

38] It is thus clear that the powers of this Court under Article 226, 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 can be exercised for quashing the criminal proceeding when there is an express legal bar engrafted in the provisions of the concerned Act under which a criminal proceeding is instituted, to the institution and continuance of such proceedings.

39] As discussed in the foregoing paragraphs, in the case in hand, there is express legal bar to entertain the complaint for the offence punishable under the provisions of the PCPNDT Act made by the Authority/Officer/Person other than those authorized under Section 28 thereof. We have already held that the criminal complaint bearing R.C.C.No. 541 of 2013 against the petitioner is not made by the Authority/Officer/person competent to lodge the same. As such, allowing continuation of the said criminal complaint would be abuse of the process of the Court apart from waste of time and public money. We are of the view that there is no possibility of conviction in such criminal complaint which cannot be validly entertained. Continuance of such prosecution would put the accused therein, i.e. present petitioner to great oppression and prejudice. Extreme injury would be caused to the petitioner if the proceedings in such untenable criminal complaint are not quashed."

(14) The Division Bench of this Court allowed the

aforesaid writ petition and quashed the criminal complaint filed

PAGE 9 OF 10

Judgment APL 174.2018.odt

against the petitioner therein. This Court is of the opinion that in the

present application, the applicant is placed in identical circumstances

and that therefore, the present application also deserves to be allowed.

Accordingly, the application is allowed. The criminal complaint case

No.663 of 2013 pending before the Court of Judicial Magistrate First

Class and Corporation Court, Nagpur is quashed. No costs.

[ MANISH PITALE J. ]

KOLHE/P.A.

                                                                  PAGE 10    OF 10