Gujarat High Court
District Appropriate Authority ... vs Kalpana Vaidh on 23 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/4772/2023 ORDER DATED: 23/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4772 of 2023
In R/CRIMINAL APPEAL NO. 581 of 2023
With
R/CRIMINAL APPEAL NO. 581 of 2023
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DISTRICT APPROPRIATE AUTHORITY THRO MINAXI CHAUHAN
Versus
KALPANA VAIDH
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Appearance:
MS RV ACHARYA(1124) for the Applicant(s) No. 1
MR. AUM M KOTWAL(7320) for the Respondent(s) No. 1
MS. M.H. BHATT, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 23/08/2023
ORAL ORDER
1. Heard Ms. R.V. Acharya, learned advocate on record for the
applicant-original complainant, Mr. Aum M. Kotwal, learned advocate
on record for the respondent-original accused and Ms. M.H. Bhatt,
learned APP appearing for the respondent-State.
2. With consent and request of learned advocates appearing for
the respective parties, this application seeking leave to appeal as well
as criminal appeal is taken up for final hearing taking into
consideration the issue involved.
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3. The appropriate authority-Chief District Health Officer, District
Panchayat, Vadodara has approached this Court seeking leave to
appeal against the judgment and order dated 13.12.2022 passed by
learned Chief Judicial Magistrate First Class, Vadodara in Criminal
Case No.36698 of 2004. The learned Magistrate has proceeded to
dismiss the complaint by passing order below Exh.1, noticing on
erroneous ground that the mandatory provisions under Section 28 (1)
(b) of the Pre Conception and Pre-natal Diagnostic Techniques Act
(Regulation and Prevention) (for short " the Act") as well as the rules
has not been complied with.
4. Learned advocate for the applicant, at the outset, has invited
attention of this Court to the reasons assigned by the learned
Magistrate while passing the impugned order. Learned advocate for
the applicant has referred to and relied upon Section 28 of the Act. It
is submitted that the learned Judge has failed to take into
consideration the provisions of Section 28 of the Act. It is submitted
that in fact, the mandatory provision has been followed in the present
case. She has further submitted that the complaint has been filed at
the instance of the appropriate authority, who is the Chief District
Health Officer attached with District Panchayat, Vadodara. She
has further submitted that in fact, the notification has
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been issued by the State Government on 09.11.2001 appointing the
Chief District Health Officer of the concerned district panchayat as the
appropriate authority to pursue the proceedings arising out of the
said act. She has therefore, urged this Court to grant leave to appeal
as well as appeal and to quash and set aside the impugned order. It is
further submitted that since the respondent-accused has been
discharged solely on the aforesaid ground, the matter may be
remanded back to the concerned trial court and to be decided on
merits.
5. Learned advocate appearing for the respondent-accused has
relied upon the reasons assigned by the learned Magistrate. However,
he is unable to dispute the submissions made by the learned advocate
for the applicant.
6. Considering the submissions made by learned advocate
appearing for the respective parties and having perused the reasons
assigned by the learned Magistrate as well as the grounds raised in
the present appeal, the Court is of the view that the appeal deserves
consideration. Hence, this application seeking leave to appeal is
hereby allowed.
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7. At this stage, it would be appropriate to look into the relevant
provisions of Act. Section 28 of the Act reads as under:
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.
8. From the plain reading of the aforesaid Section, it is borne out
that the filing of the complaint at the instance of the appropriate
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authority appointed by the State Government pursuant to the said
notification is sufficient compliance of the aforesaid provision. The
learned Magistrate committed error in noticing the fact that there was
no compliance of Section 28 of the Act. The applicability of Clause (b)
of Section 28(1) the Act would come into play in case where the
complaint was to be pursued at the instance of the person other than
the appropriate authority. The term "person" has been explained,
which may include social organization, whereas in the present case,
the complaint has been lodged at the instance of appropriate
authority. Hence, this appeal is hereby allowed. The judgment and
order dated 13.12.2022 passed by learned Chief Judicial Magistrate
First Class, Vadodara in Criminal Case No.36698 of 2004, is hereby
quashed and set aside. Rule is made absolute to the aforesaid extent.
9. Since the complaint was dismissed solely on the ground of non-
compliance of the provisions of Section 28(1)(b) of the Act, the
original complaint stands revived to its original file. Let the
proceedings before the trial court be expeditiously disposed of
preferably within a period of Six Months from the date of receipt of
this order.
10. Learned advocates appearing for the respective parties are
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requested to co-operate before the trial court in expeditious disposal
of the criminal case. All the contentions of the respective parties are
kept open before the trial court.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
